' UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library REPORTS CASES DECIDED HIGH COURT OF CHANCERY MARYLAND. BY THEODORICK BLAND, CHANCELLOR. VOL. I. BALTIMORE: PUBLISHED BY JOSEPH NEAL. 1836 -b-lS Entered, according to the Act of Congress, in the year 1836, by Joseph Neal, in the Clerk's Office of the District Court of Maryland. STEREOTyPED BY LuCAS & NbAL. P R E F A C E. On receiving the appointment of Chancellor, I determined to make every effort to acquire a competent knowledge of the peculiar princii^les and practice of the Court of Chancer}^ of Marjiand, to which my attention had been so rarely drawn, and for which I had had, for many years in the judicial stations I previously held, so little use. Upon inquiry I soon found, that any thing like an accurate know- "^ ledge of those peculiarities was only to be gathered from _. the records themselves ; to which I therefore resorted, and after a careful perusal noted the course of proceeding, and occasionally made short digests of such cases as appeared most likely to be useful thereafter. In this way I collected a considerable mass of information, which has gi'eatly facilitated my official labours. It is of no less importance to the people than to the profession, that the peculiar principles and practice of the court, as well as the general rules of law, should be clearly made known to all ; wliich it is obvious can in no way be so well done as by the usual mode of publishing reports of cases as they have actually occurred and been disposed of. For a time I had reason to hope, that some member of the bar would report the cases as they were decided subsequent to my appointment; but when that hope failed I determined to undertake the work myself. The task, I was aware, would be attended with many difficulties and much labour ; and the more so to me, because of the manifold interruptions iv PREFACE. occasioned by the heavy current of business continually pressing through the court. On reflecting upon the nature of the undertaking I deemed it proper to begin with the earliest of my own decisions, taking them up in chronological order according to the date of the last material adjudication in each case, and to make such a selection from them as would give to the profession the greatest amount and variety of information within the smallest compass. I have rarely or never preserved my notes of the arguments of counsel after my decision has been pronounced ; and therefore it has been entirely out of my power to give even the usual skeleton of the arguments of solicitors ; many of which have been distinguished by great ability ; and from most of which I have derived much instruction. To make up in some degree for this defect, I have taken pains so to digest the pleadings, and to state the circumstances as to present a full view of all the points which had been, or could have been made in the case; and to render the decisions as useful as possible I have revised the reasons for them all, and have so recast and enlarged some as to comprehend all the points whicli ap})arcntly might have been made. In each case I have given refer- ences to all the authorities deemed pertinent and within my reach ; and have also inserted, from the records, by way of notes, short reports of a number of cases decided by my predecessors. Although Tlie C}ianccllor\s Case cannot in any way be considered as a controversy whicli had been adjudicated upon by the Court of Chancery, it is nevertheless a determina- tion of the General Assembly in relation to the sole judge of tliat tribunal which involved the examination and discussion of subjects of the most interesting nature*, and is a decision PREFACE. y of the legislative department upon a question of constitu- tional law of the most vital importance to the Chancellor in particular, and to the judicial department in general. It therefore appeared to have a most undeniable claim to go before the public in a permanent form as an associate with the decisions of that Chancellor whose constitutional securities had been so severely questioned. The discharge of my official duties has heretofore left me so little time to turn my attention to any thing else, that the preparation of this first volume of Reports has been much longer delayed than I had calculated upon. It is now however submitted to the candour of a generous and enlightened profession. TIIEODORICK BLAND. An>'apolts, December, 1835. A LIST THE CHANCELLORS OF THE STATE OF MARYLAND. RICHARD SPRIGG, appointed by the General Assembly, 3d of April, 1777; resigned March 1778. JOHN ROGERS, appointed by the Governor and Council, 20th of March 1778; died 1789. ROBERT HANSON HARRISON, 1st October 1789 ; declined accepting. ALEXANDER CONTEE HANSON, 3d October 1789; died 1806. GABRIEL DUVALL, 20th January 1806 ; declined accepting. ROBERT SMITH, 23d January 1806 ; declined accepting. WILLIAM KILTY, 26th January 1806; died 1821. JOHN JOHNSON, 15th October 1821 ; died 1824. THEODORICK BLAND, 16th August 1824. A TABLE OF THE NAMES OF CASES. N. B. Versus always follows the name of the Plaintiff; and those Cases the names of which are in italics are in the Notes. Allen V. Burke, .... 544 Armiger, Iglehart v. . . . 519 Attorney General \. J^orwood, 581 Jlisquith V. Godman . . . 317 Barnahy v. Hollingsworth, Bai-nes, Chapman v. Baker, Millar v. Bairy, Stewart v. . Beaity, Chapline v. Beat, Murdoch v. . Bennet, O Brian v. Billingslea v. Gilbert, Bicknall, Worthington v. Birchfield v. Brown, . . V. Vanderheyden Black, Ex parte Margaret Bryson v. Petty, Bowie V. Mockbee, , HiU V. . . Bozman, Cox v. Brown, Birchfield v. , Mackubin v. Bronaugh, Griffith v. Browning, Cunningham v Boushell, Rothwell v. Burch V. Scott, Burke, Allen v. Burd V. Greenleaf, . Campbell, Dorsey v. Carroll v. Parran,. , Rowlings V. Chancellor's Case, Chapline v. Beatiy 430 552 147 191 197 109 86 566 186 446 465 142 182 551 593 25 446 410 547 299 373 112 544 556 356 126 75 595 197 Chapline v. Chapline, Chapman v. Barnes, Chase's Case, Hannah K. Chase v. Manhardt , Coale V. . . , McMechen v. . . Clapham v. ClapJutm . V. Thompson Clarke, Carrie v. . . . Clause, Jansey v. , . . Coale V. Chase .... V. Garretson . . Codd V. Codd, .... Colegate D. Owings' Case Coleston, Hopper v. . . Colegate, Taylor v. . . Com' rs of Baltimore, Pascault Conner, Law v. Corrie v. Clarke Corse V. Polk . Cox V. Bozman Cowell V. Seyhrey Cunningrham v. Browning DdUam, Murphy v. Davis, Griffith v. . Deaver v. Reynolds Dew, Gittings v. Diffcnderffer v. Hillen Dorsey v. Campbell V. Dulany . ; Etchison v. V. Hammond Dorsey, Pue v. . Dorsctt, VVatldns v. TABLE OF THE CASES. Dulany, Dorsey v. , Rymer v. Duvall V. Waters Edmondson v. Frazier Estep V. Watkins . Etchison V. Dorsey Flannagan v. Krips Frazier, Edmondson v Fenwick v. Laughlin Fisher v. Keene Fornshill v. Murray Forwood, Powlson v. Fowler v. Goodwin Garretson, Coale v. Gleaves, Perkins v. Gibson's Case . . Gibson v. Tilton Gilbert, Biilingslea v. Gittings V. Dew Griffith V. Bronaugh V. Davis Godman, Aisquith v. Hammond v. Goodwin, Fowler v. Gordon, Baylor v. Gorsuch, Long v. . Greenleaf, Burd v. " Hall's Case, Margaret, Hall V. Hall . . . , Williams v. . Hammond v. Godman . Dorsey v. . Hannah K. Chase's Case Hanson, Latimer v. Harrison, Moreton v. . Hastings v. Plater Henderson, Lingan v. Hepburn v. Mollison . Hewitt V. Hewitt . . Higginson, Rickotl v. Hill V. Bowie . . . Hillen, Diffendcrffer v. 465 2^38 569 92 486 535 58-2 92 474 563 479 610 327 581 553 138 352 566 583 547 553 317 318 327 132 316 356 203 130 193 318 463 206 51 491 613 236 127 101 534 593 189 Hoffman v. Johnson . Hodges V. Mullikin Hollingsworth, Barnahy v Hopper V. Coleston Hoye V. Penn . . • Howard's Case . . Hughes' Case . . . Jansey v. Clause Jenifer v. Stone Iglehart v. Armiger Johnson, Hoffman v. Ridgely v. Jones V. Jones V. Magill , Ringgold V. Kankey, M'Komb v. Keene, Fisher v. Krips, Flannagan v. Labes V. Monker Latimer v. Hanson Laughlin, Fenwick v. Llewellin, Slye v. . Lingan v. Henderson Long V. Gorsuch . Low V. Conner . Macubin v. Brow^n McKim V. Thompson McMechin v. Chase Story McKomb V. Kankey Magill, Jones v. . . Manhardt, Chase v. Margaret Hall's Case . Mai-garet Black, Ex parte Mayer v. Tyson Millar V. Baker Mockbee, Bowie v. . Mollinson, Hepburn \ Monker, Labes v. . Moreton v. Harrison Mullikin v. Mullikin , Hodges V. TABLE OF THE CASES. XI Murdoch V. Bed .... 109 Muq:>hy v. Dallam . . . 529 INIurray, Fornshill v. . ■ . 479 Mxon, Paul V 200 J^orwood, Attorney General v. 581 Ogden V. Ogden .... 284 Oliver, Tonsry 198 0' Brian v. Bennet ... 86 Owings' Case, Colegate D. . 370 , Rebecca . . 290 Parran, CaiToll v 125 Pascault V. The Commissioners of Baltimore .... 584 Paul V. jYixon 200 Penn, Hoye v 28 Perkins v. Gleaves . . . 553 Petty, Bryson v 182 PhiUips V. Shipley . . . 51G Plater, Hastings v. ... 613 Polk, Corse v.' 233 Powlson V. Forwood . . . 610 Pue V. Dorsey 1-39 Rowlings V. Carroll V. Stewart Rebecca Owings' Case Reynolds, Deaver v. Rickott V. Higginson Ridgely v. Johnson V. Warjield Ringgold's Case Ringgold V. Jones Roloson, Wells v. . Rothwell V. Boushell Rymer v. Dulany . 7o 22 290 50 534 316 494 5 88 456 373 238 Sarah Wright" s Case Scott, Burch v. Seybrey, Cowell v- Shipley, Phillips v. Slye V. Llewellin . Snowden v. Snowden Spurrier v. Spurrier Stewart v. Bairy ■ , Rawlings v. Stone, Jenifer v. Story, McMechin v. Street, Ex parte Strike's Case . • Taylor v. Colegate V. Gordon V. Wood Tilton, Gibson v. . Thompson v. McKim Clapham Tong V. Oliver Tyson, Mayer v. Vanderheyden, Birchfield v. Waters, Duvall v. • Watkins v. Dorsett Estep V. . V. Watkins Warfield, Ridgely v. Wells V. Roloson Williamson v. Wilson Williams v. Hall • Willing V. Wright Wright's Case, Sarah Wright V. Wright . Wood, Taylor v. Worthington v. Bicknell CASES DECIDED IN THE HIGH COURT OF CHANCERY OF MARYLAND. RINGGOLD'S CASE. The right of appeal at common law and in equity; — in what cases it is allowed ; and how fer it may be controlled by the inferior court from whose decision the appeal is taken ; — in what cases, and to what amount an appeal bond may be required ; and how such bonds are examined, rejected, or approved. This suit was instituted here in January, 1811, by the plaintiffs, who were the cestui que trusts ^ under a deed of trust, against Samuel and Tench Ringgold, to obtain an account of the trust property, and the payment and delivery of the balance in their hands. And by a final decree of this court of the 30th of September, 1824, the defendants were ordered to pay to the plaintiffs, on or before the first of December then next, the sum oi ffty-three thousand eight hundred and fifty- seven dollars and seventy-nine cents, with interest on thirty- nine thousand four hundred and eighty dollars and forty-six cents, part thereof, from the first of July, 1823, until paid, and costs, (a) From this decree the defendants appealed ; and on the 20th of October, 1824, the plaintiffs, by their petition, stated, that the defendant Samuel had conveyed all, or nearly all, his property to trustees for the payment of his debts ; and they were apprehen- sive, that those trustees would be offered as sureties in the appeal bond. Upon which they prayed, that they might, on the filing of an appeal bond, be allowed to shew cause against the sufficiency of any sureties that might be offered, as the amount decreed to them was very considerable ; and they were willing, that the issuing of execution on the decree should be suspended until the matter could be heard. (a) Ringgold v. Ringgold, 1 H. & G. 32. 6 RINGGOLD'S CASE. On the 3d of November, 1824, an appeal bond, in the usual form, was filed, executed by the defendant, Samuel Ringgold, and by Samuel Ringgold, Junr., and Isaac Swearingen, as his sureties. On which bond tliere was a certificate, signed by William Price, a solicitor of this court, in these words : " I believe the above bond to be good for the penalty therein mentioned, 28th October, 1824." On the 8th of November, 1824, the plaintiffs, by their petition, objected, that the sureties in the appeal bond were wholly insuf- ficient; that Samuel Ringgold, Junr., had no independent means to justify his suretiship ; that Swearingen had but inconsiderable pro- perty, if any, in comparison with the vast amount for which he was offered as surety — his employment, for a long period, having been only that of an overseer, or manager, of the estate of the defendant Samuel ; that the defendant Samuel had, some time before, conveyed to those sureties all his estate for the payment of his debts then due ; and, that it was doubtful whether the property, so conveyed to them, could be deemed liable to the debt decreed to be paid to the plaintiffs. To this petition was annexed an affidavit of Mary Ring- gold, one of the plaintiffs, in which she stated, that those sureties were not sufficient; and, according to her information, they were far from having means to meet, or support their responsibility as such sureties. Upon which the petitioners prayed, that they might be allowed to shew cause, and to take testimony in relation to the sufficiency of the sureties offered. 9f/i November, 1824. — Bland, Chancellor, Ordered, that the matter of this Petition be heard during the second week of the ensuing December term : And, that proofs be taken, as to the sufficiency of the sureties offered, before any Justice of the Peace, by either party, on giving reasonable notice of the time and place of taking the same to the opposite party, or their solicitor. And it is further Ordered, that the issuing of execution on the final decree in this case be stayed until the hearing of the matter of this petition or further order. Under this order proofs were taken on the part of the defendant Samuel Ringgold, which, togetiier with the deed of trust firom him to Swearingen and Samuel Ringgold, Junr., and the inventory of the property conveyed by it, were returned and filed. ZOth December, 1824. — Bland, Chancellor. The amount decreed to be paid having given to this matter a more than usual degree of importance ; and the prayer of the petition calling for an expression RINGGOLD'S CASE. 7 of the Court's opinion as to the nature and extent of the citizen's right of appeal, I therefore deemed it proper to appoint a day for hearing, so as to allow an interval within which the parties might be permitted to take testimony in support of their allegations, and so as to give time to look into the practice of the Court in relation to appeals, for the purpose of having the subject carefully revievced and maturely considered. It has always been regarded here, as well as in England, as a constitutional right of every citizen to have his case reviewed, in one form or other, by a court of error. (6) Under the Provincial government, this right of the citizen to have a revision of a judg- ment, in any civil case, affecting his interests, was extended, in many instances, beyond the court of the last resort, in the Pro- vince, to the king in council, (c) In reference to which extended right of appeal, the Constitution of the Republic has emphatically declared, " that there be a Court of Appeals, composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive in all cases. "(c?) So as thereby, in the most distinct and positive terms, to exclude and prevent the further prosecution of appellate proceedings, in any case, from that ultimate tiibunal of the Republic, as had been before allowed under the government of the Province, (e) This right of appeal seems to have been conceded to the citizen by the common law, in all civil cases, without check, or control of any kind whatever. (/) A writ of error was granted, on demand, as a matter of right ;(o) and, if the appellant was at all appre- hensive, that proceedings, in execution of the judgment which had been so taken, up by the writ of error, would not be stayed, he might, as of course, sue out a writ of supersedeas for the purpose of having all such proceedings suspended until a decision was had upon the writ of error, {h) The form of the writ of supersedeas, which followed, as the adjunct and auxiliary of the wlit of error was thus, "that if the judgment be not executed before the super- sedeas, the Sheriff is to stay from executing any process of execution until the writ of error is determined." {i) Hence it was, and not from the quaint notion, that an execution being an entire thino- which, when once begun, must be completed, that, if the Jieri (b) Christie i'. Richardson, .3 T. R. 78.— (c) 1773, ch. 7, s. 5.—(d) Const, art. 56. (e) Hammond t-. Ridgely, 5 H. & J. 268.— (/) Tidd, Pra. 1074.— (cr) D. Regina v. Pat>-, 2 Salk. 504.— (/() Jac. L.Dic. vide Supersedeas.— {i) Meriton v. Stevens, Willis, 2S1. 8 RINGGOLD'S CASE. facias had been levied, the Sheriff was bound to sell the goods and bring the money into court to abide the event of the writ of error. And this becomes the more evident on adverting to the fact, that, in many other cases, where no such special directions were given to the Sheriff, the proceedings, in execution of the judgment, were intercepted and cut short at the very point at which the writ of error or supersedeas might happen to find thtm. [j) But it has been long established, that the writ of error, with an approved bond to prose- cute it with effect, of itself, operates as a stay of further proceedings to the same extent, that might have been specially directed by a writ of supersedeas ; which writ, owing to that, although formerly always sued out in this State, [k) has long since become obsolete, and is now never resorted to as a mere auxiliaiy to a writ of error in any case whatever. {I) But, although the right to appeal, in civil cases at common law, was thus, for a long time, admitted to be absolute and beyond control ; yet it was limited in its range to such facts as would have manifestly required a different course of proceeding and judg- ment, had they been made known to the Court; and to such errors in law as appeared upon the face of the record itself. And these errors in law, according to the common law mode of proceeding, could rarely be any thing more than such points of law as arose out of the allegations of the parties, in which no part of the evidence, which might have been offered in support of them, could appear ; although, as to such evidence, and in their direction to the jury, the Court might have fallen into many and great errors. Hence it was, that the parties were, by statute, allowed to have any such matter inserted in the record, in the form of a bill of exceptions, so as to have the decision, in relation to it, revised and corrected, if erroneous, in a court of error, [m) But, whether the errors complained of were in fact, or in law ; or whether they arose in an interlocutory pro- ceeding, or in the last act of the Court, the party was not allowed to intercept the case in its progress, or to exercise his right of appeal, until the court of original jurisdiction had pronounced its final judgment; as in partition or account there could be no writ ij) Jac. L. Die. vuk Supersedeas.— (k) Land. H. A. 1 16. Chan. Pro. lib. C. D. 368. A fee was formerly allowed to the Chancellor, which was afterwards directed to be paid into the treasuiy, for putting tlie great seal to a writ of error, and also a distinct fee for putting the great seal "to a supersedeas thereupon"— 1763, ch. 18, s. 88; Oct. 1777, ch. 13; November, 1779, ch. 25, s. 22.— (/) 2 Bac Abr 477.— (m) Tidd, Pra. 787 ; 1 Hal. Const. H. Eng. 9, note. RINGGOLD'S CASE. 9 of error allowed, but upon the final judgment ;(«) nor could any writ of error be brought to reverse even what might be called a final judo-ment upon any matter which rested in the mere discretion of the Court, (o) as for its refusal to continue a case;(/;) or to grant a new trial ;(r) or to reinstate a case after a nonsuit or dismissal ;(s) or to allow a plea to be amended, or a new one to be filed ;(^) or the allowance of a commission between the discretionary limits of five and ten per cent, as prescribed by the acts of assembly, (w) And as a party cannot, with reason, complain of the error of a judgment which he had, by his negligence, suffered to go against himself, or which he had expressly consented should be passed, he is not allowed to have a writ of error upon a judgment by default against him;(w) nor where the proceeding or judgment was had by consent, or it had been agreed, that no wTit of error should be brought, (x) These general limitations as to the range of the right of appeal, it is evident, are all of them well calculated to keep its exercise in order, and so far to prevent it from being abused. But it having been found, that this absolute right of appeal, even in cases in w^hich it w^as clearly allowable, had been often abused, by being perverted to the mere purposes of delay, and by being made the means of putting the plaintifFs claim again at hazard, after it had been at great trouble and expense sufficiently authenticated in a court of original jurisdiction, it appears, that a long series of efforts have been made to prevent or correct the evil wdthout materially impairing the benefit of the right of appeal itself. So far back as the year 1485, the Court of King's Bench, laid it down as a rule of that court, that no writ of error in parliament should be allowed until some error was shown to it in the record, lest it should be brought on purpose to delay execution, (y) And in the next year, it was provided by the statute, that the party should recover his costs, and damages for his delay, and wrongful vexation in the same by the discretion of the court before whom (n) 2 Bac. Abr. 454; Samuel v. Juden, 6 East, 333.— (o) Davis v. The State, 3 H. & J. 154 ; Gover v. Cooley, 1 H. & G. 7 ; Liter v. Green, 2 Wheat. 306 ; Parsons v. Bedford, 3 Peters, 445 ; Boyle r. Zacharia, 6 Peters, 648.— (ja) Wood V. Younj, 4 Cran. 237.— (r) Henderson v. Moore, 5 Cran. 11 ; ]\Iaiine In. Co. V. Young, 5 Cran. 187.— (s) United States v. Evans, 5 Cran. 280 ; Welch v. Man- deville, 7 Cran. 152.— (/) Marine In. Co. r. Hodgson, 6 Cran. 206.— (u) 1798, ch. 101, subch. 10, s. 2 ; Nicholls v. Hodge.s, 1 Peters, 562 ; 1828, ch. 26, s. 5.— (w) Hawkins v. Jackson, 6 H. &. J. 151, note.— (.r) Dormer's Case, 5 Co. 40 ; Clare v. Linch, T. Raym. 372 ; Wright i-. Nutt, 1 T. R. 3S8 ; Camden v. Edie, 1 H. Blac. 21.— iy) Tidd, Pra. 1074. 2 10 RINGGOLD'S CASE. the writ of error was sued.(c) In the year 1581, it was made a rule of the Court of Common Pleas, that no supersedeas should be made upon any writ of error to reverse a judgment of that court until some manifest or pregnant error therein should be notified by the party, or his counsel, to the court or one of its judges. (a) In the year 1605, it was further provided, by statute, that in certain enumerated cases, no execution should be stayed upon any judg- ment unless the person, in whose name the writ of error was brought, should, with two sureties, acknowledge himself bound in a recognizance in double the sum recovered, to prosecute his writ of en"or with effect,(6) and by another statute, passed in the year 1661, the provisions of the previous law were extended to other cases, and it was declared, that, in case the judgment should be affirmed, the defendant in error should have awarded to him double costs for the delay of execution, (c) Soon after which, in the year 1664, the provisions of these statutes were further extended to almost all other cases, including by name, dower and eject- ment ; and it was declared, that, in case the judgment should be affirmed, the defendant should recover such costs, damages, and sums of money as should be awarded to him ; and further, that the court wherein the execution ought to be granted, upon such affir- mation, should issue a writ of inquiry, as well of the mesne profits as of damages by any waste committed after the first judgment in dower or ejectment ; and thereupon judgment should be given and execution awarded for the amount thereof. (rf) In addition to these statutory provisions upon this subject, the common law courts of Westminster Hall have undertaken, by the exercise of a sound discretion, to prevent the abuse of this right of appeal by refusing to stay execution where it can be shewn, that the writ of error had, in truth, been brought for the express purpose of vexation and delay. (e) The abuse of this right of appeal still, however, continues to be so great an evil in England, that it has been recommended as proper to oblige the defendant to bring the whole debt and costs recovered into court, as the only effectual means of preventing the practice, which too often prevails, of bringing writs of error for the mere purpose of delay,(y) (z) 3 Hen. 7, c. 10 ; Tidd, Pra. 1131 ; ICilt. Rep. 22S ; Shepherd v. Mackreth, 2 K. Blac. 2S4.— (a) Tidd, Pra. 1074.— (i) 3 Jac. 1, c. S; Tidd, Pra. 1075.— (c) 13 Car. 2, Stat. 2, c. 2, s. 10 ; Shepherd v. Mackreth, 2 H. Blac. 2S6, 3 Blac. Com. 410.— (rf) 16 &, 17 Car. 2, c. S. ; Tidd, Pra. lOSl.— (e) Ent^vistle v. Shepherd, 2 T. R. 78 ; Christie v. Richardson, 3 T. R. 7S ; Pool v. Charnock, 3 T. R. 79 ; Keinpland v. Macauley, 4 T. R. 436.— (/) Tidd, Pra. 1075, note. RINGGOLD'S CASE. n When the appellant puts in bail in error, or gives security as required, notice thereof should be given to the opposite party ; and, if he does not except, the bail is allowed ; but, if he does except, then better bail must be justified in a manner similar to that of jus- tifying special bail in an original action ; and if the defendant fails to put in sufficient bail in error, the plaintiflf may take out exe- cution. (^) In all the States of our Union, it is believed that some statutes have been passed to prevent the abuse of this right of appeal. In Virginia, with a view to leave the right as open and as large as possible, and yet to prevent a party from resorting to it w4th any hope of great delay ; it was made the duty of the judges of the Court of Appeals to sit at least two hundred and fifty days, unless they should sooner despatch the business of the court. (^) And a statute of North Carolina has gone so far as to declare, that the party appealing shall give bond with surety to prosecute his appeal \vith effect ; which bond shall be sent up as a part of the record ; and, upon the judgment being affirmed, the appellate court may enter up judgment instanter^ as well against the sureties as the principal in such bond for the amount recovered in the court below, with costs and twelve per cent, interest, (i) In ^Maryland, the regulation of this right of appeal, with a view to prevent its abusive exercise, seems to have been the subject of early and repeated legislation, (J) prior to the passing of the existing law upon the subject, (/c) by which all those English sta- tutes in relation to the same matter, which had been adopted, (/) were virtually repealed so far as its provisions were, in any respect, incompatible w4th them. It would seem, that the English statute, which gave double costs on an affirmance of a judgment on a writ of eiTor, had been adopted as a law of this State, although no instance may now be found in which such costs have been awarded ;(?n) and it is certain, that writs of enquiry, in actions of dower and ejectment, have been issued after an affirmance in error ; and that judgments have been entered on such inquisitions, although such writs of enquiry may have now fallen into disuse. (n) (?) Tidd, Pra. 10S7.— (^) 2 Mun. Rep. Intro. 17.— (?) Yarborough r. Giles, 1 Hayw. 4.5.3 ; Kinchin r. Brickell, 2 Hajav. 49.— (7) 1642, ch. 6 & 34 ; 1678, ch. 8 ; 1692, ch. 9 ; 1695, ch. 19 ; 1699, ch. 10 ; 1704, ch. S2, and 1712, ch. o.—{k) 171.3, ch. 4.— (l) Kilt. Rep. S3, 92; 223, 2.39.— (m) Gale v. The Proprietary, 1 H. Sc J. 34.3, note. Kilt. Rep. 92.— (n) Joan v. Shields, 3 11. Sc McII. 7 ; Gore r. Worthington, 3 H. & McH. 96 ; Kilt. Rep. 239. 12 RINGGOLD'S CASE. But in the practice under our acts of assembly, in relation to appeals, there is no evidence to be found of any course of pro- ceeding, analogous to that of the English courts, of justifying bail in error. It seems, that originally all decrees of the High Court of Chan- cery of England were final and conclusive. It not only appears, that no appeal from a decision of that court was allowed, prior to the year 1581 ; but, that the right of appeal, as then first introduced, remained entirely unsettled until about the year 1662, when the matter was taken up ; and, after having been much opposed, zeal- ously debated, and maturely considered, was finally settled and admitted to be as much a constitutional right to appeal from a decision of the Ilight Court of Chancery, as from a court of com- mon law.(o) But as, at common law, no writ of error will lie from a judgment by default or by consent ; so in equity the decree or order appealed from must have been adverse, and not made by the express or tacit consent of the appellant : as w^hen a party thinks proper not merely to decline opposition to measures which the court would enforce ;(p) but, by himself or his counsel, consents to a decree or order, there lies no appeal from it, even although he gave no such authority to his solicitor ; his remedy being against his counsel ;(§') nor can any appeal be made generally available from a decree by default,(?-) or, as it would seem, from a decree taking the bill pro confesso.{s) The general rule of the common law, which postpones the exer- cise of the right of appeal until after the final judgment of the original court, is founded in sound sense ; and, as is evident, should be as closely followed as practicable in allowing appeals from the Court of Chancery. Therefore, it has been held, that no appeal can be allowed in equity, but from a final decree ; or from an order grounded on some disputed facts disclosed in the bill and answer involving the merits of the controversy; and which order, if executed, would subject the party to some irreparable (o) Gilb. For. Rom. 190 ; ] Harr. Pra. Chan. 676 ; 2 Mad. Cha. 573 ; 2 Lond. Jurist. 107.— (p) Wood V. Griffith, 19 Ves. 550, 1 Meriv. 35.— (g) Downing r. Cage, 1 Eq. Ca. Abr. 165 ; Buck v. Fawcett, 3 P. Will. 242 ; Harrison v. Rumsey, 2 Ves. 488. Bradish v. Gee, Amb. 229 ; Beresford v. Adair, 2 Cox. 156.— (r) Cunyingham v. Cunyingham, Amb. 89 ; Stubbs v. , 10 Ves. 30 ; Charman v. Charman, 16 Ves. 115.— (s) Davis v. Davis, 2 Atk. 24 ; Maynard v. Pomfiet, 3 Atk. 468 ; Carew v. Johnson, 2 Scho. &, Lefr. 300 ; Jopling v. Stuart, 4 Ves. 619 ; Geary v. Sheridan, 8 Ves. 192 ; Ogilvie v. Heme, 13 Ves. 563 ; Heyn v. Heyn, Jac. Rep. 49. RINGGOLD'S CASE. 13 grievance ;(f ) or from an order involving the merits, and which order could not be followed out without, in effect, depriving the party of the benefit of an appeal, or rendering any appeal thereafter, for correcting the error of such order, entirely nugatory ;(w) yet it is perfectly mani- fest, from the very nature of the jurisdiction of the Court of Chan- cery, that the exercise of its various and flexible powers, which have been expressly so contrived as to afford relief in peculiar cases, and under emergencies which admit of no delay, where no just estimate, in anticipation, can be made of the periled rights of the party, so as to have a satisfaction secured to him, by bond with surety, in the event of a loss ; or where no adequate relief can be obtained otherwise than by a prompt exercise of the conservative powers of the court, an order may be called for, in the outset, or in the progress of a suit, the execution of which, if suspended on giving bond or otherwise, would be, in effect, to declare, that the court should exercise no such power. And, besides, if the progress of a suit in chancery might be delayed, by an appeal from any of the various interlocutory orders which the circumstances of the case might require, the suit itself, by such interruptions, by abate- ments, by loss of testimony, or other accidents, might never be brought to a final hearing ; or the final decision might not be until afler the subject in controversy itself had perished, or been entirely wasted. Hence it is obvious, that there are many orders in chancery from which no appeal ever has been, or ought to be allow^ed. Such as an order to shew cause why any particular thing should not be done ; or v an order for an attachment to bring a party before the court ; or an ex parte order refusing an injunction ; or an order granting an injunc- tion until the coming in of the answer ; or then, on motion, dissolving it;(w) or continuing it until the final hearing, or further order; or, where property was likely to be lost, or materially injured, an order appointing a receiver to take care of it for the benefit of all con- cerned •,{x) or an order upon a defendant to bring a sum of money into court, which he had admitted, in his answer, did not belong to him, for the purpose of having it invested so as to be made productive pending the litigation ;(y) or a mere discretionar}"^ decree or order, as (J.) Blount's Case, 1 Atk. 295 ; Head v. Harris, 2 Scho. & Lefr. 563 ; Roche v. Mor- gell, 2 Scho. k Lefr. 724 ; Buel v. Street, 9 John. Rep. 447 ; Snowden v. Dorsey, 6 H. & J. 114.— (?0 AValdo V. Caley, 16 Ves. 214; Wood v. Milner, 1 Jac. & Wal. 616. {w) Since altered by 1S.32, ch. 197.— (x) Altered by 1830, ch. 185, s. 1.— (y) Altered "by 1830, ch. 183, s. 1 ; Thompson v. McICim, 6 H. & J. 327, contra. 14 RINGGOLD'S CASE. for costs ; and the like. To allow a party, on giving bond, or upon any other condition, to appeal from such orders as these, so as thereby to suspend their execution, would be a scandalous abuse of the right of appeal ;(z) it would be to palsy the arm of justice ;(a) and to make a chancery suit the greatest judicial nuisance that could well be imagined ;(6) or, as has been justly observed, by sustaining appeals to such an extent, the court of the last resort would draw into it the whole business of the Court of Chancery, before it had become ripe for discussion and decision there ; and not only render the voice of that court mute, and its process nugatory, but it would destroy the appellate court itself, by rendering it wholly incompetent to despatch the immensity of business which would be drawn into it.(c) But as the record of a chancery suit contains all the proofs, as well as all the allegations at large, of the litigants, with a recital, previous to the exhibits read, of the substance and scope of the pleadings, tending to the points in controversy upon which the decree is made, drawn up, as di-rected by the rule and practice, in the most concise manner, by the register, under the inspection of the solicitors of the parties, of what was alleged, relied on and proved at the hearing, as being parcel of, and as shewing the foun- dation upon which the court had rested its final decree ; the whole of which, by an appeal, is removed to the court above ;(rf) there- fore, in order to prevent the appellant from making a fraudulent, or abusive use of his right of appeal, by laying back, at the final hearing in chancery, for the purpose of taking his opponent by surprise in the appellate court, by insisting on testimony not pre- viously relied upon; or by taking exceptions, or inaking 'points not taken or made in the court below, it has been laid down, in general, that no evidence can be read and relied on in the appellate court, which was not read and relied on in the court of chancery ;(e) that no exceptions can be taken, or point made, by way of appeal, which had not been taken or made in the court below ;(/) that (r) Way v. Foy, IS Ves. 453.— (a) Huguenin v. Baseley, 15 Ves. 183.— (6) The Warden of St. Paul's v. Morris, 9 Ves. 31S.— (c) Buel v. Street, 9 John. Rep. 448; 2 Mun. Rep. Intro. Judge Tucker's letter, 17 ; Debates Virg. Conv. of 1829, page 760 ; TheWardenof St. Paul's V. Moms, 9 Ves. 316; Covvpert). Scott, 1 Eden, 17; Wirdman V. Kent, 1 Brow. C. C. 140 ; Jenour v. Jenour, 10 Ves. .'572.— (rf) Gilb. For. Rom. 162, 184, 190 ; Pra. Reg. 127 ; 1 Harr. Pra. Chan. 77, 620 ; 2 Harr. Pra. Chan. 664 ; Wliite V. White, 4 Ves. 35 ; 2 Fow. Exch. Pra. 164 ; Broad v. Broad, 2 Cha. Ca. 161 ; Gifford V. Hart, 1 Scho. & Lefr. 396 ; Carewi-. Johnston, 2 Scho.&Lefr. 308; (e) Cunyngham V. Cunyngham, Amb. 90 ; Button i>. Price, Pre. Cha. 212 ; Keen i'. Stuckely, Gilb. Rep. 155; Wood r. Griffith, 19 Ves. 550.— (/) Chamley v. Dunsany, 2 Scho. & Lefr. 712. RINGGOLD'S CASE. 15 no new matter, not in issue in the court below, can be insisted on in the court above ;(^) and that no account which was not asked for at the hearing below, can be made the ground of appeal. (/i) Whence it appears, although in equity as well as at common law, the parties, after framing their allegations to suit the peculiar nature of their case, are allowed sufficient time and means to bring in all their proofs ; and are then permitted to take any exceptions, and to make any points they may think proper, that yet they are not suffered, by an appeal, to cast their case into a new shape ; or to give it a new, or different aspect in any respect whatever ; since the sole object of an appeal, in all cases, whether at law, or in equity, is not to allow the appellant to present a different, or a better case ; but merely to enable the appellate court to correct such errors as it may appear the inferior court had fallen into, upon a review of the identical case upon w^hich the court below had decided, and nothing more. No statutory provisions have been made in England for the purpose of regulating the right of appeal from the Court of Chanceiy, or for preventing its abuse ; and therefore the matter has been hitherto entirely governed by such rules as have been laid down by the original and appellate tribunals themselves, upon due considera- tion of the peculiar nature of the subject. (i) It is admitted, that very grave reasons should be required to induce the court to refuse the benefit of appeal ;(j) and that any interference with the right of appeal is a delicate subject, to be applied with jealousy. (/c) Nevertheless, as it w^ould be attended with consequences most oppressive, to suitors in equity, if an appeal were allowed, of itself, to operate as a stay of proceedings, it has long been the established practice of the Court of Chancery to consider an appeal as, in no case, having the effect of suspending its proceedings, unless an order for that purpose is made by the court itself; or unless, in special cases, the appellate court should interpose by a special order.(/) And, even if the decree were absolute and fmal, yet, if it were of such a nature, that the consequence of suspending its execution would, in effect, be, if the party in whose favour it had been made should die before the appeal could be heard, a reversal of the decree without any judgment of the court, the proceedings would not be stayed. (m) The Court of Chancery appears to have (g) Thompson v. Waller, Pre. Chan. 29-5. — (h) Chamley v. Dunsany, 2 Scho. & Lefr. 712.— (r) 2 Fow. Exch. Pra. 202.— (7) Wood v. Griffith, 19 Ves. 551.— (A-) Way V. Foy, 18 Ves. 454.— (0 Waldo v. Caley, 16 Ves. 213.— (ni) Waldo r. Caley, 16 Ves. 214 ; Wood v. Milner, 1 Jac. & Wal. 616. 16 RINGGOLD'S CASE. been governed, in this respect, by a sound discretion upon a consideration of the peculiar nature of each case ; so that, in fact, the hearing of a petition, to stay its own proceedings, pending an appeal, is, in some sort, a summary rehearing of the case itself (w) Upon all such occasions, however, the court gives a certain degree of credit to its own decree, supposing it to be right, unless strong ground is shewn for a contrary conclusion, more than the mere dissatisfaction of the party appealing. And, in order to induce the court to regard the case as reasonably doubtful, at least two counsel, who the court will not presume to act so unworthily as to state what they do not know and believe, must certify, that, in their opinion, there is just cause for appealing. (o) It must appear, that the application for an appeal has not been unreasonably delayed ;(p) and, although an appeal may be taken from a decree to account, yet the court will proceed to have the account taken pending the appeal.(5') In granting a stay of its proceedings, the Court of Chancery, generally, imposes such terms, by ordering the sum decreed to be paid into court, and so invested as to be productive pending the appeal, or by appointing a receiver, or by requiring such security, as will afford to the party in whose favour the decree has been made a reasonable assurance, that there shall be no unjust delay in prosecuting the appeal, or any material loss, or irreparable injury sustained by a suspension of the proceedings. (r) In England, the rules prescribing the extent of the right of appeal from the inferior Courts of Admiralty, and the regulations by which its exercise is prevented from being abused, are nearly similar to those by which the right of appeal is limited, and its exercise restrained from decrees of the High Court of Chanceiy.(s) Here, however, in the federal courts, no appeal is allowed in any case of admiralty and maritime jurisdiction, but from the final decree, or sentence of the court ;(^) and, if such, final decree be not appealed from, no appeal lies from any subsequent proceeding upon the summary judgment rendered on a bond for the appraised value, or upon an admiralty stipulation taken in the case to enforce the decree; {11) Willan V. Willan, 16 Ves. 217 ; Monkhouso v. The Corporation of Bedford, 17 Ves. 380 ; Wood v. Griffith, 19 Ves. 551.— (o) Huguenin v. Basely, 15 Ves. 183. (jp) Savage v. Foster, 9 Mod. 33 ; Gwynu v. Lethbridge, 14 Ves. 585. — {q) Popham r. Bampfield, 1 Vern. 344 ; Nerot v. Burnard, 2 Russ. 56. — (r) Willan v. Willan, 16 Ves. 216 ; Monkhouse v. The Corp. of Bedford, 17 Ves. 380 ; Way v. Foy, 18 Ves. 452; Huguenin v. Basely, 15 Ves. 180.— (s) Clarke's Praxis, tit. 54& 55.— (<) Act. Cong. 24th Sept. 1789, ch. 20, s. 21 8t 22. RINGGOLD'S CASE. 17 the proceedings in such cases, and the awarding of execution being considered incidents exchisively belonging to the court in possession of the principal case.(«) So too in the federal courts there can be no appeal in a chancery suit, but from the Jinal decree. (i^) A decree for the sale of mortgaged properly has been deemed a final decree within the meaning of the act of Congress li^x) but it has been held, that an order overruling a plea of the statute of limitations, and directing the defendant to answer ;(^) or an order dissolving or refus- ing to dissolve an injunction, is not a decree from wdiich an appeal will lie.(-) It is believed, that in all the States of our Union, in which distinct Courts of Chancery exist, or in which any of their inferior and original tribunals have been invested with the powers of a Court of Chancery, the range of the right of appeal has been more or less limited ; and that some regulations have been adopted with a view to prevent the abuse of its exercise. (a) In North Carolina all original jurisdiction in equity, beyond a small amount, was given exclusively to the Superior Courts of Law and Equity, which were, at one time, courts of last resort, and, of course, there could be no appeal in equity from any of their decisions. (6) In Maryland, although it appears, that the Court of Chancery was one of the earliest of the judicial establishments of the Province, yet there is nothing which shews, that an appeal was ever allowed from any of its decrees, until it was expressly provided for by the legislature. The act for regulating writs of error and granting appeals from and to the courts of common law;(c) is, as its title indicates, like all the previous acts upon the same subject, expressly confined, in all its provisions, to cases at common law; and has been followed out by a practice, in some particulars, different from that of the English courts in like cases, (c^) The existing act of assembly, which allows of appeals from Chancery, seems to have been a re-enactment of a law which had been passed a few years before ;(e) it enacts, that it shall be lawful for any person who conceives himself " aggrieved by any decree of the Chancery Court, to have an appeal to the governor and council," the then court of appeals.(/) It is not said, that the right of appeal shall be s. zz (u) The HoUen & Cargo, 1 Mason, 4.31.— (u') Act Cong. 24th Sept. 1789, ch. 20, 22.— (j:) Ray r. Law, 3 Cian. 179.— (i/) Rutherford v. Fisher, 4 Dal. 22.— (z) Young V. Grundy, 6 Cran. 51; Gibbons v. Ogdcu, 6 Wlicat. 448.— (a) 7 John. Cha. cZ Gen. Index, 22; Hening & Munfbrd's'llep. ; 4 Dosau. Rep.— (6) Haywood's Rep. (c) 171.3, ch. 4.— (d) The State r. Buchanan, 5 II. ilv J. 331.— (<) 17is' ch 10 • 17'>0 ch. 20.— (/) 1721, ch. 14, s. 3. ' "' 3 18 RINGGOLD'S CASE. extended to any order, decision, or decretal order, but simply to "any decree of the Chancery Court;" whence, it would seem, that the right of appeal might have been, and, there is some reason to believe, actually was construed, under that law, to extend only to final decrees. (o) But it is well known, that the Court of Chancery of JNIaiyland had, from the very outset, and always, governed itself according to the principles and rules of its prototype, the Court of Chanceiy of England ;(/i) and that the right of appeal was not confined to mere final decrees, seems to have been admitted and affirmed by one of the most important and best considered acts of assembly, in relation to matters of equity; in which it is said, {g) Slye v. Llewellin, May, 1721. — On motion of Mr. Daniel Dulaney, of counsel for the defendant, it is ordered, that the Injunction in this cause be dissolved ; and that there go an order to the Sheriff to repossess Mr. Richard Llewellin, the defendant, with the lands in the bill mentioned, pursuant to a former order of this Court, made May, 1719 ; and that the bill be retained ; and ordered hearing next court. Whereupon Mr. William Cuming, of counsel for the complainant, moves for an appeal from this order to the High Court of Appeals, the Injunction being dissolved, and a writ of possession ordered. Which appeal is denied by his Honor the ChanceUor, the cause being not yet determined. — Chan. Proc. lib. P. L. 595. (A) Co WELL iJ. Seybrey. — Mr. Moorecroft, attorney for the plaintiff, moves against the defendant for a commitment against him to the Sheriff of Saint Mary's county, until he do pay his contempt, and put in a perfect answer to the complainant's bill, tliere being an attachment issued against him for want of an appearance. Mr. Rozier, attorney for the defendant, puts in a demurrer to the plaintif}"'s bill. Mr. Moorecroft prays the judgment of the Court upon the said demurrer ; and further moved, that the defendant was summoned to answer, and ought not to put in a demurrer. 2d June, 1669, Calvert, Chancellor. — The defendant, upon serving of a. subpoena to appear and answer, may put in a plea, answer, or demurrer ; and the same shdl stand good as if he had put in an answer, according to the practice of the Chancery Court in England, the rules of which court, as to that particular, were read. Whereupon it is ordered, that the said demurrer be set down to be argued upon Friday next, of which all parties concerned are hereby to take notice In this cause, the Court caused the late Sheriff of Talbot county, to whom it was alleged the said attachment was directed, to return his writ ; he doth not appear, nor had he returned that writ to the new Sheriff, being present in court. It was thereupon ordered, that the respective Sheriffs of the respective counties within this Province, do, by themselves, or their deputies, or attorneys, attend every court held here at Saint Mary's, for the Chancery and Provincial Courts, to answer to the said Courts for the return of writs to them directed, as they will answer tlie contrary to the said Courts at their perils. — (1785, ch. 72, s. 23.) Ordered likewise, that the said defendant Seybrey do pay unto the plaintiff, or his attorney, twelve shillings and sixpence for his costs upon the contempt of setting an attachment ; that he be committed to the custody of the Sheriff of Saint Mary's till he pay the same. The defendant said he had no money ; but Mr. Rozier, his attorney, engaging, in open court, to pay the same, the said commitment is discharged. — Chan. Proc. lib. C. D. 5 ; 5 Franldin's Works, 355 ; Digges' Lessee v. Bealc, 1 H. & McH. 71. RINGGOLD'S CASE. 19 *'that all appeals from the decisions, orders, and decrees of the Chancery Court, in cases where appeals properly lie," shall be made within nine months, &c. ;(t) which declaration, it was after- wards enacted, should " be confined to decretal orders. "(y) Whence it may be fairly inferred, that allhouo;h the range of the right of appeal might have been, under the previous laws, construed to be, at least, coextensive wdth the right of appeal from the Court of Chancery of England, yet by this last law it was intended to reduce it within much narrower limits, by declaring, that it should "be confined to decretal orders." Consequently, although it may be questionable, in many cases, whether an appeal, which would be allowed in England, should be granted here, yet it would seem to be perfectly clear, that where an appeal will not lie from the English Court of Chancer^', it cannot now be granted from this court. (^') Hence, as it is settled in England, that there can, in general, be no effectual appeal from a decree by default ; or from a decree, to the passing of which the party has assented; or which, by his negligence or omission, he has permitted to go against him, it would seem necessarily to follow, that no appeal ought to be allowed to a party against whom any such decree had been passed by this court, either in the ordinary course, or according to the special provisions of the act of assembly, which authorizes the court to proceed ex parte ;{l) or under any of the acts which authorize the court to take the bill, pro confcsso, as against an absent, or a contumacious resident defendant ; since the right of appeal has been reserved to such a party by no act of assembly, in any case whatever; and if he w^ere, notwithstanding, to be suffered to appeal, such a decree would be thereby rendered, in a great measure, utterly futile ; and he might thus be enabled to turn his own negligence to his particular benefit, by taking advan- tage of errors and omissions in the proceedings, which must have been waived, or might have been cured, or provided for, had he appeared and answered. But this is a matter which yet remains to be carefully considered and finally determined by the proper tribunal. The act for regulating the granting of appeals from and to the courts of common law, declares, that the method and rule of the prosecution of appeals shall be in the manner and form as therein expressed, that is to say, the party appealing shall procure a tran- (0 1783, ch. 72, s. 27.— (;•) 181S, ch. 193, 6. 1.— (A-) But see 1830, ch. 185, and 1832, ch. 197.— (0 1820, ch. 161, s. 1. 20 RINGGOLD'S CASE. script of the full proceedings of the court whence such appeal shall be made under the hand of the clerk of the said court and seal thereof, and shall cause the same to be transmitted to the court before whom such appeal is to be heard ; and also in the same court file, in writing, according to the rule of the same court, such causes, or reasons, as he had for making the appeal ; upon which transcript the Court, to whom the appeal shall be made, shall proceed to give judgment. (?rt) After which the legislature further declared, "that appeals from the Court of Chancery to the Court of Appeals, shall be subject to the same regulation and limitation, as to the prose- cution of them, as appeals from the courts of common law are.(n) But there is no act of assembly which directs, that the execution of a decree in chancery shall, in any case, be stayed on the appel- lant's giving bond, with sureties, for the prosecution of his appeal, or which, in any manner whatever, prescribes the terms upon which any appeal may be granted ; or the conditions upon wliich the execution of any decree of the Court of Chancery shall be delayed until the appeal can be heard and determined. As to all such matters, therefore, this Court has always been, as it now is, governed by the analogous practice of our own courts, so far as it can be so considered, and by the rules and practice of the English Court of Chancery in like cases. (o) There are some cases to be found among the proceedings of the Chancery Court, during the provincial government, in which it appears, that, here as in England, the decree has been introduced by a brief recital of the allegations and proofs in the case ; but there are few instances of the kind to be met with since the revo- lution, (p) Nothing, however, has been more common than for the Chancellor himself to state the case and to give his opinion, in writing, upon it as introductory to his decree. But neither of these modes of proceeding can be, or indeed ever have been regarded by the appellate court as sufficiently showing what were the excep- tions and points in controversy before the court below. In the recital of the allegations and proofs it could not but often happen, that much was stated which had not been at all controverted ; and as the recital was made under the sanction of the Chancellor it {m) 1713, ch. 4, s. 4.— (?;) 1729, ch. 3, s. 3.— (o) But see the act passed since 1826, ch. 200.— (p) The Proprietoiy v. Jenings, 1 H. & McH. 140; Sparrow r. Gassavvay, 1733; Chan. Proc. lib. J. R.; No. 2, p. 405; O'Brien v. Connor, 2 Ball 6 Bea. 146; Gregory v. Molcsworth, 3 Atk. 627; Ex parte The Earl of Ikhester, 7 Ves. 373. RINGGOLD'S CASE. 21 followed, on the other hand, that much matter might have been put aside, or omitted, which one or other of the parties had deemed of great importance, and upon which he had earnestly relied, (p) The opinion of the Chancellor, it is also evident, should still less be relied on as to what were tlie points made before him ; because, like all other judges, he expresses an opinion on such points only in the case as appears to him to be decisive ; and passes over all others unnoticed ; or, indeed, as sometimes, though rarely happens, he takes a view of the case which renders it wholly unnecessary to pay the least attention to any one of the points that have been made by either of the parties to the controversy. (9) Yet it is all important to the due administration of justice, in all cases, that " the full proceedings of the court," appealed from, with an exact exhibition of tlie exceptions and points there taken and made, and nothing more, should be as amply and correctly spread out and presented before the revising and appellate court as they were before the court below. For it is perfectly manifest, that, as on the one hand, the case should not be taken in frag- ments, upon successive appeals, or with any additions ;(r) so, on the other, the parties should not be permitted to deviate from or enlarge the ground occupied by them, in the court below, by tak- ing any other exceptions, or making any new points. Because, in passing upon any such new matter the Court of Appeals cannot act, according to the terms of its constitution, merely as a tribunal for the revision and correction of errors ; but must necessarily step beyond its legitimate orbit, and take upon itself the power of a court of original jurisdiction. (5) And by thus suffering itself, in any respect, to put forth a power, beyond its appropriate sphere, it must inevitably draw to itself much business not properly belong- ing to it ; and often take the parties by surprise with exceptions and points which had never before been thought of; or which had been, until then, purposely concealed, in order to defeat a party of his just right as authenticated by the judgment of the court below; where all such new objections might have been readily removed, had they been then made, and the parties apprised of them at the proper stage of the controversy. (^) (p) O'Brien v. Connor, 2 Ball & Bea. 154.— (9) KeUy v. Greenfield, 2 H. & McH. 141.— (r) 1S19, ch. 144, s. 4 ; Canter v. The American & Ocean Insur. Com., 3 Peters, 318.— (s) Chambers v. Wilkins, 2 Litt. Rep. 146 ; Huling v. Fort, 2 Litt. Rep. 194. (t) Carroll v. Norwood, 4 H. & McH. 290 ; Mahoney v. Ashton, 4 H &. McII. 323 ; Beekman v. Frost, IS John. 55S. 22 RINGGOLD'S CASE. There is, however, nothing to be met with in the proceedings of this court going to show, that the Court of Appeals has, at any time, in chancery cases, rigidly confined itself to the exceptions and points made in the court below ; and, perhaps, that court might find it difficult to do so, unless some written evidence of the exceptions taken and points made, in this court, were placed upon the record. — And therefore it might be well to have it enacted, by the legislature, as a general rule, in all cases of appeal from the Court of Chancery, that a party should not be allowed to take any exception, or make any point in the Court of Appeals, which he had not taken or made in writing and filed, before the hearing, in the Court of Chancery. (i^) It appears, that this Court has always exercised a discretionary power over the right of appeal, analogous to that exercised by the courts of common law and of chancery of England, so far as to prevent its abuse, in being taken Mvolously, vexatiously, or for the mere purpose of delay, by refusing to grant an appeal from every order with which a party may be dissatisfied ; or by refusing to stay the execution of the order or decree, but upon certain terms, or until the party had given bond with sufficient sureties, as required by the act of assembly in cases at common law, to pro- secute his appeal with effeci;(w) and it must also appear, that the (m) Some partial provisions have been made in relation to this matter by the acts of 1S25, ch. 117, s. 2; and 1832, ch. 302, s. 5. (w) Rawlings v. Stewart. — This was a bill filed by a morto:agor ao-ainst a mortgagee to redeem ; and for an injunction to stay waste. The injunction was granted as prayed. Among the proofs is a deposition of a witness taken on the 10th of January, 1751, before the mayor of London under the act of 5 Geo. 2, c. 7. Upon all which the following decree was passed. " And the said cause standing in court ready for hearing, a day was by this court appointed for hearing thereof, on which day, being the first day of June in the year seventeen hundred and eighty, the said cause coming on accordingly to be debated before the Chancellor of Mar}"land, in the presence of counsel learned on both sides, the substance of the complainant's bill, the answer of the defendant, the proofs and exhibits in the cause appearing to be to the effect herein recited and set forth • whereupon, and upon debate of the matter and hearing what could be alle"-ed on both sides, the court doth think fit, and so order and decree ; and accordin"-lv it is this first day of June seventeen hundred and eighty, by the honorable Court of Chancery of Maryland, and the power and authority thereof, ordered, adjudged and decreed, that the said Jonathan Rawlings be let in to redeem the land and appurtenances so as aforesaid mortgaged by Aaron Rawlings to William Hunt, and by him conveyed and made over to the said George Stewart, as set forth in the bill of complaint a.'bresaid, he the said complainant paying and satisfying to the said George Stewart what shall appear to be really bona fide, and equitably due and owing for principal and interest upon the mortgage aforesaid. And that an account be taken of the principal and interest really, bona fide and equitably due and owing upon the said mortgage, dis- RINGGOLD'S CASE. 23 appeal has been taken from the order or decree within the time limited by the act of Assembly, (a:) Where the order or decree, appealed from, simply requires the payment of a sum of money, and nothing more, the rule has been, as at law, to require an appeal bond in double the sum so directed to be paid, and costs. (y) But on an appeal from a decree to fore- close a mortgage of land ; or for the sale of mortgaged land ; or for the conveyance of land in specific performance of a contract, and the like, it would be unnecessary and improper to require a bond in double the amount of the mortgage debt ; or in double the value of such an estate so bound ; which, although subject to much injuiy, is yet in substance imperishable and immoveable ; and therefore, in such cases, the practice has been to follow the course pursued at law, in the analogous cases of writs of error in dower and ejectment, and to require an appeal bond in such a sum as will cover the whole amount of the costs and of the mesne profits as well as damages by any waste committed pending the appeal, which the statute authorizes the party to have ascertained at law by a writ of inquirj-, and to recover, in case the appellant should fail to sustain his appeal. (::) But where the plaintiff in equity seeks a tinctly ascertainins; in the said account the credits, advancements, and disbursements of the said William Hunt made and given upon the security, and the payments, satis- factions, and remittances made in the lifetime of the said Aaron Rawlings, and since his decease, in discharge of the said mortgage. And the amount of the sales of the negroes, and other personal estate of the said Aaron Rawlings made after his death by the agent of the said William Hunt, and for his use ; also the annual value of the rents and profits of the said mortgaged lands during the time the said lands were in the possession of the said William Hunt, and the annual value of the rents and profits thereof from the time of the defendant's possession of the said lands to the time of taking the said account ; and of the repairs and lasting improvements made thereon by the said defendant ; and also the waste and destruction, and the value thereof committed by the said defendant on the said mortgaged lands during the term of his possession aforesaid. — J. Rogers, Chancellor." The defendant prayed an appeal firom this decree, which was granted accordingly ; and he filed an appeal bond in the penalty of fifty thousand pounds current money, with t\vo sureties. The bond recites, that it was given in conformity to the act of 1713, ch. 4. The Court of Appeals aflirmed the decree. The record then proceeds thus : "and at October court, 1785, the honorable the Judges of the High Court of Appeals returned to this court the transcript aforesaid with their proceedings on the same, to wit: and now here, &.c. to the end of the judgment of the Court of Appeals, &c. Chan. Proc. No. 2, fi-om 1734 to 1786, page 62, 113, and Slye v. Llewellen, ante IS, note. But this matter has been since otherwise finally settled, Thompson v. McKim, 6 H. & J. 330 ; 1830, ch. 185, s. 1. (X) 1785, ch. 72, s. 27; 1819, ch. 144, s. 4; 1826, ch. 200, s. 14.— (;/) Johnson v. Goldsborough, 1 H. & J. 499.— (z) Wharod i'. Smart, 3 Burr. 1823 ; Thomas v. Goodtille, 4 Burr. 2501. 24 RINGGOLD'S CASE. specific performance of a contract, or the benefit of the decree can only be had by the delivery, preservation, or sale of certain move- able and perishable property, then it is clear, that the penalty of the appeal bond should be for a sum at least double the value of such property as well as the costs, and any particular sum of money which such decree may also direct to be paid. There does not appear, however, to have been any rule laid down by which the value of such property is to be ascertained, for the purpose of fixing the penalty of the appeal bond. The extent of the original jurisdiction of the Federal Courts, as well as the extent of the right of appeal from them, has been limited by act of congress to cases where the matter in dispute exceeds the sum or value of a certain specified amount. (o) In regard to which it has been held, that where, from the nature of the action, as in detinue, replevin, ejectment, a writ of right, or admiralty proceeding in rem for a forfeiture, the property itself, and not a debt or damages, is the matter in dispute, the value may be ascertained by affidavits taken on reasonable notice to the adverse party, or his counsel ;(6) and this ii is evident, would be the proper course to pursue for the pur- pose of bringing before this Court the means of making a just estimate of the value of the property, in case its value should be disputed, in order to ascertain what should be the penalty of the appeal bond in appeals from ordei's or decrees in relation to subjects of this latter description. (c) In England, bail in error is given by a recognizance acknow- ledged in the court below ; and if the sufficiency of the bail is excepted to, the party is thus called on to justify, or put in better bail. According to the English course in Chancery, where a party is called upon to give an appeal bond, or to enter into a bond, or recognizance, for any other purpose, he is required to do so before a master, by whom the obligation must be authenticated, and the surety approved. In Maryland, the practice in Chancery is differ- ent, and although there are many cases, as well as those of appeals, in which a bond with approved surety is required to be given ; yet there is no instance in which a bond has been, like a recognizance, required to be acknowledged or executed before the Chancellor, or any officer of the court ; and I have met with but one instance in (a) Act Cons;. 24 Sept. 1789, ch. 20, s. 22.— (b) Williamson v. Kincaid, 4 Dal. 20 ; Coiirzo V. Stead, 4 Dal. 22 ; The United States i'. The Brig Union, 4 Cran. 216 ; Cooke t'. Woodrow, 5 Cran. 14 ; Rush v. Parker, 5 Cran. 287 ; Green v. Liter, 8 Cran. 229. (c) Some provision upon tliis subject has been since made by the act of 1S26, ch. 200. RINGGOLD'S CASE. 26 which any evidence of the authenticity or proof of the execution of such a bond has been produced to the Chancellor. (rf) Although in some cases certain office bonds have been required to be authen- ticated before some of the judges of the courts of common law ; and to be thereupon recorded, (e) But in all cases in Chancery the authenticity of the obligation has been assumed, or admitted, and the approval of the Chancellor, which is so often spoken of, is confined ; first^ to the conformity of the instrument to the requisi- tions of the law, or of the order or decree, in pursuance of which it had been given ; and in the next place, to the pecuniary suffici- ency of the obligors. It is necessary, that the penalty of the bond should be double the whole amount recovered, or ordered to be paid, and costs ; or in the amount specified by the Chancellor in those cases where it has been submitted to his discretion to fix the amount ; and also, that the condition should correctly set forth the judgment, decree, or order appealed from, or the object of the bond ; orthat duty, the faithful performance of which is intended to be secured by it. If the bond be not correct in these particu- lars, it cannot operate as a supersedeas, or so as to stay the execu- tion of the order or decree ; and therefore on the fact being shown to the Chancellor the party will be permitted to proceed to obtain the benefit of his order or decree. (y) The pecuniary sufficiency of the sureties oflfered is, however, in this respect, a matter of the first and greatest importance. For although the terms of the obligatory instrument may be, in every particular, exactly as required ; yet, if the sureties be insufficient, or insolvent ; or become so before the event happens which autho- rizes the party to have recourse to it for the purpose of obtaining the relief which it was intended to secure to him, it is, in point of fact, as if it had never been given, or as if it had been originally a mere nullity ; and therefore, in all such cases sureties should be given who are not only then sufficient ; but who are likely to be so when the contemplated event shall happen. Where money is (rf) Cox r. BozMAN. In this case, the bill having been dismissed with costs, the plaintiH" prayed an appeal which was granted ; and he thereupon filed an appeal bond, at the foot of which is the following certificate : " Talbot Countj', silicit, 31st October, 1785, I certify, that the aforegoing appeal bond was executed, by the signing, sealing, and delivery of the same, by the persons thereto signinj^, in the presence of the subscriber, one of the justices of the peace for the county aforesaid, and in the presence of John Tibbel and John Dougherty tlie subscribing witnesses, John Bracco." Chan. Proc. No. 2, page 250.— (e) 171G, ch. 1, s. 3; 17S9, ch. 26, B. 15 ; 1791, ch 54, s. S.— (/) Johnson v. Goldsborough, 1 H. &, J. 499. 4 26 RINGGOLD'S CASE. to be paid, or some duty is to be performed, within some short space of time, a continuance of the solvency of a surety may be much more confidently relied on than where the debt is to be paid, or the duty to be performed at some distant day. But in reckon- ing upon the probability of a surety's continuing to be solvent, during any given period, various other circumstances must be taken into consideration as well as the lapse of time ; his continu- ing solvency may depend, in a great degree, upon the regular or irregular, certain or hazardous business in which he may be engaged ; thus, an agriculturalist, of the same extent of sufficiency, is more likely to continue solvent for the same space of time than a mer- chant. (^) The continuing solvency of a surety may also, in some measure, depend upon the kind of property held by him, as being such as is ordinarily acquired with a view to a permanent holding ; such as land for cultivation ; or such as personal property procured for consumption, or for the purpose of barter or traffic, which is easily alienated. (A) Hence it is, that many of our legislative enactments have required freeholders, or " persons of visible and landed estates," to be given as sureties, where their solvency was required to endure for any length of time.(/) The continuing sol- vency of a surety may, likewise, in some degree, depend upon the state of society in the country. In England, and in most other countries of Europe, property is either not so free, or it does not, or cannot be made to change hands so easily and so frequently as in ours. That very bold spirit of active enterprize of our citizens which is, in a great degree, the result of our free institutions ; and the unfettered rights of all property, render the continuance of the solvency of all persons, for any length of time, less certain here than elsewhere. In Maryland, however, a practice has long prevailed, as to the mode of showing the sufficiency of appeal bonds, and other such securities, which the Chancellor has been in various ways autho- rized or called upon to demand and approve, by which all these considerations seem to have been disregarded or totally put aside. For although it was, on the 7th of March, 1793, laid down as a standing rule, that no officer of this court or his deputy should be admitted as a surety in any such bond ; and also, by the rule of the 14th of November, 1801, that the sureties in such bonds should reside within the jurisdiction of the court ; yet, in all other respects, (g) 1 Ev. Polh. Obi. 390.— (h) 1 Ev. Poth. Obi. 390.— (i) 1715, ch. 46, s. 9; 1742, ch. 10 ; 1789. ch. 26, s. 15. RINGGOLD'S CASE. 27 it has been deemed enough to lay before the Chancellor a bond regularly drawn, and which purports to be the authentic instrument of those whose signature it bears ; and, if the pecuniary condition of the obligors be known to the Chancellor, he approves or disap- proves of it accordingly ; but, if the Chancellor has not himself a full knowledge of the situation of the obligors, then their suf- ficiency must be certified to him by some other judge, by a justice of the peace, or by one of the solicitors of the court ; upon which the bond is at once approved without notice to the opposite party, or further inquiry of any sort ;(j) for it has rarely, if ever, hap- pened, that the approval has been opposed, as by exceptions to bail in error, or to special bail ; and, if any such were taken, there does not appear to be any settled mode of proceeding, by which to cause the sureties to justify, to ascertain their sufficiency, or to have better sureties given, which would not be attended with much trouble and delay. Such certificates of sufficiency, it is certain, are, in many cases, too easily obtained ; yet there appears to be no adequate mode of correcting the evil. The court might censure or punish one of its own solicitors who should carelessly or unwor- thily certify sureties to be sufficient who he knew were not so ; but the Chancellor can exercise no such authority over a judge, or a justice of the peace ; and yet the most of such certificates come from justices of the peace. The legislature may provide some mode of guarding against these evils ;{k) but until they have done so, this court must, in general, follow the existing and long estab- lished practice. The court does not, however, mean to say, that such certificates are to be considered as, in all respects, final and conclusive evidence of the sufficiency of the sureties oflfered ; on the contrary, exceptions may be taken and proofs read ; and then, if the sureties offered, on a fair estimate of the whole, and on due consideration of all circumstances, appear to be insufficient, the bond will be rejected. (/) From all that has been presented to the court, in the case under consideration, and on making a fair estimate of the pecuniary (j) McMuLLEN V. BuRRis. A dccrcc having been passed appointing a trustee to sell lands to pay debts, he filed his bond accordingly which was endorsed thus. " Wm. Pinkney is well acquainted with the circumstances of Mr. Thomas, and begs leave to inform the Chancellor, that the within bond is ample security for the performance of his trust." Upon which it was " approved A. C. Hanson, Chan. 8th October, 1792." Similar in Deale v. Stewart, 1794 ; Coale v. Garretson, 1795, &c. &c.— (/c) Votes & Pro. Ho. Del. 4th February, 1S25.— (Z) Somo provision has been since made in relation to this matter by 1826, ch. 200, s. 15. 28 HOYE V. PENN. ability of all the obligors in the bond, which the court is asked to approve, there appears to be an ample sufficiency to answer the amount of the decree should it be affirmed. This court cannot allow itself now to depart from the existing practice, or undertake to introduce any new rule in restraint of the right of appeal, which seems to have been always most liberally indulged. To sustain the objections, that have been urged upon the present occasion, would be, in effect, to put aside a practice which seems to have been long settled wdth the entire understanding and approbation of the whole community. Whereupon it is Ordered, that the said petition be dismissed, with costs, and tliat the bond be approved. HOYE V. PENN. On a bill against A. Sc B. joint and several obligors, it was held, that the trustee, appointed by the decree to make sale of their real estate for the payment of tlie debt, should be directed to sell so much of the land held by A. in the first instance as would raise one half of the debt, and to sell so much of the land held by B. in the first instance as would raise the other half of the debt, so far as, in that way, it might be found practicable ; but with power to raise the amount by a sale of the whole at a succeeding period, if it can be done ; or in the first instance, if it should appear to be absolutely necessary to do so. And where a sale had been made, as thus directed, of so much of the land of each as not only to pay the half of the debt, due from each ; but to leave a surplus of the proceeds of sale to be returned to each ; and afterwards the purchaser of the land of A. became wholly insolvent, and the land which had been so taken from A., on a resale, did not produce even a sufficiency to pay tlie one half of the debt for the satisfaction of which it had been first sold : it was held, that to the amount of the surplus, A. was to be considered as a creditor entitled to come in pro rata, with the plaintiff, in the distribution of the proceeds raised by tlie second sale ; but, that neither the plaintiff, nor A., could have the deficiency of their respective claims made up to either of them out of the surplus arising from the sale of B.'s estate : the whole of which should be paid to him. The mere forbearance to sue, without fraud or collusion, cannot affect the obligee's rights against the obligor or his surety. A voluntary conveyance to children, the grantor being indebted at the time, is fraudu- lent against creditors, without any other evidence of a fraudulent intention. There can be no final decree until all the defendants have answered, or the case is in a situation to have the bill taken jno confcsso against those defendants who have not answered. A party, against whom the bill had been taken pro confesso, asked leave to come in, for the purpose of taking an appeal, which was reftised ; he, nevertheless, appealed, and carried the record up ; upon which the Court of Appeals affirmed the decree. HOYE V. PEiSTN. 29 The defendants, as heirs or de\'isees of the deceased debtor, to pay whose debts the lands have been sold, may have their respective interests adjusted, so as to have the surplus of the proceeds of sale distributed among them as such. The share or dividend awarded to a party may be paid to his solicitor, or to his attorney in fact, on a power of attorney properly authenticated. This bill \vas filed, on the 10th of July 1802, by Francis Dea- kins, executor of William Deakins, and Benjamin Stoddart, against Benny Penn, Roby Penn, Ckarles Penn, junr., William Poin, Betsy Penn, William G. Penn, Sarah- Penn, and Caleb Penn, grantees and heirs of the late diaries Penn, senr., and JVathan Waters and Evan Gaither. Before any of the defendants had answered, the plaintiff Francis Deakins died, and administration de bonis non was granted on the estate of the late William Deakins to John Hoye; and the defendants, Charles Penn, junr., and William Penn, died; and Benny Penn and Roby Penn removed out of the State. Upon which a bill of revivor was filed by Hoye and Stoddart, making John Penn and Lucy Penn, the infant heirs of the late Cliarles Penn, junr. ; and Ann Penn, and Greenbury Penn, the infant heirs of the late William Penn, defendants ; and praying for an order of publication against the absent defendants, which was passed accordingly. Subpoenas were issued on this bill, some of which, instead pf being sensed by the sheriff, as is most usual, were served by disinterested persons who made aflEidavit of the fact ; which, according to the course of the court, was held to be sufficient. The bill states, that Ignatius Pigman, Joseph W. Pigman, Charles Penn, senr., and JVathan Waters, being indebted unto a certain Edward Gwinn, in the sum of <£56S 18^. \d., on the 21st of September 1788, gave their joint and several bond to Gwinn for that amount; that Gwinn brought separate suits and recovered judgments on the bond against Charles Penn, senr., and Ignatius Pigman, for the principal, with interest from the 21st of September 1792, and costs. Upon which Cliarles Penn, sen'r, brought a writ of error, and the plaintiff Stoddart, with the late William Dealcins, became bound as sureties in a bond to prosecute the writ of error ; that, the judgment having been affirmed, suits were severally brought against the plaintiff Stoddart and the executor of the late William Deakins ; and, judgments having been obtained against them, they, on the 1st of May 1802, paid the whole debt, princi- pal, interest, and costs, then amounting to ^£934 10s. 9|c?. ; that the late Charles Penn, senr., had, in his lifetime, conveyed all his real estate, consisting of sundry parcels of land lying in Montgomery 30 IIOYE V. PENN. county, to his childi'en ; that is to say, by a deed of the 22d of March 1792, he conveyed one parcel thereof to his three sons Benny, Roby, and Zachius, as joint tenants, of whom the two first are the survivors ; and by another deed of the 7th of May 1792, he conveyed another parcel to his two sons Charles and William as joint tenants ; and, by a third deed of the 24th July 1792, he conveyed the residue of his real estate to his children Betsy Penn, William G. Penn, Sarah Pemi, and Caleb Penn, as joint tenants ; that the defendant Waters had conveyed all his real estate, being a tract of land in Anne Arundel county, to his brother-in-law the defendant Evan Gaither, that those conveyances were made without any valuable consideration, in fraud of these plaintiffs, after they had given their bond to Edward Gwinn ; and in fraud of other cre- ditors ; that Ignatius Pigman was not a resident of this State ; and that diaries Penn, senr., was dead insolvent. Whereupon the plaintiffs prayed, that they might, by substitution, stand in the situation which Edward Gwinn would have been in ; that the defendants might respectively pay and contribute in satisfaction of the money the plaintiffs have paid, such sums as might be proper ; and, that the plaintiffs might have such other and further relief as was suited to the nature of their case. The order warning the absent defendants to appear and answer was published as required. The defendants Benny Penn, William G. Penn, and Elizabeth Penn, put in their answers ; and the infant defendants John Penn, Lucy Penn, Ann Penn, Greenbury Penny and Sarah Penn, answered by their guardian ; Caleb Penn died, and his interests survived. By consent of parties, commissions were issued, and testimony taken and returned. It was admitted, that the late Charles Penn, senr., had executed the bond as a surety of Ignatius Pigman, and it was agreed that the auditor should state an account of the sum due to the plaintiffs, subject to all exceptions. Pursuant to which agreement the auditor calculated the interest upon the amount of the judgments up to the 11th of July 1810, making an aggregate amount then due of jei394 Os. 5d. 1st May, 1811. — Kilty, Chan. — The Chancellor has considered the arguments of the counsel on each side in their notes in writing ; and has examined the proceedings in the suit. Several grounds of defence are taken ; first, that Pigman was in prosperous cir- cumstances at the time he purchased the goods from Gwinn, and remained so more than seven years after. It does not appear how HOYE V. PENN. 31 this can affect the right of the complainants ; unless some fraudu- lent delay or collusion was proved to the injury of Penn. The bond to Edward Gwinn was dated the 21st of September 1788, but was not payable until the 21st of September 1792. And although it seems to be admitted, that Pigman was the principal, and the other obligors the sureties ; yet they all appear as princi- pals in the condition of the bond. Suits were not brought on the bond until April 1795 ; but such forbearance is not unusual, and does not affect the right of the obligee. And the sureties, if they thought proper to pay off the bond, might have had it assigned to them, and have brought suit against the principal. The judgments, against Pigman and against Charles Penn, were obtained at October term, 1796, with a stay of execution till the 1st of January 1797. The judgment against Pigman was removed in February 1797, as appears by the record, although the writ of error bond is left blank as to the dates ; and admitting, that this bond was executed by Deakins and Stoddart to oblige Pigman, there is nothing suspicious in the transaction ; and it appears also, that a similar bond was executed, about the same time, by Charles Penn, with the same sureties. Edward Gwinn died before November 1798, at which time his administratrix had appeared, and the judgment was affiimed. There is nothing to shew, that she was disposed to favour Pig- man ; and it is presumed, that she W'Ould have recovered the money from him or Charles Penn, by execution, if in her power. But suits were brought against the executor of Deakins and against Stoddart on the appeal bonds, and judgments obtained thereon at May and October term 1801, against them as sureties for Penn, as well as for Pigm,an. The money was paid by them on the 1st of May 1802, and the judgment against Pigman only was assigned to them. This was the commencement of their claim against Charles Penn or his heir or representatives, and they filed the present bill in July 1802. It appears by the testimony of Benjamin Ray, that executions were issued against Pigman, and Penn, which were both served, so that there was no neglect on the part of Gwinn to pur- sue his legal remedy, supposing, that he was obliged so to do, which was not the case. If Pigman had been possessed of visi- ble property, a resort to it would have been preferable to a suit on the writ of error bond. And as to Penn it is to be observed, that the conveyance of his lands in 1792, prevented their being taken on the judgment, and affirmance in 1796 and 1798, by which 32 HOYE V. PENN. the debt might have been satisfied, and the complainants relieved from their engagements. It is also contended, that there was an intention to defraud at the time the conveyances were made. This point is not very clear on considering the time ; which was in the year when the bond to Gwinn became due ; and on adverting to the evidence of Benja- min Ray, and George Ray. But the Chancellor considers them as voluntary conveyances, which, though founded on a good and meritorious consideration as to his children, and grand children, were not bo7ia fide as against creditors, but were a badge of fraud in legal contemplation ; and so strong a one as not to require any further proof of the intention, the grant or being indebted at the time. A third ground is, that the deeds were made to confirm gifts before made to the children, or in consequence of their being settled on the lands which their father had intended to give them. On this ground the Chancellor does not perceive, from the evidence, any acts or declarations, that would have obliged Charles Penn, the father, to make the conveyances ; and even if he had gone so far as to make them, and had kept them in his own power, it would not have bound him. The other ground, of the payment having been made to Deakins, is not supported by the testimony. The Chancellor is, therefore, of opinion, that the complainants are entitled to relief against all the defendants ; but the manner, and the proportion in which they ought to contribute, he has not considered ; nor the specific manner of granting the relief; both which will be determined, on the counsel for the complainant pre- paring a decree. JYathan Waters, and Evan GaitJier were named as defendants in the bill. There are no answers by them, and it is not perceived how they are disposed of, although Evan Gaitherh will is among the papers. After which, the case was again brought before the court by the plaintiffs, who asked for instructions as to the form of the final decree. 18^/i September, 1811. — Kilty, Chai}. — The Chancellor has again examined the papers in this suit. It appears that Penn and Waters were equally liable ; whether as principals in the bond to Gwinn, or as sureties. Waters was not taken on the writ against him, but his property might have been made liable. HOYE V. PENN. 33 The appeal bond was given on account of Pigman, and a simi- lar bond on account of Pom ; but tlie payment was made on a judgment on the appeal for Pigynan, and the relief is prayed on the ground of substitution for Gwinn, The object of the bill was to affect the land conveyed by Penn ; and also that conveyed by Waters to Evan Gaither, who was made a defendant. And the prayer was, that the aforesaid defendants might respectively pay, and contribute in satisfaction of the money paid by the complainants, such sums as might be proper. The defendant, Ga'dher, is since dead, and has de\-ised the land in question to the defendant. Waters ; and his wife, Susanna Waters, the sister of Gaither. Waters has not appeared ; and an attachment, renewed in April last, for his appearance, has been returned non est. Before a decree can be made, some further proceeding is neces- sary. Either, that Waters should, on application for amendment, be struck out of the bill, if the complainant's counsel should think it safe and advisable to make such an application ; or, that he should be compelled to appear ; or the necessary orders be applied for, and passed for taking the bill, as against him, pro confesso : and also, that his wife, the other devisee, should be made a party in order to have her interest in the land affected. After which the decree should be for a sale of the interest of Waters and wife for half of the debt ; and Perni's for the other half, in the first instance ; but leaving each eventually liable for the whole. On the 19th of September 1811, the plaintiffs filed a bill of revi- vor, in which they stated, that Evan Gaither was dead, and by his will had devised his interest in the property in dispute to JVathan Waters and Susanna his wife ; against whom the plaintiffs prayed relief, a subpcena, &c. 2-ithJ\iarch, 1812. — Kilty, CImncellor. — This case had been sub- mitted on notes ; but was considered by the Chancellor as not ready for decision for the reasons stated in his order of September 18th, 1811. Since that time process has issued against JVathati Waters and Susanna his wife ; and, such of the parties as appeared have been heard by their counsel at the present term. The Chancellor finds no reason to change the opinions, which he had fonned, and which were expressed by him in his order above refen-ed to; and by his remarks in writing, dated the 1st of May, and the iSth of September 1811 ; and will proceed to decree accordingly. 6 34 HOYE V. PENN. 3incc the order of May 1st, 1811, a bill of revivor has been filed by the complainants, Hoye and Stoddart, against JYathan Waters and Susanna his wife, devisees of Evan Gaither, whose death is therein stated. The death of Susanna has since been suggested on the docket; but her interest is considered as surviving to JVatha7i Waters ; and, against him there has been an attachment, with proclamations, which enables the Chancellor to take the bill pro confesso against him. With respect to the sums due, the Chancellor is of opinion, that as there was no decree to account, but only an agreement of the parties to have the sum due stated ; the sum of ,£459 9^. Ihd., charged as interest in the auditor's statement, ought not to be made principal as is usual in other cases. It is thereupon Decreed, that the bill of the complainants, as against JYathan Waters, be taken pro coivfesso. It is further decreed, that the real estate, stated in the bill to have been conveyed by Charles Penn, sen'r, and JYathan Waters, by the deeds therein exhibited, be sold ; or such part of each as may be necessary for the purposes hereinafter stated ; that John Brewer of the city of Annapolis be and he is hereby appointed trastee to make sale thereof; and that the course and manner of his proceedings be as follows, to wit : he shall first give bond to the State of Maryland in the penal sum of 10,000 dollars with a surety or sureties to be approved by the Chancellor, conditioned for the faithful discharge of the trust reposed in him by this decree, or any other order or decree in the premises. He shall then proceed to give notice, by advertise- ment in such newspaper or papers as he may judge prope^r, for at least three successive weeks, of tlie manner and terms of sale ; which shall be, that the purchaser or purchasers shall give bond with surety, to be approved by the trustee, for the payment 6i the purchase money, with interest from the day of sale, wuthin twelve months therefrom. The trustee shall then proceed, according to the notice, to make sale of the lands aforesaid at public vendue ; or of so much thereof as will raise the sum of ^£934 \0s. ^Id. current money, with interest thereon from the 1st day of May 1802, until paid, and the costs of this suit, and the amount of the commission as lar as the same can be estimated. And in determining on the quantity of each part, to be first sold, the trustee shall sell the land held by the heirs of Penn, in the first instance, to raise one half of tlie debt, costs, and commission ; and shall sell the land devised to JYathan Waters, in the first instance, to raise the other half; as far HO YE V. PENX. 35 as this way may be found practicable ; but, with power, according to the first part of this decree, to raise the amount by a sale of the whole at a succeeding period, if it can be done ; or, in the first instance, if it should appear absolutely necessary ; subject, however, to the ratification of this court. And the trustee shall return as soon as conveniently may be, a statement of his pro- ceedings under this decree, with an affidavit of the truth thereof; and shall return the bond or bonds taken, and the money when received, to be applied according to the further order of the court. And on the ratification of the sales or any sale, and on the pay- ment of the purchase money, and not before, the trustee shall convey to the purchaser or purchasers the lands so bought, free and clear from all claim of the defendants or any of them. And the trustee shall receive for his trouble such commission as the Chancellor shall consider him entitled to on a view of all the circumstances of the case. The sales to be on the premises respectively, unless any difficulties or inconveniences should occur to render such sales improper. The defendant, JVatlian Waters^ by his petition, filed on the 13th of July 1812, stated, that he wished to appeal from the decree ; and therefore prayed, that he might be admitted to appear so as to become a party for the purpose of prosecuting an appeal. 13th July, 1812. — Kilty, Chancellor. — The Chancellor has con- sidered the within petition, and is of opinion, that the prayer thereof, to admit the petitioner to appear, ought not to be granted. JVathan Waters nevertheless appealed, gave bond with sureties which was approved. And, at June terni 1818, of the Court of Appeals, the decree was affirmed. The trustee appointed to make the sale, reported, that he had, on the 23d of November 1818, with the consent of the possessors, sold the whole of the lands lying in Montgomery county which had been conveyed by the late Charles Penn, sen'r ; and that the whole of the lands lying in Ann Arundel county which had been conveyed to the defendant JVathaii Waters, he had sold to James Ferree. The aggregate amount of sales being $10,711 50. The usual order giving notice, having been pub- lished, and no cause having been shewn to the contrary, these sales were, on the 26th of January 1819, absolutely ratified and confirmed. 36 HOYE V. PENN. The auditor on the 26th of February 1819 reported, that he had examined the proceedings, and from them had stated an account betM-een the estates of Charles Penn, sen'r, deceased, and JVathan Waters, and the trustee, in which the proceeds of each estate were apphed to the payment of one half of the complainant's claim and costs, and its proportion of the trustee's allowance for commission and expenses ; and the balances respectively were made payable to the said JYathan Waters, and to those entitled to claim under the said Charles Penn, sen'r, deceased. The auditor further reported, that his impression was, that the surviving grantees of CJiarles Penn, sen'r, were entitled to the balance of his estate in proportion to the quantity of land held by each in virtue of his several deeds. But, it not appearing which of his two children, Charles Pm?i,jun'r, and William Penn, survived the other, he had not been able to make the distribution accordingly. From this account, stated by the auditor, as of the 23d of November 1818, being the day of the sales, it appeared, that the amount of the sales of Pemi's estate was $4211 50; that the amount of the sales of Waters'' estate was $6500; and that tKe amount of the plaintiff's claim, with interest up to that time, was $4968 43 ; leaving a surplus of the proceeds of the sales, after deducting all commissions and costs, of $1306 41, to be distributed among the grantees of Charles Penn, sen., deceased ; and, the sum of $3515 64, which was awarded to the defendant Mathan Waters. 6th March, 1819. — Kilty, Chancellor. — Ordered, that the above statement, as reported, be confirmed ; and the proceeds applied accordingly ; except the sum to be distributed among the grantees of Charles Penn, sen'r, which is reserved for further order. Interest to be paid on the commission, claim, and dividends, in proportion as it has been or may be received. After which, on the 25th of October 1819, the Chancellor again ordered upon this account, that the trustee, after retaining his commission and paying such costs above reported as may be still due to the ofucers, may deposit, to the credit of the estates, any sum in his hands, or to be received It having been shewn, that Benny Penn had assigned a part of the land he had purchased of the trustee, to Lyde Griffith; and that William G. Penn had assigned a part of that which he had purchased to Cnleh R. Penn, and Ann his wife ; it was, on the 7th of July 1820, ordered, that, on the purchase money being paid, the trustee convey according to those assignments. HO YE V. PENN. 37 The plaintiiF, John Hoije, on the 1st of February 1821, filed his petition, on oath, in which he stated, that he had agreed with the plaint iff, Stoddart, that he, Hoye, should be at all the trouble and expense of prosecuting this suit ; and also another suit against Lloyd Beall, in which these plaintiffs were jointly interested ; and, that he. Hoys, should be remunerated for all his expenses ; and, also be allowed for his trouble a reasonable commission upon whatever should be recovered ; and, that he had accordingly pro- secuted those suits ; and had, for that purpose, expended in vari- ous ways the sum of $1154 40 ; that Stoddart, after the agreement with this petitioner, had assigned all his interest in those suits to Charles Gassaway, who had refused to contribute any thing towards the expense of prosecuting them ; that Gassaway was dead, leaving William Dame and Charles Gassaway his executors ; that Stoddart was dead intestate, and no administration had been granted on his estate ; and, that the auditor, in the account reported by him, had awarded the amount claimed by the plaintiffs to them jointly, without making any division of it between them. Whereupon the petitioner prayed, that this his separate claim might be allowed out of the amount so awarded to the plaintiffs jointly, &c. At the same time the executors of the late Charles Gassaway, filed their petition, claiming the one half of the amount of the pro- ceeds which had been awarded to the plaintiffs, for their testator, who was the assignee of the plaintiff Stoddart. 3d February, 1821. — Kilty, Cliancellor. — On considering the above petition, it is Ordered, that the auditor state the claim of the petitioner, (Hoye,) giving notice and taking evidence in the usual manner. The application of the proceeds under the order of March 1819, (as to the petitioner and C. Gassaway^ s executors,) to be suspended till further order. The order to be made on the above petition, (by Gassaivay^s executors,) will depend on the decision on the petition filed by /. Hoye. In pursuance of this order, the auditor reported, on the 6th of February 1821, that the petitioners, Hoye and Dame, had appeared before him, and come to an agreement, according to which, he had made a dividend of the amount allowed to the plaintiffs, between them, awarding to Hoye the sum agreed upon ; which report of the auditor was immediately confirmed. The defendant William G. Peim, filed two petitions, in which he stated, that he was interested as a purchaser of a part of the lands 38 HOYE V. PENN. in Montgomeiy county ; and also as one of the legal representatives of his late father, Charles Peim, sen'r ; among whom it appeared, that there was a large surplus to be distributed. Whereupon he prayed, that the surplus might be distributed ; and, that the share due to him might be deducted from the purchase money he had stipulated to pay, &c. 23d January, 1823. — Johnson, Chancellor. — I do not perceive by the proceedings, that the surplus ever has been divided. The auditor's report of the 26th of February 1819, makes a surplus of $1306 4i to be distributed among the grantees of Charles Penn, sen'r, deceased ; but, who they are, or what proportion each is entitled to receive, don't appear. The exhibits filed with the petition of William G. Penn are too informal, and some of them want even the appearance of proof. An order, such as requested by the petitioner, don't appear, at pre- sent, proper to pass. But on application, an order may be obtained for the auditor to state who are entitled to the surplus and the pro- portion of each ; and then, on the petitioner obtaining their receipts to the trustee, given in conformity with the act of 1816, ch. 134, the trustee will be directed to execute a deed. In the mean time, to prevent the petitioner, (who I presume is entitled to the whole surplus,) from being compelled to pay money to the trustee, that he may hereafter plainly appear entitled to, an order may pass directing the trustee to suspend collecting that sum, with the inter- est, until further order. Ordered, that the auditor state an account in which he will designate who, and in what proportion, are entitled to the surplus money mentioned in his report of the 26th of February, 1819, and report the same. The report to be made from such evidence as is in the case ; and fi^om such as may be laid before him. As the petitioner's debt is suspended, and the time will not expire perhaps before the report of the auditor, it is thought premature to act on the latter part of the petition. On the same day the auditor made a report, in which he says, that it appearing now by the deposition of Adam Darby, filed yesterday, that William Penn survived Charles Penn, jun'r, he had, in obedience to the order of to-day, and in conformity with his report of the 26th February, 1819, stated the within account with the trustee, for so much of the proceeds of the said estate, as by the account then reported, was reserved for distribution among HOYE V. PENN. 39 the gi-antees of the said Charles Penn, sen'r. The nctt sum dis- tributed, he had first apportioned to the lands conveyed by the deceased, and sold by the trustee, according to the sums raised by the several parcels ; and then distributed each portion, among the surviving grantees of each parcel respectively ; the deceased's deeds having made them joint tenants thereof. This report was, by an order of the 29th of January, 1823, confirmed, and the pro- ceeds directed to be applied accordingly. The trustee represented to the Chancellor, that Benny Penn, had now assigned the whole of the land which he had purchased, to Lyde Griffith, who was his surety in the bond, given to secure the payment of the purchase money ; that the land having sold for more than the debt due, a portion of the surplus was to go to Benny Penn, which sum Griffith wished not to be compelled to pay to the trustee, or to bring into court. Whereupon the trustee prayed the direction of the court. 24:th Jlpril, 1823. — Johnson, Chancellor. — On examining the assignment from Benny Penn to Lyde Griffith, dated the 7th July, 1820, 1 perceive, that Griffith is to pay the full purchase money and interest due thereon, before the trustee is to execute a deed. By the terms of the original decree, the trustee is restrained from giving a deed until the whole purchase money is paid ; and therefore, without a special order to the contrarj^, must act accordingly. Griffith may have not only purchased the land from Penn, but at the time, it may have been agreed, that he was to have all the interest Penn had in the estate ; if so, and Penn, and himself will join in an application, the sum due to Penn may, by an order, be placed to the credit of Griffith ; and a deed directed on the trustees receiving the balance ; otherwise, in the language of the assign- ment, he must pay the full purchase money and interest. After which, Benny Penn again moved to obtain further instruc- tion as to the distribution of the proceeds and the amount to be paid by Griffith, &c. IQth June, 1823. — Johnson, Chancellor. — Mr. Benny Penn will present this to the trustee, who is willing that Mr. Griffith should come to a settlement on payment of the purchase money, deducting the amount, according to the statement of the auditor, that is due to him. Let the trustee take Mr. Pemi's receipt for the sum thus appearing due to him, and that amount Mr. Griffith can have deducted from the purchase money. Rohy Penn appears, by the 40 HOYE V. PENN. report of the auditor, to be equally entitled to the sum of $511 14, stated in the report of the auditor, as the proportion of Benny Penn and Roby ; and he, I am informed, is willing to make a deduction on account of his having before sold part of the land to Fielder Parker ; Roby Penn is not in the State, but has left a person autho- rized to act for him. On the trustee's obtaining the receipt of the agent for the amount appearing due to Roby, that also can be passed to the credit of Mr. Griffith ; and he and the agent can then settle between them. By this course, the trustee's proceedings in this Court will comport with his trust. Roby Penn Q.nd Betsy Penn, then residents of the State of New York, gave a power of attorney to Benjamin Willet, authorizing him to receive their dividends ; which power of attorney was executed before a magistrate of the county, in New York, where they resided ; and further authenticated by a certificate, under the seal of the county, that the magistrate w^as properly commissioned as such at the time. 23(^/t«ie, 1823, — Johssos , Chancellor. — Ordered, that the trustee be authorized to settle with the attorney WiUet.(a) James Ferree, .Abraham Ferr,ee, and Basil Warfield, with the trustee, filed their petition, in which they stated, that to secure the payment of the purchase money for the lands in Anne Arundel county, which had been sold to James Ferree, he had given bond, with Jibraham Ferree and Basil Warfield as his sureties ; that James had sold his interest in the land to Abraham; that the trustee, having brought suit and obtained judgment on the bond, had sued out a fieri facias, which, having been levied on the land, so sold to James, it had been accordingly advertised to be sold ; that if sold by the sheriff for cash, it v/ould not sell for more than one third (a) So in England, money has been directed to be paid to an attorney in fact, on a power made in Paris, and duly authenticated, I Mad. Rep. 227; and, in some cases there, it has also been ordered to be paid to the solicitor of the party entitled to it, without any special order from the party himself; 1 Salk. 157 ; Doug. 623 ; 1 Blac. S ; 1 T. R. 710 ; Free. Clian. 209 ; J 47 even upon English authority, a court of justice cannot be permitted in any case to legislate ;(«) and because, by the constitution of our Republic, (6) the three departments having been directed to be kept for ever separate, the judiciary has been expressly excluded from every species of legislation ; and is precluded from supplying any omissions of the legislature, however obvious or necessary it may be for attaining the object in view. Hence, it clearly follows, that in all cases of this kind, even where the courts of common law and of equity have concurrent jurisdiction ; tlie law and course of proceeding of the forum resorted to must be pursued. (c) The act to direct descents gives to the several heirs of an intes- tate a right to have a partition of his estate made among them ; and has, in part, prescribed the manner in which such partition may be obtained ; and, consequently, so far this court must act according to the prescribed mode ; but, in all other respects, it must be governed by its own established course of proceeding in so far as it can be modified, and adapted to the positive enactments of the legislature. In all cases of this kind, as has been done in this instance, it is indispensably necessary, that the petition should state, with sufficient perspicuity, where or in what counties the lands, or estate of the intestate lie ; the name of his widow, if she be then living ; and the names and description of his heirs, w^hether adult or infant ; and where resident, in or out of the State ; to the end, that, if they be inhabitants of the State, notice may be given to them ; or if not, that they may be warned by publication as allowed by the 50th section of the act. The commission aw^arded must, in all cases, exactly recite the petition for the government of the commissioners in their proceedings ; and the court will expect, in every case, that the petitioner should, as in this instance, nominate to it some suitable, disinterested, and respectable persons as commissioners. The form of the commission to be issued in this, and all similar cases, shall be as follows. •' The State of Maryland, " To Joseph Toumshend, Henry Stouffer, James Mosher, Geoi-ge Decker, and John Hillen, of Baltimore County, Greeting : " Whereas George Augustus Hughes and Christopher Hughes, by their petition to the Chancellor of Maryland, have set forth, that the late (a) Weale v. West Middlesex Wa. Comp. 1 Jac. 8c Wal. 371 ; The Bank of Colum- bia i;. Ross, 4 H. & M'H. 4.56.— (6) Deck. Rig. art. 6.— (r) 3 Blac. Com. 436. 48 HUGHES' CASE. Christopher Hughes, their father, died intestate and seized in fee simple of sundry parcels of land and real estate lying and being in Baltimore county and in Anne Arundel county, leaving a widow, Peggy Hughes, and six children ; that is to say, the said petitioners, who are both of full age ; and Peggy, who has intermarried with Samuel Moore ; Louisa Jlrmistead, who heretofore intermarried with George Armistead, since deceased ; Mary, who has intermarried with Horatio G. Armstrong ; and Juliana, who has intermanied with Charles M. Thntston; to whom the said real estate has descended. And the said petitioners allege, that the par- ties so entitled cannot agree upon a division thereof; they have therefore prayed, that partition of the said estate may be made among the afore- said heirs according to their several just proportions, agreeably to the act of assembly in such case made and provided ; which said prayer hath been granted : and it being suggested to the Chancellor, that you are dis- creet and sensible men within the said county ; and the Chancellor having great confidence in your prudence and integrity, hath therefore assigned, commissioned, and appointed ; and doth hereby assign, commission and appoint you, or a majority of you, having first taken the oath hereto annexed, to adjudge and determine whether the said estate will admit of being divided without loss or injury to all the parties entitled, and to ascertain the value of the said estate in lawful money, taking into con- sideration any incumbrances thereon ; and to ascertain the value of the said estate subject to the incumbrances; and if the said estate can, in your opinion and judgment, or in the opinion and judgment of a major- ibf of you, be divided without loss and injury to all the parties entitled, then to divide and make partition of the same fairly and equally in value, among all the parties interested, according to their several just propor- tions ; or if the said estate cannot be divided equally and fairly among all the parties interested according to their several just proportions, then you, or a majority of you, shall divide the estate into as many parts as it is susceptible of, without loss and injury to all the parties entitled, and ascertain the value of each part of such estate in lawful money, subject to any incumbrance thereon ; and if, in your opinion and judg- ment, or in the opinion and judgment of a majority of you, the said estate cannot be divided without loss or injury to all the parties, then you, or a majority of you, shall make return to our Court of Cliancery of your judgment, and the reasons upon which the same was formed, and the real value of the said estate in lawful money, subject to the incumbrance if any thereon ; and if you, or a majority of you, shall determine that the said estate can be divided in either of tlie ways herein before mentioned, without loss and injury to all parties, then you shall cause the lands to be sun'eyed and. laid out by the county surveyor, or such other person as you may think qualified, for the several parties in case the estate consists of lands ; and if the said estate shall be equally divided among HUGHES' CASE. 49 all the parties interested according to their several just proportions, then you, or a majority of you, shall allot to the several parties their respec- tive shares of the said land : and in case the said estate shall consist of houses, you, or a majority of you, shall make allotment and partition among the parties. And you, or a majority of you, are hereby empowered and directed to ascertain and lay off the widow's dower in and to the lands and tenements of the estate, before you shall proceed to divide or value the same ; and j-ou, or a majority of you, shall make the ascertainment and location of such dower a part of your return to this commission. And you, or a majority of you, shall cause notice to be given to all par- ties concerned, by advertisement, set up at the court house, and in such other public places in the said counties as you may direct, at least thirty days previous to your proceeding to execute this commission. And you, or a majority of you, are appointed commissioners to proceed in the premises, according to the directions of an act of the General Assembly of Maryland, passed at December session 1820; chap. 191, entitled, *' An act to reduce into one system the laws to direct descents." And you, or a majority of you, having made partition or allotment in manner aforesaid, shall make return of your proceedings to our Court of Chancery without delay. Witness the Honourable Theodorick Bland, Esquire, ChanceUor, this 18th day of April, 18-25." " TesY,— Ramsey Waters, Reg. Cur. Can." COMMISSIONERS' OATH. Be it remembered, that on this day of personally appeared Joseph Townshend, &c. before the subscriber, one of the Justices of the Peace in and for Baltimore county, and made oath, [or affirmation,] that they would well and faithfully perform the duties required of them by the annexed commission, and all duties assigned them under the act of Assem- bly therein referred to ; and that they would proceed in the execution and completion of the said commission without favour, partiahty, or preju- dice, and according to the best of their judgment and understanding. The commissioners made a return of their proceedings and the partition which they had made in pursuance of this commission ; and an agreement in writing, signed by each one of the heirs, pray- ing that the return might be ratified and a final decree passed, having been filed, the case was submitted accordingly. 21th Juli/y 1825. — Bland, Chancellor. — This case standing ready for hearing, and having been submitted, the proceedings were read and considered. Whereupon it is decreed, with the assent of the parties in writing filed, that the return of the commissioners and the 7 50 DEAVER V. REYNOLDS. partition by them made be and the same is hereby ratified and confirmed. And it is further decreed, with the assent aforesaid, that Louisa Armistead shall hold in severalty, and not jointly with the said heirs of the said Christopher Huglies, deceased, all those lots of ground which are contained in the grand division letter A, as described by the commissioners in their said return, and which is composed of the following lots, to wit : &c. &c. &c. The costs of the suit to be borne by the heirs in equal parts. DEAVER V. REYNOLDS. AVhere a person, who had allowed himself to be reported by the trastee as the highest bidder, without any design to bafSe the proceedings of the Court, stated, that he was unable to comply with the terms of the sale, he was discharged on pajTnent of costs only, without having tlie property resold at his risk. This bill was filed on the 29th July, 1824, by James Denver and Eliza his wife, against Lewis Reynolds, Mien Reynolds, and others, the heirs of the late Tobias Reynolds, to obtain a partition among them of the real estate of which he had died seized. The defend- ants answered ; and on the 30th of March 1825, a decree was passed, directing the estate to be sold for the purpose of effecting a division of its value, as it was incapable of a specific partition. The trustee reported, that he had made a sale as directed ; and that Lewis Reynolds was the purchaser. Upon which an order was passed, that the sale should be ratified unless cause were shewn to the contrary- on or before the 7th of July 1825. After which the trustee reported, that the purchaser had neglect- ed to give bond and comply with the terms of sale ; upon which he submitted the matter to the consideration of the Chancellor. And at the same time Lewis Reynolds, the purchaser, by a note in writing, stated, that it was entirely out of his power to comply with the terms of the sale ; and therefore prayed, that it might be set aside. 28^/4 July, 1825. — Bland, Chancellor. — It is not alleged, nor is it shewn, that there has been any design to baffle the proceedings of the court, or to obtain any undue advantage by this bidder. He seems to have had a fair intention to purchase, but has either been LATIMER V. HANSON. 51 disappointed in his means, or has not had the ability to make the purchase, which he had calculated upon. (a) I shall not, therefore, order the estate to be resold at his risk, or charge him with inter- est on the amount of the purchase money as a penalty for the dis- appointment he has occasioned. Yet, as he has, by this abortive attempt to purchase, put the case to much expense, it is but just, that he alone should be charged with it. Whereupon it is ordered, that the sale made to Lewis Reynolds, as reported by the trustee, be set aside ; that the trustee proceed, without delay, to resell the estate as directed by the decree ; that all the costs and expenses of this sale be paid by Lewis Reynolds ; and that the auditor, in stating an account making a distribution of the proceeds of sale, deduct the same from the amount to w^hich Lewis Reynolds may appear to be entitled. LATIMER V. HANSON. Where a bill has been filed for partition, creditors may come in on the ground of the insuiRciency of the personal estate of the deceased debtor whose real estate is thus proposed to be divided. A person appointed trustee is not obliged to accept the ofSce ; but if he does so, he is bound to obey the orders of the court. The court may order the proceeds of a sale in the hands of a trustee to be invested by him, so as to be made productive pending the litigation ; and if the trustee fails or refuses to make the investment accordingly, he may be ordered to bring in the whole amount, with compound interest, from the date of the order directing the investment. The bill, filed on the 31st May 1816, states, that the late Charles Wallace, by his last will, devised his real and personal estate to Leonard Sellman and Charles W. Hanson, to be by them, after the payment of his debts and certain legacies, diA-ided among the plaintiffs and defendants ; that Sellman is dead ; that Hanson, the surviving trustee, holds the property and refuses to execute the trust ; and that a partition of the real estate cannot be made without loss. Whereupon they prayed a sale and division of the proceeds. No opposition having been made to this prayer, a decree was passed the 1st of March, 1817, directing the real estate to be sold, and appointing JVicholas Brewer trustee for that purpose, who made sale thereof accordingly. (a) Hodder v. Ruffin, 1 Ves. & B. 54 J. 52 LATIMER V. HANSON. On the 9th of August 1819, Sarah 11. Smith filed a petition in behalf of herself and the other creditors of the late Charles Wallace, stating, that in April 1810, she had obtained a judgment against him in his lifetime for ^£450 4s. Id. ; that she is infonned that several judgments have been obtained against his executor, upon which executions have issued, which have been returned nulla bona ; that she cannot obtain payment from the personalty ; and therefore prays to be paid out of the proceeds of the sale of the real -estate in the hands of the trustee ; and that notice be given to the heirs, devisees, and creditors. 2Ath July, 1820. — Kilty, Chancellor. — On the petition of Sarah H. Smith, the auditor is directed to state an account of the claims against the estate of Charles Wallace if the proceedings are in a state for that purpose. Immediately after which the case was again brought before the court for further consideration on the same petition. 29ih July, 1820. — Kilty, Chancellor. — On the petition of Sarah H. Smith, claiming to be a creditor, and praying to be paid out of the proceeds of the said estate, on the ground, that the personal estate is insufficient, and that notice should be given to the heirs and devisees, and to the creditors; I have examined the proceed- ings, and find some difficulty in making the order at present. It has become the established practice to admit and determine on claims to the proceeds of sale on decrees for the purpose of divid- ing them ; but this being done to remedy the neglect or delay of creditors who might have filed their original bill, it is incumbent on them to shew who are at present the heirs and devisees, their resi- dence and ages, and to have order for publication against those out of the State. On the 31st December 1821, some of the devisees filed their petition, in which they stated, that the trustee, Breioer, had made sale of the real estate, and had the money then in his hands ; and stated further, that there are several disputes both at law and in equity, which have prevented a settlement of the personal estate of the said Charles Wallace, and it may remain for a long time doubt- ful whether the creditors or the representatives will be entitled to the proceeds of the said sales. In the mean time the debts are increased yearly by accruing interest, and the funds lie idle in the hands of the trustee. Part of the money arising from said sales LATIMER V. HANSON. 53 have now been upwards of three years in the trustee's hands. Upon which they prayed, that a trustee might be appointed to receive the money from A^ic/wlas Brewer, and who might be directed to invest it in some pubhc stocks, and the dividends thereof also to be invested. 2lst December, 1821. — Johnson, Chancellor. — On the afore- going petition, it is ordered, that the trustee, JVicholas Brewer, invest the money that he has, or shall receive in consequence of the sales made by him, in the stock of the Fanners Bank of Marjland, or in the stock of the Government of the United States, as he shall find most to the interest of those interested, and the dividends arising from such investment, in like manner to be invested. An annual report of the trustee is directed to be made to the court stating the amount invested, and the dividends arising therefrom, as well as the appropriations he shall have made of the dividends. On the first of April, 1824, some of the devisees filed a petition, praying that the trustee might be ordered to account for stock pur- chased ; or, if none had been purchased, that he might be charged with interest, and that another account might be stated making a distribution without charging him interest. Upon which it was ordered, that the accounts be stated by the auditor as prayed. 11th March, 1825. — Bland, Chancellor. — Ordered, that JVicho- las Brewer, trustee, on or before the second day of April next, bring into court the money in his hands arising from the sales of property sold by him, and the securities which remain uncollected, as also interest from the 1st January 1822, on the amount acknowledged by his report to have been received, or shew cause to the contrary : provided a copy of this order be served on the said trustee on or before the twentieth instant. The auditor, in his report of the 2d of July, 1825, says, " In obedience to the court's order of 24th July, 1820, he has made, of the claims exhibited against the estate of the said Charles Wallace, deceased, the statements marked A. A. as of the day of the trustee's last sales, and they amount, as appears for debts, to $8897 12, and for legacies to $2900 21 . The claims for debts are not established as the act of '98, and the practice of the court require. Nor have such proceedings thereon been taken as to enable the Chancellor regularly to allow them, if they were sufficiently vouched. Yet, one of them (No. 1.) being a judgment against the deceased in his lifetime, and of course a lien on the estate, he thinks it should, at least, be entertained 54 LATIMER V. HANSON. until the right of the claimant shall, on notice, have been decided. In execution of the court's order passed upon the petition of Wallace^ s devisees, filed 1st April 1824, he has stated the trustee's account with the estate, marked B., applying the proceeds thereof to the payment of his allowances for commission and expenses, and of the costs in this court, and distributing the balance among the deceased's residuary- devisees, assuming thus, that the personal estate is sufficient for the payment of debts and legacies, nothing being shewn to the contrary. And he has stated too, the trustee's account C. for so much of the pro- ceeds as he has received ; charging him therewith, and at his request, with the amount also of sales made to his son JV. Brewer, junr. then crediting his said allowances for commission, &c. and the sum he paid into court on the 6th of April last ; and so shewing a balance of $673 77 cents in his hands yet to be accounted for. At the foot of that account he has charged the trustee with interest also, from 1st January 1822, as directed ; and this makes the balance in his hands to be $1393 22, bearing further interest from 6th April 1825. On the 14th of July 1825, JYicholas Brewer, the trustee, filed his report, on oath, shewing cause in obedience to the order of the 17th of March 1825, in which report he says, " That by the decree, under which he acted, it became his duty to sell the property decreed to be sold, to take bond with sufficient sureties for the purchase money, to bring the bonds so taken, and the purchase money when received into court, or to apply it under the Chancellor's direction to those entitled to receive it, and he humbly conceives, that the Chancellor had no power to order him to invest the money when received and the accruing dividends compelling him to undergo labour and encounter risks not contemplated by his original appoint- ment, nor intended to be compensated by his commission, nor does he believe, that the Chancellor had any power to order the invest- ment of the proceeds of the sale of the real estate at all. " Notwithstanding, the trustee further states, that in obedience to the said order he did endeavour to procure stock of the Farmers Bank of Maryland, but was not successful ; and the stock of the Government of the United States was, at the date of the order, and ever since has been, above par, and would not have secured to the claimants six per cent, interest on their claims, which appeared to be the object of the petitioners. And the trustee, residing in Anna- polis, could not have obtained it, even at the then value, without the employment of brokers, or other agents, at the expense of commission to them, and involving risk to himself by their possible infidelity. LATIMER I'. HANSON. 55 " The trustee further represents, that he has made no interest from the funds in his hands, nor derived any pecuniary advantage from them, but has always been ready to bring them into court when required by the Chancellor to do so, and should have brought the whole into court under the Chancellor's order of the 17th March last, but that the auditor's statement, ascertaining the exact amount to be brought in, had not been made, and he is ready to bring in the residue. " The trustee further states, that the only dispute, that he knows of, which rendered it doubtful whether the heirs or devisees of said Wallace or his creditors should receive the said funds, was a suit in this court by Clmrles W. Hanson executor of Wallace, against John Murray, executor of John Muir, to which the trustee refers, in which the auditor's report was made on the 4th of July 1821, and was understood to be acquiesced in, and the decree passed on the 23d of February 1824 ; and which case the trustee was in daily expectation of being decided a considerable time before ; and he believes that was the suit which induced the petitioners to require the investment. " The tmstee further states, that not having succeeded in his en- deavours to invest the said funds, and the petitioners and their coun- sel being acquainted with the progress of the said suit of Hanson V. Murray, and often attending the Chancery Court, and not hav- ing called upon him to report, he had everj- reason to believe, that they were satisfied, that the funds should remain as they were. The trustee further states, that even if he were chargeable with interest in this case it would be going a great length to charge him from the moment the order to invest was made, which the auditor, at the instance of the petitioner's solicitor, has done." On the 18th of August 1825, Sarah H. Smith, with James Smith and Edward T. Bond, filed an amended petition, giving a more particular account of the nature of the claim and judgment mention- ed in her petition of the 9th of August 1819, and stating that she had assigned it to the two other petitioners ; that the personal estate of the late Charles Wallace was totally insufficient to pay his debts ; and praying that their claim might be paid out of the pro- ceeds of the sale of his real estate now in this court ; and that notice might be given to the heirs, devisees, and legatees. To this petition Charles W. Hanson, one of the devisees, filed his answer, on the 17th of November 1825, in which he says, that he does not know of or admit the said judgment, or the correctness 56 LATIMER I'. HANSON. thereof, or that the same is justly chargeable on the funds deposited in this court. And he also pleads, and relies upon, the act of limi- tations of 1715, ch. 23, s. 7, as a bar to the judgment. 29th Augustj 1825. — Bland, Chancellor. — The trustee having made a further report on the 14th of July last, shewing cause in obedience to the order of the 17th of March last, the parties were heard by their counsel, and the proceedings and proofs in relation thereto were read and considered. It is conceived there can be no doubt, that this court has the power to make such an order as that of the 31st December 1821 ; and, under the then circumstances of this case, its propriety was evident, (a) A person who is appointed a trustee by this court is not bound to accept the trust ; or to continue in the office longer than he chooses ; but, so long as he does consent to act in that capacity, he is bound implicitly to obey the orders of the court. In this case the trustee might have refused to take upon himself the risk, and trouble of executing the order of the 31st December 1821 ; but, if he thought proper to refuse, he was bound immediately to apprise the court of his determination, and to bring in those proceeds, then in his hands, w^hich the court had told him should remain no longer idle, but be made productive in the manner pointed out ; and, not having done so, he is clearly chargeable with interest. Whereupon it is Ordered, that JYicholas Brewer, the said trustee, forthwith bring into this court the sum of $1393 22, as stated by the account marked C. as part of the auditor's report returned on the. 6th of July last, together with interest on the said sum of money from the 6th day of April last. Some time after which, the case was again brought before the court, by a motion of the solicitor of the representatives of the late Charles Wallace, the petition of Sarah H. Smith, and others, filed on the 18th August, 1825, having been dismissed. 30^/i March, 1826. — Bland, Chancellor. — Ordered, that the auditor's statement of the 2d July, 1825, be ratified and confirmed ; and that the trustee apply the proceeds accordingly, with a due pro- portion of interest, that has been or may be received, towards the payment of such of the said claims as may remain due and unpaid after the payment of the sum now in bank ; for the payment of (a) Sprino; v. The South Caro. In. Comp. 6 Wheat. 519 ; 1 Harr. Pra. Chan. 256 ; 2 Fowl. Exch. Pra. 287. STRIKE'S CASE. 57 which to llie said claimant's soHcitor, the register is hereby directed to draw a check. The trustee, Brewery appealed from the order of the 29th of August, 1825; and under the name of the case o( JYicholas Brewer ^ vs. Charles W. Hanson, and others, on the 2d of July, 1828, the order was affirmed. STRIKE'S CASE. On a bill by a creditor, on its being shewn, that certain conveyances, by the debtor defendant to the other defendant, were executed for the purpose of delrauding the creditors of the debtor defendant, and without bona fide consideration ; they were by decree declared to be void, as against the complainant, and the property ordered to be sold. It was held, that, by such a decree, the plaintiiT's claim must be taken to have been establislied ; that the property directed to be sold was to be dealt with in that suit as if those annulled deeds had never existed ; that the proceeds of sale must be brought into court ; and that a reservation of " all equities as to the distribution of the proceeds of sale, are reserved by the court for hearing, on the trustee's report, on bringing into court the money or securities aiising on the sale," cannot be so construed as to abnegate any matter which had been thus decided. But, it was held to be proper matter of further direction, under such a decree, in the first place, that the legal interest on the plaintiff's debt was to be computed and allowed ; secondly, that an account was to be taken of the rents and profits of the property sold ; thirdly, that the claim for meliorations and improvements was to be consid- ered and determined ; and lastly, where other creditors were permitted to come in, that their respective claims were to be adjusted, allowed, or rejected. To what extent mesne profits may be recovered at common law, or in equity. A bona fide holder, without notice of any defect in his title, may be allowed for improvements ; but a fraudulent holder, or a mala fide meddler, can have no such allowance made to him. The allowance for improvements, where it can be made, may be set off eigainst the claim for rents and profits. It is not necessar}', that the bill should expressly state, that the suit has been insti- tuted as well for the benefit ofother creditors as of the plaintiff, to have it considered as a creditors' suit. It is enough, that the case is, in its nature, a creditors' suit. The mode in which other creditors are called, and cdlo wed to come in ; and the manner of authenticating their claims. Against such claims the statute of limitations may be relied on by any other creditor as well as by the plainti/i", or a defendant. A creditor can in no case be suffered to split up his claim so as to multiply suits ; nor can he, after the decree, be allowed to bring in any new and additional claim. All objections to the testimony are open, and may be made at the final hearing. Agreements between solicitors and suitors, relative to professional services, must be enibrced like other contracts ; and cannot be introduced into and settled as a part of the case. No order or decree of a County Court can, aflor the case lias been removed, be altered or reversed by tlie Court of Chancery. This bill v.-as filed, in Baltimore County Court, on the 25th day of February, 1817, by William McDonaldy against John Rogers and 8 58 STRIKE'S CASE. JYicholas Strike ; and, on the 21st of May, 1819, the bill was so amended by consent, as to allow Samuel McDonald also to come in as a plaintiff; and, that the claim should be made as due to them as partners, under the firm of McDonald §' Son. It is stated in the bill, as thus amended, that the plaintiffs are and have been some time past partners in trade, under the firm of McDonald ^' Son ; that, some time previous to the year 1811, a partnership had been formed and carried on, between the defendant Rogers and a certain Robert Henderson, under the firm of Hender- son 8f Rogers, who as such contracted considerable debts ; and, among others, that the firm of Henderson §* Rogers became, and are now indebted to the plaintiffs, as the firm of McDonald ^ Son, to the amount of about six thousand dollars ; that Henderson Sf Rogers, becoming embarrassed in their affairs, Rogers, for the purpose of preventing his private property from being made respon- sible for the debts of the firm, on the 16th of January, 1811, by two separate deeds of that date, assigned two lots of ground in the city of Baltimore, which he held as chattels real, subject to a ground rent, to the other defendant JYicholas Strike. These t\\^ deeds are exhibited as parts of the bill ; the one is expressed to be in consideration of the sum of five hundred dollars for one of the lots ; and, in the other, for the other lot, it is said to be in consider- ation of the sum of nineteen hundred dollars. In other respects, they are in the usual form of such instruments of assignment of leasehold property. It is further stated and averred in the bill, that the plaintiffs have every reason to believe, that there was no bona fide sale of those lots firom Rogers to Strike ; that no consideration passed between them ; that if Strike paid Rogers any money it was subsequently, and by way of loan on the security of those deeds ; and they were understood by the parties to be expressly to avoid the payment of the creditors of Rogers, or of Henderson ^~ Rogers. And, as evi- dence of this alleged fraud, the plaintiffs state, that a considerable part of the money paid by Strike to Rogers, was expended by Strike on one of the lots, after the execution of the deeds, and charged to Rogers as a part of the purchase money ; that another* portion of the pretended purchase money was expended by Rogers in erecting a furnace, and other permanent buildings on the other lot ; that another j)art of the alleged purchase money was a sum paid by Strike to Jacob Small, long after the execution of those deeds, and even after tlie application of Rogers for the benefit of STRIKE'S CASE. 59 the insolvent laws, and he, Strike, had been appointed the trustee of Rogers ; that Rogers, during two years after the date of those deeds, continued to receive the rents, and to pay the ground-rents and taxes of those lots ; that Strike, since the execution of the deeds, has often promised Rogers to reconvey the lots on the repay- ment of the money paid by him ; and that, in October 1812, the defendant, Rogers, applied to Baltimore County Court for the benefit of the insolvent laws, on which occasion the parties procured the defendant. Strike, to be named as his trustee, the better to conceal those fraudulent assignments. Upon which the bill prays, that those deeds of assignment may be declared null and void ; that the lots may be sold for the benefit of the creditors of Rogers, and of Henderson Sf Rogers ; that Strike may be compelled to account for the rents and profits of the lots from the date of the deeds ; and that the plaintiffs may have a suhpcena against Rogers and Strike to answer, &c. But there is no prayer for general relief. This biU propounds as an interrogatory to be answered by the defendants, " whether, at the period of executing the said convey- ances, the said Henderson ^ Rogers had not actually stopped payment as a conmaercial house ; and whether certain property of theirs had not been seized by certain persons alleging themselves creditors ?" But it is not alleged, that Robert Henderson, the part- ner of Rogers, was dead or insolvent ; nor is it distinctly averred, that the partnership is actually insolvent ; nor is Henderson made a party to this suit. The defendant, JVicholns Strike, on the 29th of NoA-ember 1817, put in his answer to this bill, in which he says, that he knows nothing of any debt being due from Henderson Sj" Rogers to the plaintiffs ; that the deeds of assignment were made by Rogers to him bona fide ; the full consideration monpy, as set forth in them, having been paid by him to Rogers ; and they were not executed to him to cover any loan of money due by Hendersoji §• Rogers, or either of them ; nor were those lots conveyed to him in trust, or by way of mortgage or security, or to evade the claims of the cre- ditors of Henderson §' Rogers, or of either of them ; that Hender- son Sf Rogers, or either of them, were not indebted to him previous to the execution of those deeds ; that he purchased those lots absolutely, for his (jwn use, and paid for them out of his own moneys ; that after he made the purchase, he improved one of them, by erecting additional buildings thereon, at his own expense, for 60 STRIKE'S CASE. which he never did charge Rogers; that after he had obtained possession of the lots, he leased one of them for a term of years ; and the tenants, not Rogers, erected on it a furnace which is of no use to him, Stnke, and which the tenants have a right to remove ; that after he purchased, Rogers never received the rents, nor paid the ground rents and taxes with his. Strikers, consent ; that he never promised Rogers to reconvey the property to him on his repaying the purchase money; that he paid the whole purchase money to Rogers, and never paid any part of it to Jacob Small; that Rogers continued to occupy one of the lots after the execution of the deeds; and on his failing to pay the rent, he. Strike, distrained his property for the rent in arrear, and thus obtained payment; and finally, that he was appointed trustee under the insolvent laws for Rogers ; but never, as such, received any of his property. Upon this answer the defendant. Strike, rested his defence ; he never asked or obtained leave to put in any other answer ; nor did he in fact ever put upon file any paper purporting to be a further answer to this bill. On the 30th of March, 1818, the defendant, John Rogers, filed his answer, in which he states, that he entered into a partnership with Robert Henderson about the year 1807 or 1808, which con- tinued until the year 1811, when they failed; that he owes the plaintiffs, after deducting a small payment made to them, nearly six thousand dollars ; that a few days after the failure of the firm of Henderson &,' Rogers, he executed the deeds exhibited as parts of the bill, to Strike, in order to secure the property therein men- tioned for the benefit of the creditors of Henderson ^' Rogers, and of his own creditors, so as to save it from those who were the cre- ditors of Henderson before the partnership, and also in trust to preserve the surplus for himself and family ; that this was the understanding and agreement between him and Strike, who did not pay, or agree to pay any part of the money which was the nominal consideration of those deeds; that those deeds were entirely voluntary, and were not intended to operate as a sale, or to become such in any event, but were merely to remain as a trust ; for the property thus conveyed was worth at that time, much more than the consideration money expressed in the deeds, and he had been offered four thousand dollars for it by these plaintiffs ; that at the time he executed those deeds, neither he, nor the firm of Hen- derson ^ Rogers, owed any thing to Strike, nor were those convey- STRIKE'S CASE. 61 ances made in contemplation of future advances of money from Strike, although he afterwards received such advances from him : that in October 1812, he applied for the benefit of the insolvent laws, and obtained a release of his person, and Strike was appointed his trustee, as being already in possession of the principal part of his property, but he has not since applied for or obtained a final discharge ; that he himself continued to occupy one of the lots, on which there was a good dwellinghouse, about eighteen months after the date of the deeds, without any agreement, or even sug- gestion, on the part of Strike, of his being under any obligation to pay rent for it ; that the other lot, on which there w^as a small dwellinghouse, was rented, and he received the rent for his own use for more than eighteen months, after the date of the deeds, w'ithout any molestation from Strike ; that he, this defendant, con- stantly paid the ground-rent, taxes, and all other dues, incident to the ownership of those lots, during his residence in one of them, and for a long time afterwards ; that during that period he borrowed of Strike, from time to time, about seventeen hundred dollars, and laid it out in erecting a furnace on one of the lots which he car- ried on about two years and a half in conjunction with McArdle ^ Coulson, to whom Strike granted a lease of it for ten years, reserv- ing rent ; that by the persuasion of Strike, he gave up to him the lot on which he resided, and removed to another house nearer and more convenient to the furnace; that before he left his house, being much embarrassed in his affairs, on the persuasion of Strike, he consented to a colourable distress arid sale of his effects for rent ; but that he continued to hold possession of the property, which he used, and afterwards sold as his own, without any claim being made by Strike ; that about eighteen months after Sttike had taken possession of the lot so delivered to him, he made some improvements on it, an account of the expenses of which, as charged to this defendant, together with the sums advanced for erecting the furnace, and some other small sums, amounting to about three thousand dollars. Strike shewed to this defendant, and assured him, as he had often done on other occasions, that on the payment of the amount, the property should be reconveyed ; that this defendant afterwards tendered to Strike the whole amount, so claimed by him, and demanded a reconveyance of the property ; but Strike refused to comply. And finally, this defendant consents, that the property be sold and the })roceeds applied, under the direc- (52 STRIKE'S CASE. tion of the court, to the payment of his just debts, reserving the surplus to him and his family, &c. ' The plaintiffs having put in a general replication to those answers, a commission was issued to Carlisle in Pennsylvania, under which the deposition of one witness was taken, returned, and filed on the 23d of March 1819. Another commission w^as issued to take testimony in the city of Baltimore, under which the depositions of thirty-six witnesses were taken ; and among that number the depo- sition of the defendant Rogers was taken, under a special order of the court, subject to all just exceptions. This commission w^as closed on the 2d of April 1819 ; and soon after filed in court. Among the papers of this case there is a document marked as having been filed on the 15th April 1819, which is entitled in these words, " The answer of JYicholas Strike, of the city of Baltimore, to the petition of William McDonald, filed in Baltimore County Court against this defendant." There were sundry deeds and other docu- ments filed by the parties, as evidence in the case. From the proofs, thus collected, it appears that the claims and allegations of the plaintiffs, as set forth in their bill, were substantially and suffi- ciently sustained. 28th May, 1822. — Dorse v, Chief Judge. — The said cause being ready for hearing, and having been fully argued by complainants and defendants, the bill, answers, exhibits, testimony, and all other proceedings, were by the court read and considered ; and it being fully established to the satisfaction of the court, that the deeds of the sixteenth January, 1811, from the defendant Rogers to the defend- ant Strike, mentioned in the said proceedings, were executed for the purpose of defrauding the creditors of Rogers, and without bona fide consideration, — Decreed, that the said deeds be, and they are here- by declared null and void, as against the complainants in this cause. — Decreed also, that the property in said deeds contained be sold. T\\?ii Henry W. Rogers and Samuel Moale be, and they are hereby appointed trustees for the purpose of making said sale, &c. And the trustees shall bring into this court, the money, or securities for money, arising from said sale or sales, to be applied under the court's direction, after deducting the costs of this suit, and such commission to the trustees as the court shall think proper to allow, in consideration of the skill, attention and fidelity, wherewith they shall appear to have discharged their trust. All equities as to the distribution of the proceeds of sale, are reserved by the court for hear- STRIKE'S CASE. 63 ing, on the trustees^ report, on bringing into court tlie money or securities arising on the sale. Under this decree the trustees reported, that they had, on the 14th of September 1822, made a sale of the two lots, amounting to three thousand nine hundred and fifty dollars, which sale was finally ratified on the 10th of February 1823. 31s^ May, 1823. — Ward, Associate Judge. — Ordered, that this case be referred to the auditor of this court to be audited. The solicitors of the plaintiffs, by their petition, stated, that the plaintiffs had agreed to allow them, as a compensation for their services, a commission of twenty per cent, on the sum recovered, deducting therefrom fifty dollars from each which had been paid to them ; that they had so far conducted the cause successfully and with great care and labor ; that the court had ordered notice to be given to the other creditors of Rogers to exhibit their claims here for settlement ; and as the introduction of such other claims into this case might lead to some difficulty, they prayed the court to sanction the allowance of their claims, and to direct the auditor accordingly. 'dth JaniLary 1824. — Archer, Chief Judge. — Ordered, that the auditor, in stating the account with the trustees, allow to Henry W. Rogers and Henry M. Murray, solicitors for complainants, the sum of $690 as complete fees for conduct of the case, subject to the usual exceptions. It is stated, in the petition of the plaintiffs' solicitors, that the court had ordered notice to be given to the creditors of Rogers to exhibit their claims ; but there is no such order to be found among the papers. Yet it must be presumed, that such an order was passed and notice given, since it appears, that several of the creditors of Rogers did actually bring in the vouchers of their claims. And it appears, that the proceedings and schedule on the application of Rogers, for the benefit of the insolvent law, had also been filed. From all which, and the proofs in the case, the auditor, on the 6th April 1824, made and reported a distribution of the pro- ceeds of sale among thirteen of the creditors of Rogers, in which report the auditor says, that he had not noticed Stnke'^s claims ; because the whole of them appear to have proceeded from, and to have grown out of the first fraud between Strike and Rogers, and are not therefore entitled either to a preference or dividend. 64 STRIKE'S CASE. The plaintiffs excepted to tliis report, 1st. Because there is no evidence sufficient in law to support the various claims stated in said account, except the complainants' claim, filed or exhibited in the cause. 2d. Because the said claims, or the greater part of them, have been paid and satisfied — your exceptants particularly charge that the following claims, reported by the auditor, have been fully satisfied, viz: &c. and others which the exceptants will be pre- pared to prove as this court may direct. 3d. Because the whole of said claims are barred by the act of limitations, which your exceptants plead and rely on in bar of said claims. 4th. Because from the laches and neglect of the several parties, named in said account and report as creditors, to prosecute their several claims, they are not entitled to the aid of this court, or to come in for a proportion of said funds ; and have not applied to be let in for such distribution. 5th. Because said report and account are not in conformity with the evidence in the cause, or warranted by the principles of equity, and are in other respects erroneous. The defendant, Strike, excepted to the report of the auditor. 1st. Because the auditor hath not stated the claim of the said Strike w^hich is filed in the said cause, and the evidence which shows the veracity of the said claim sufficiently proved therein. 2d. Because the auditor in his report hath mistaken both the law and the fact relating to the said claim of the defendant Jficholas Strike. ^Ist January, 1825. — Ward, Associate Judge. — In this cause, upon motion of the complainants' solicitor, it is ordered and decreed, that it be referred to the auditor of this court, to state an account of the sums appearing due in this cause from the defendants, or either of them, to the plaintiffs ; and also to take an account from the proofs in the cause, or such other proofs as may be required by him of the rents and profits of the several premises contained in the deeds of 16th January 1811, from the defendant Rogers to tlie defendant Strike ; and also of the taxes and necessaiy repairs paid on the same by him ; and also such farther account as he may be directed to take by the said plaintiffs or defendants, and submit the same by report to this court, reserving farther consideration, &,c. On the 17th May 1825, the auditor reported, that since his for- mer report, the complainants had filed additional claims against Rogers, which were therewith stated. And the auditor further reports, that since the 13th February 1824, when lie stated an account between the estate of John Rogers and Henry W. Rogers and STRIKE'S CASE. 65 Samuel Moale, trustees of the said John Rogers, and made a statement of the claims against said John Rogers, (which said account and statement are tiled in this court,) the complainants in this case have filed additional claims against said Rogers, which are herewith stated. And the auditor further reports, that the claims of HolUngsworth 8f Worthington and Irv'me §* Beatty, contained in the aforegoing statement, have been withdrawn ; and that, except the schedule of John Rogers, there is no proof to establish any of the claims contained therein, but the claims of the complainants and of Robert Taylor. That the claim of the said Taylor is for a judgment rendered against Robert Henderson, the former partner of Rogers, at October term 1812, of Baltimore County Court, on a joint action with Rogers, w^hich said judgment ^vas revived against Henderson at March term 1821. The auditor further reports, that he has herewith made a statement of the rents received by Strike, and the sums expended in repairs done on the property in this cause mentioned, and in payment of taxes and ground-rents thereon, so far as he could collect the same from the papers in the cause. And further, that although he gave notice to the counsel of the com- plainants and defendants, to produce any further testimony which they might have, no additional testimony has been produced. The plaintiffs excepted to this report, 1st. For, that the auditor hath stated the claims of Strike, one of the defendantSj for materials, work, and repairs, made upon the dwelling-house inhabited by him, which were done for his accommodation, and not to benefit the property. 2d. For that the said expenses and repairs, were incurred by Strike under deeds w^hicli have been decreed by this court to have been obtained by Strike from Rogers, in fraud of the bona fide creditors of the firm of Henderson ^ Rogers, of which Rogers was a partner, and without consideration. 3d. For that the said auditor hath not charoed Strike with the difference between the prices bid by Strike at a public sale of the said i)ropcrty by the trustees, and the subsequent sale of the same, he having refused to comply with his purchases. 4th. That the said auditor hath reported the claims of Strike for repairs done to said property, although Strike has refused to pro- duce the bills of the persons who did the repairs, and has relied upon the conjectures of said persons as to their probable value after a long lapse of time. 5th. These complainants further except to the claim hitherto audited in the first report in favor of the Mechanics Bank of Balti- 9 66 STRIKE'S CASE. 'iiiore, because, the same is barred by the statute of limitations, the said claimants having laid by, without making any demand, until these complainants, believing themselves the sole creditors, had by their own exertions, and at their sole and great expense, succeeded in setting aside the deeds in this cause mentioned, when they have first presented their demand. 6th. For that the said report and statement is erroneous and defective in point of law and fact ; wherefore the said complainants beg leave to except to the same, and pray that the report and statement may not be confirmed by this court, but that the same may be remanded to the said auditor, or set aside and annulled. The defendant. Strike, excepted to this report, — 1st. For that the auditor hath not stated the entire claim of the said defendant Strike, and that said claim is not correctly stated from the evidence in the said cause. 2d. For that Strike claims the whole proceeds of the said sales of the said property mentioned in the said report, statement, and proceedings, in preference to all the other claimants in the said cause, and will contend that he is so entitled. 3d. For that the said report and statement is erroneous and defective in point of law and fact ; wherefore, the said defendant, Strike, begs leave to except to the same, and that the said report and statement may not be confirmed by this court ; but that the same may be remanded to the said auditor, or set aside and annulled. After which the plaintiffs, by their petition, founded on the pro- visions of the act of 1824, ch. 196, prayed, that the case might be removed to the High Court of Chancery, upon which it was so ordered ; and all the original proceedings were accordingly trans- mitted and filed here on the 15th day of June, 1825. The case having been here brought to a hearing upon the exceptions to the several reports of the auditor, and for further directions ; it was much and strongly insisted, on the part of the defendant. Strike, that under the concluding reservation of this decree, Avhich was altogether a new and peculiar one, every matter was now open for discussion and adjudication, but the simple circumstance of the sale of the property ; that this decree was entirely in the usual form, except the conclusion, which declares, that "all equities as to the distribution of the proceeds of sale are reserved by the court for hearing on the trustee's report, on bringing into court the money or securities arising on the sale." That by the addition of this peculiar clause, to be found in no similar STRIKE'S CASE. C7 decree, it must have been the intention of the court to reserve all the rights and equities of the parties for its consideration and adjustment after the sale had been made. lOth Aprilj 1826. — Bland, Chancellor. — This case has been A-ery elaborately argued, and is now presented to the court for the purpose of being finally closed. It appears to have been warmly contested in every stage. It has been partly decided, but there yet remains much to be judicially considered and determined. There is no principle, in relation to the administration of justice, which it is more important to preserve, or more necessary to adhere to, than that there must somewhere be an end to litigation. A matter which has been once solemnly decided, ought not, nor cannot be reheard and readjudicated ; controversy must have an end, or society could have no peace. Errors of an inferior tribunal may be corrected by a superior; and even the same court, under certain circumstances, will correct its own mistakes by motion, petition, or bill of review. But no court of justice can allow itself to be engaged in the endless task of weaving and unweaving; of pro- gressing to an adjudication, and then going back to readjudicate. Hence, whatever has been heretofore determined in this cause must now be considered as finally settled, and in every respect unalterable, except by bill of review, appeal, or in the regular course of law. (o) This does not seem to have been directly controverted in the argu- ment ; but the counsel differ widely as to the nature of the decree of May, 1822, and as to how far it extends over the matter of this suit; and somc'argumehts have been urged which, if yielded to, might lead the court unwarily to trench upon the confines of that decree. The first inquiry, therefore, is, how much of this case yet remains to be judicially passed upon. This case was originated on the equity side of Baltimore County Court, and has been removed into this court according to the act of assembly authorizing such removals. It stands here now as it would have stood had it continued there, or as if it had been begun and instituted here, and these proceedings are to be so considered. They have not been affected by any mere circumstance of place or tribunal, but are here as if they had all passed under, and been sanctioned by the judicial authority of the present Chancellor, and will be treated accordingly. The complainants came into court as the creditors of Henderson ^ Rogersj of both and each of them. The plaintiffs complain. (a) Attorney General i'. Bowyer, 3 Vcs. 725. 68 STRIKE'S CASE. that their debt has not been paid; and they are here seeking payment. To enable this tribunal to give them the relief they ask ; and which cannot be obtained without the aid of its peculiar powers; they point to certain property which, they allege, was once confessedly, and ought now, in reality, to be within their legal reach, and subject to the payment of their claim. They allege, that this property, which was at one time held by, and in the name of their debtor, Rogers, has been, and is now iniquitously covered up, and withdrawn from their grasp, by certain deeds of conveyance made by their debtor, Rogers, to a certain JYicholas Strike; they pray, that this cover, and these impediments, may be removed; that the property may be sold; that the rents and profits of it may be accounted for; and that the proceeds may be applied in satisfaction of their claim. These plaintiffs then call on Rogers and Strike, as. defendants, to meet and repel these allegations, if they can. Rogers appears, and admits, that he is the debtor of the plain- tiffs, and that he conveyed the property in question to Strike ; but denies that it was done with any fraudulent design; on the contrary he avers, that those conveyances to Strike were made by him in, trust for, and the better to secure the payment of all his just debts. Strike comes in, and boldly takes his stand in direct and total opposition to the plaintiffs. He avers, and undertakes to maintain and prove, that he acquired the property in question for a full and valuable consideration, and that he has a right to claim protection here, as a fair and bona fide purchaser. He plants himself upon the honesty of his title, and claims nothing by his answer, which should not be conceded to a defendant who fully sustains such a defence as he has set forth. In application to this claim and defence, proofs have been collected, and the case has been submitted to the decision of a competent tribunal, who, in May 1822, declared and decreed, that the conveyances from Rogers to Strike were " null and void as against the complainants ;" that the property in question should be sold; that the proceeds be brought in "to be applied under the court's direction," and concluding with a declaration, that " all equities, as to the distribution of the proceeds of sale, are reserved by the court for hearing," on their being brought in. It is held to be a first principle, by every court of justice, that no one can ask for its determination without showing a sufficient ground for its decision. Before a 2)laintiff can call for a determina- tion in his flivour, he must furnish the court with a basis whereon STRIKE'S CASE. 69 to rest its judgment. In tliis case, the validity and sufficiency of the plaintiff's claim, are the veiy foundations of the decree ; without that claim having been proved or admitted, no such decree ought, or could have been rightfully made. It does, therefore, necessarily and conclusively establish the plaintiff's claim ; and consequently, that claim cannot now, in this stage of this cause, be again, in any manner, put in controversy. This is the first point settled by this decree. The decree then proceeds to remove obstructions, and to grant facilities. The deeds, which are the impediments complained of, are declared to be null and void ; or, in other words, as between the plaintiffs and defendants, they are totally annihilated. Whatever validity or operation they may be permitted to have, as between Rogers and Strike, they can have none at all, "as against the complainants." In relation to them, this property is to be dealt with as if those deeds had never existed. This is the second point settled by this decree. But it would have come to a most lame and impotent conclusion had it stopped here; therefore, after having determined, that the plaintiffs had a claim, which ought to be satisfied ; and, that they had a right to have recourse to this property, it goes on to declare, that the property shall be sold, and the proceeds brought in to be paid over as the court should direct. And this is the third point settled by this decree. So far, then, the matters in controversy between these parties have been finally closed ; and this decree must be regarded, as all others of a similar nature have been, as a final decree ; one in which all the material rights of the parties have been considered and adjudicated upon. But the decree speaks of further directions, and of equities reserved ; and it has omitted to say any thing of certain incidents to those rights which it had finally settled. As to all these parti- culars this decree yet remains to be fulfilled and executed. When a case, circumstanced like this, is brought before the court, it is spoken of as a case for further directions ; and this phrase is used in reference to all cases, where, after the final decree, as in this instance, a further and eventual interposition of the court becomes necessary, to follow out and complete the equity, the substance of which has been established by the final decree. These further directions are spoken of in this decree, and in all similar decrees of this court, and of the English Court of Chancery ; but in giving them, tlie court miust act consistently with itself j and in 70 STRIKE'S CASE. this instance, where the decree speaks of" the court's directions," and of all equities being reserved, its phraseology must be made compatible in all its parts. The reservation of all equities must not be used to fritter away, and to abnegate the substance of any mat- ter, which had been, in a previous part of the decree, carefully and solemnly decided. No directions, therefore, will or can now be given, which are incompatible, with the points settled by the decree. It is now brought before the court to be executed and completed, not in any manner to be revised or impaired. (Z>) The decree of May, 1822, is founded upon the existence of a debt due to the plaintiffs ; but it does not specify the exact amount, nor does it say any thing of the interest thereon. Interest, in equity, is held to be something more than a mere incident ; it is the production, the fruit of the money due. In this case these creditors may now call for directions as to these particulars. An exact estimate of their claim could not, with propriety, have been made until after the sale of the property decreed to be liable for its payment ; because, according to the course of the court in such cases as this, where the proceeds are insufficient to pay all, the interest is to be calculated only up to the day of sale. This, then, is the first point left open by this decree ; but it is a matter which may be reduced to a certainty by the calculation of the auditor, to be made according to established principles, from the proofs in the cause ; any further special directions in this instance, therefore, are deemed wholly unnecessary. In this case, the bill expressly prays, that the defendants may be ordered to account for the rents and profits of the property in question. The decree has determined, that it w^as unlawfully detained, by declaring the deeds, under which it was held, null and void. It follows, therefore, as a consequence of this deci- sion, that an account of the rents and profits should now be ordered, and tJiat directions should be given, as to the time for which the account is to be taken, and as to the manner of taking it. This is the second point left open by this decree ; and, as to which the Chancellor will now give directions. The decree totally annuls the deeds under which Strike claims, without retaining them as a security for any thing. He can now, therefore, claim nothing whatever under them as against the com- plainants. But if, under all the circumstances of this case, apart (6) The Santa Maria, 10 Wheat. 442. STRIKE'S CASE. 71 from those deeds, and compatibly with the matters decided by the decree, he can show any equitable claim to an allowance for improvements he put upon the property in question, while it remained in his possession or under his control, the court may now give directions concerning such an allowance. This is the third point left open by the decree, and upon which the Chancellor will now decide. This is one of those cases, in which one creditor is allowed to file a bill for the purpose of subjecting the property of his debtor to the payment of his own claim ; and of all others, who may obtain permission to come in and participate in the burthens and the benefits. The other creditors are allowed to come in at any time, either before or, after the decree; and it is most usual and proper, that the decree itself should command the trustee to give notice, at the time of advertising the property for sale, to all cre- ditors to bring in their claims with the vouchers. This is the fourth point w^hich has been left open in this, as in all other decrees of the kind. The further directions as to claims which may be thus brought in, comprehends every thing concerning them. As to. all matters of this nature, so far as may be deemed necessary in this case, the Chancellor will now give directions. It is said to be an established rule of the Roman law, and that of almost all modern nations, that the true proprietor shall not recover from the bona fide possessor, any rents and profits which have been consumed by him. But whatever fruits and profits, whether natural or industrial, such as trees standing or felled ; grain growing, and the like, which remain upon the land at the time the true proprietor established his right, belong to him, and may be recovered from such possessor, as well as the land itself. Yet, as it would seem, if it can be ascertained, that the bona fide possessor was not merely maintained by the rents and profits ; but was actually enriched by them, as by applying them to the pay- ment of his debts, he will be held accountable to that amount to the rigliful proprietor. But this general exemption is not granted to ^im, who, knowingly, keeps possession of another's estate, and therefore he is compellable to account for all the mesne profits he has derived from the land prior to its being recovered from him.(c) According to the common law of England, the real owner may recover the rents and profits from the tenant, whether they remain (c) Karnes' Prin. Eq. b. 3, c. 1 ; Just. Inst. 1. 2, tit. 1, s. 35. 72 STRIKE'S CASE. upon the land or have been consumed by him or not ; nor does the occupying tenant's knowing any thing of his adversary's title make any difference, as to the nature and extent of his liability for rents and profits. At common law, no damages were recovered in any real action ; because, as it was said, until the right to the land was determined, the party could not be said to suffer any wrong. But it seems to have been considered as well established law, from a very remote period, that the right to maintain an action of trespass for the recovery of the mesne profits, followed as a clear and neces- sary consequence of the party^s having established his right to the land itself. And it appears to be somewhat singular, that, during the period when real actions were much in use, the legislature should have deemed it necessary to interpose, for the purpose of allowing, by positive provision, the demandant, in many of them, to recover damages, or rents and profits; and yet, that those real actions, so amended and improved, should have been superseded by the action of ejectment, in w^hich, as it now seems to be settled, nothing is recovered but the land, and the party is left, as at com- mon law, to recover the mesne profits in a separate action of tres- pass. But the right to recover the mesne profits by way of damages in the modern action of ejectment itself, is recognised by an English statute, passed in the year 1664, and the practice of so recovering them, seems to have prevailed for some time in England^ and also in this State. (d) As early as the year 1667, in a case w^here lands were settled for the payment of debts, the trustees w'ere held accountable in equity for the rents and profits to the creditors for whom they w^ere received ; and in 1685, it was held, by the Court of Chancer}', that he who took the mesne profits by wrong, was considered as trustee for, and accountable to him who had the right ; and thence- forward the Court of Chanceiy made all persons account for the mesne profits they had received, to such persons as had the equita- ble title. And it is now settled, that W'here there is a serious difficulty in recovering at law, fraud, concealment, or the like, or where the title is merely equitable, the party may recover the re,nts and profits in equity, (e) But in chancery, as in the courts of common law, there seems to have been always a strong disposition {d) 2 Bac. Abr. tit. Ejectment, H. ; 16 & 17 Cai-. 2, c. 8 ; Goodtitler. Tombs, 3 VVils. 120; Lewis v. Beale, 1 H. St McH. 1S5 ; Joan St McCubbin r. Shields, 3 H. &. McH. 7; Gorc'.s Lessee v. Wortliington, 3 H. J<. McH. 96.— (c) Norton v. Freclier, 1 Atk. 525. STRIKE'S CASE 73 to keep the adjudication upon the title entirely apart from the direc- tion as to the mesne profits. It is not improper that the final decree, settling the right to the property, should also go on and decree an account for the rents and profits ; but it is usual, where the property is sold, as in this case, to leave the account of the rents and profits to be provided fi)r in the subsequent and further directions, (y) Where the party has no equitable ground of relief, and is under the necessity of proceeding at law, by an action of trespass for the recovery of the niesne profits, the tenant or defendant, by pleading the statute of limitations, may prevent the plaintiff from carrying his claim in all cases, as far back as the commencement of his title, and the wrong he has suffered. And should he proceed in equity, if there has been a mere adverse possession without fraud or con- cealment, the account will be taken only from the time of filing the bill, for it was his own fault not to have filed it sooner. But where the bill is brought upon an equitable title, and there is a trust ; and in the case of an infant, or where there has been any fraud ; and in cases of dower, an account of the rents and profits will be ordered, and that from the time the title accrued, (g*) In an action of trespass for mesne profits, they'arfe assessed at the discretion of the jury in damages, and therefore governed by no settled rule as to the amount. The jury may, if they think the circumstances of fraud and wrong warrant, or require it, give large and vindictive damages, even as much as four times the value of the mesne profits ;( A) or, on the other hand, they may mitigate the damages down almost to nothing ; and it does not appear, that their unlimited discretion, in this respect, has ever been materially controlled by granting new trials. The Court of Chancery is more steady in its principles, with regard to the amount of the mesne profits. If the occupant is tlie mere rightful holder of the property as a pledge ;■ for example, as mortgagee who has been let into possession, he is held accountable for no more than he has actually received, what has really come into his hands, and not for the full value, or what he might.have made by skilful and proper manage- ment. But where' the occupant is a wrongful holder, or has obtained pcassession, and has held it fraudulently, or where, there (/) 1 Bac. Abr. tit. Accompt, B. ; 2 Bac. Abr. tit. Dama2;cs ; Shish. v. Foster, 1 Ves. 88; Dormer v. Fortescue, :i Atlc. 124; Piiltcny t'. Warren, 6 Ves. 73.— (g) Dormer v. Fortescue, 3 Atk. 121 ; Pultcny v. Warren, 6 Ves. 73.— (/<) GooJtitle V. Tombs, 3 Wils. 118. 10 74 STRIKE'S CASE. being several incumbrances, the first mortgagee uses his security for the purpose of shielding the debtor from the junior mortgagees ; in such cases, such a fraudulent or wrongfully occupying tenant, or an incumbrancer who makes such an ill use of his security, will be charged with the full value ; that is, with such an amount of rents and profits as a skilful and diligent tenant might have made from the land.(7") In this case, Strike informs us in his answer, that he obtained possession of the property in question, (the one lot actually, and the other legally, as landlord of Rogers, on whose property he levied a distress for rent in arrear,) under and by virtue of the deeds from Rogers to him, on the date of them, and that he took and received the whole rents and profits. Those deeds have been declared null and void by the decree of May 1822, as against the complainants, on the ground, of fraud. It appears, then, that Strike obtained possession of the property in question, fraudu- lently ; that he used those deeds against these creditors, and that he wrongfully held the possession, and received the whole of the rents and profits from the date of those deeds ; consequently, according to the principles of equity, by which this court is governed, and I may venture to add, by the law of all civilized nations, in relation to rents and profits, Stnke must be charged with the full value of the property in question, from the date of the deeds, down to the date of the sale, when he was turned out of possession. In relation to the improvements, for which Strike claims an allowance, one would suppose, that in the administration of a system of jurisprudence in a civilized society, there could be no flux and reflux of the principles of justice ; that however they might be altered or reformed, they could never, for any length of time, drop into disuse and then be called up again, and generally applied. But it would seem there is a fluctuation, perhaps indeed a mere change of fashion as to principles of law, as in every thing else.( j) It does not appear from any thing I can learn, that the doctrine, in relation to an allowance to the occupying tenant for ameliorations, except as to mortgagees in possession, has ever for a great length of time past, and until very recently, beej^ presented to the consideration of a court of justice in this State as a subject of controversy ; and, perhaps, never before so urged and investigated ( j) Powell, Mortg. 292, n. — {j) " The law sometimes sleeps, and judgment awakens it ; for, donnil aliquando lex morilur nunquam." Mary Portington's case, 10 Co. 42. STRIKE'S CASE. 75 as it has been upon this occasion. (/c) The principles of law, in relation to this matter, belong to our code, but until lately, they (k) Quynn v. Staines, 3 H. & McH. 12S ; Ford v. Philpol, 5 H. & J. 312 ; and Raw- lings V. Stewart, ante, 22. Rawlings v. Carroll. — This bill was filed on the 13th of October, 1730, by Aaron Rawlings, against Charles Carroll, Esq., Dr. Charles Carroll, John Digges, and Francis Hall, executors of James Carroll, deceased. The bill states, that in the year 1716, the plaintiff contracted to purchase of the testator, James Carroll, a ti-act of land called Forest Farm, for which he agreed to pay one hundred pounds sterling, in two equal payments at the time specified ; that the late James Carroll gave to the plaintiff a bond, conditioned for the conveyance of the land, on the payment of the purchase money, and the plaintiff gave to him his bond for the payment of the purchase money at the times agreed upon ; that ailerwards, James Carroll made his will, in which he appointed these defendants his executors, and soon after died, without having conveyed the lands to the plaintiif according to the terms of his contract ; although the plaintiif had always been, and then was, ready and willing, thereupon to pay the purchase money ; and that the defendants had brought suit on the bond given by the plaintiff lor the purchase money, and v/ere about to enforce payment. Whereupon, the bill prayed, that the defendants might be directed tq convey the lands to him as stipulated by tlieir testator; and that they might until then be enjoined from proceeding at law The injunction was granted, and issued accordingly. The two Carrolls filed their answer, in which they admit the contract as stated, and that they had brought suit on the bond for the purchase money. But they aver, that their testator, according to the terms of his contract, had made a conveyance of the land to the plaintiif, as appeared by copies of the deed and a receipt fox it given by the plaintiff, which they then exhibited with their answer ; that they were the principal and only acting executors ; that the defendant, Digges, had meddled very little with the estate, and the defendant Hall, had renounced the executorship. To this answer the plaintiff put in a general replication. A commission wa.s issued, under which testimony was taken and returned ; after wliich the case was set down for final hearing. May Term, 1736. — This cause coming to be heard before his excellency Samvel Os^le, esquire, chancellor and keeper of the great seal, in presence of the counsel on both sides, the complainant's bill, and the defendants' answer, and the whole pro- ceedings thereon were read, and appeared to be as before set forth. Whereupon, and upon hearing the bill and answer, and the proofs taken in the cause read, and what was offered by counsel on both sides, this court doth think fit, and declare, that the defendants procure a conveyance from the heir at law of tlie testator, agreeable to the conveyance which the complainant received from the tes- tator, and gave his receipt for, or procure an act of assembly to confinn that said deed, or such another, on or before the day of April ; and that, upon the exe- cution of such deed by the heir, or confirmation of such deed by act of assembly, the complainant pay the consideration money, and the interest thereof, from the date of the complainant's bond, mentioned in the bill of complaint ; and in case such deed cannot be had from the heir at law, or that an act of assembly cannot b'fe pro- cured for confirming such a deed as- herein before mentioned, that the complainant pay only the interest of the purchase money from the date of his bond, as a recom- pense for the use of the land ; and, that the judgmeht at law, and the injunction bond be deemed to be, and stand as security for the principal money and interest in case a 76 STRIKE'S CASE. have been suffered to lie unnoticed among those rarely used regu- lations, which are seldom examined but by the curious. In a neighbouring State, so far back as the year 1643, it seems to have been deemed expedient to place upon its statute book, all the rules in relation to compensation for improvement, made upon the land by one man, the title of which was in another. (Z) Yet upon a recent occasion, when a judicial decision was called for upon the occupying claimants law of Kentucky^ involving matters which in a greater or less degree attracted the attention of the whole Union, it was found that those legislative provisions had disappeared from the revised statute book of that State, and it required some care to ascertain distinctly what was then its law upon the subject. (7?i) It seems to be a sound and a very generally admitted principle of justice, that no man shall be allowed to enrich himself from the losses of another ; or, as it is expressed in the Roman law, nemo debet locupletari aliena jadura. The moral force of this rule, in all cases to which it applies, and as between parties alike fair and in- nocent, appears to have been considered as altogether irresistible. In all cases in which the court is called on to apply this rule, it is title be made to the complainant as already mentioned ; and if no such title shall be made, then the judgment at law, and injunction bond to' stand as securit)' for the interest of the money only. The defendants in this cause having declared in court, that they applied to the last assembly for an act to confirm the deed, mentioned in the former decretal order made in this cause, but could not obtain such act ; and that the heir at law is a minor, and will not attain his full age ia several years, so that tliey have no means in tlieir power to procure such a conveyance as is mentioned in the said order ; therefore, they pray his excellency the chancellor's further order therein. 77(6 chancellor having heard council on botli sides, and taking Uie same into his consideration, doth tliink fit to order, tliat the injunction be made perpetual in this cause, in case the complainant shall pay the interest for the purchase money from the date of his bond, mentioned in the proceedings, and deliver up the possession of Uic land to the defendants, which are to be complied with by the last day of October next, with liberty to the complainant to finish his crop of all kinds on tlie said land, and remove hi* said crop and cattle therefrom ; or that the injunction be dissolved. And further, it is ordered, that a reasonable allowance be made to the complainant, by the defendants, for any imprpvemcnts which the complainant has made on the said land, and which may be useful and beneficial to any person who may, or shall herealler have possession thereof. And also, that the complainant pay and satisfy to the defendants for any waste committed by the complainant on the said land, beyond what might have been proper in the use and working thereof, by the com- plainant, during tiie time of his possession thereof. — Chanc. Proc. Lib. I. R. No. 2, fol. 750. (0 1 Hen. Virg. Stat. 260, 349, -443 ; 2 Hen. Virg. Stat. m.—{m) Green r. Biddlc, 8 Wheat. 1, and Appendix, 1. STRIKE'S CASE. 77 essential that it should most clearly and distinctly appear, that he who claims an allowance for hi* losses, in the shape of compensa- tion for improvements, should be entirely and absolutely free from all blame ; because equity never interferes in favour of a wrong- doer. In cases where a bona fide possessor of property, one who is ignorant of all the facts and circumstances relating to his adver- sary's title, under a confident apprehension and belief, that he was himself the true o^vner, proceeds to make improvements, and increase the value of the subject so held, it seems to have been almost universally admitted, that an allowance for such increased value should be made, at least to th,e extent of the rents and. pro- fits. According to the Roman law, such a claim for improverhents may be extended to their full value, beyond the amount of the rents and profits as against the improved subject itself. (w) And so, too, according to the marine law, an account for meliorations is made, if necessary, even beyond the profits ; and for ascertaining the amount, the rule is to consider the quantum of the improved state in which the ship comes into the hands of the original proprietors ; for as to that part, it is not a restitution to them, but a new acqui- sition. (0) But according to the English principles of equity, if the true owner insists on an account of rents and profits, as he may, not according to the value when the purchaser entered, but accord- ing to the present value, the court will order an allowance to be made for repairs and improvements. (^) But where a man has acted fraudulently, and is conscious of a defect in his title, or has bought a title notoriously bad at the time of the purchase, in such a case, as 2i mala fide possessor, he is per- mitted by no law to make any claim whatever for improvements ; he must take the consequences of his ovtoi imprudence. By the Roman law it is declared, that if a man build with his own mate- rials upon the ground of another, the edifice becomes the property of him to whom the ground belongs, because the owner of the ma- terials is understood to have made a voluntary alienation of them, if he knew he was building upon another's land ; and by the com- mon law it is in general true, that where a tenant aflSxes any thing (n) Dormer v. Fortescue, 3 Atk. 134; Pow. Mort. by Coven. 313, n. 0; Kames' Pri.,Eq. b. 1, p. 1, s. 3 ; b. 3, c. 1 ; Just. Inst. 1. 2, tit. 1, s. 29, & notes ; Sug. V. & P. 52.5 ; Savage r. Taylor, Fors. 234 ; Deane v. Izard, 1 Vern. 159 ; Shine v. Gough, 1 Ball & B. 444 ; Hardcastle v. Shafto, 1 Anstr. 1S5 ; Attorney General v. Ballol Coll. 9 Mod. 411 ; Webb i'. Rorke, 2 Scho. &. Lefr. 676.— (0) The Perseverance, 2 Rob. 239; The Eerlighett, 3 Rob. 101; Nostra de Conceicas^ 5 Rob. 294.— (p) Sugd. V. & P. 525. 78 STRIKE'S CASE. to the freehold, he does thereby immediately vest it in the free- holder, so entirely, that it would be waste, in the tenant, afterwards to remove ii',{q) and so it has been held, in the English court of admiralty, that if a person buys a ship, the title to which is noto- riously invalid, it must be at his own peril that he proceeds to lay out money in repairing and improving her, as no allowance for ameliorations will be made in such case.(r) In the argument of Coidter''s case,(s) among other things, it is said, " in divers cases, one who is in of his own wrong, shall recoupe and retain, &c. He who hath a rent of j£10 issuing out of certain lands, disseises the tenant of the land, in an assise brought by the disseisee, the disseisor shall recoupe the rent in the damages ; so that where the mesne profits of the land, in such case, were of the value of jei3, the disseisee shall recover but £3. The disseisor shall recoupe all in damages which he hath expended in amending the houses." And as an authority in support of the last position, a case is cited as far back as the year 1340. This argument is adduced in a case in which the only question was, whether an executor de son tort could retain. The court in their opinion held that he clearly could not, assigning the most satisfactory reasons ; and they then go on to say, that " as to the case of recouper in damages in the case of rent-service, charge, or seek, it was resolved, that the reason of recouper in such case is, because otherwise when the disseisee re-enters, the arrearages of the rent-service, charge, or seek, would be revived ; and therefore to avoid circuity of action, and circuitus est evitandus et honi judicis est lites dirimere, ne lis ex lite onafur, the arrearages during the disseisin shall be recouped in damages ; but if the disseisor ought to have common on the land, the value of the common shall not be recouped, for by the regress of the disseisee, he should not have any arrearages or re- compense for them."(<) The court take no notice of the position advanced in the argument, that " the disseisor shall recoupe all in damages which he hath expended in amending of the houses," and assign a reason for allowing the recouper in the other instances put, that is utterly incompatible with allowing a disseisor or mala fide possessor, to recoupe what he had expended in mending the houses, and therefore the position cannot be admitted to be sound law, to the full extent for which it was advanced, if at all. (7) Am. & Fer. Law Fix. 14, 241.— (r) Just. Inst. b. 2, tit. 1, s. .30; Nostra de Conceicas, 5 Rob. 294.— (•■?) 5 Co. 30.— (0 Green v. Biddle, 8 Wheat. SI. STRIKE'S CASE. 79 The term recoupe in the common law, signifies the keeping back or stopping something which is due, and is used for " to defalk, or to discount ;" of which Coulter'' s case furnishes an illustration. It is from the common law doctrine of recouper that our legislative provisions for " pleading discount, "(li) and the English statutes of set-off, about half a century later, have been derived, (v) They all rest upon precisely the same principles. The object is to prevent cross actions, or, as the books express it, circuity of action ; and to allow the opposing claims of the same parties to be settled in one action, which must otherwise necessarily give rise to two actions ; but however reasonable and desirable it may be, thus to put an end to two subjects of litigation in one and the same suit, yet, as it ap- pears from Coulter^s case, no man shaU be allowed to obtain this advantage by his own wrong ; and therefore it is, that an executor of his own wrong will not be allowed to recoupe and retain. Every claim, however, must have a fair, legal, or equitable basis, whether presented to the court as the cause of an original action, or by way of recouper, discount or set-ofF. The claim for rents and profits, and the opposing claim for improvements, each of them rests upon principles of law and equity that are wholly separate and dis- tinct. Whether or not the proprietor shall recover rents and profits must, in each case, depend upon the justice and equity with which he sustains his claim. If he has, for an unreasonable time, slept upon his rights, and there should appear to be any suspicious cir- cumstances about his case, or any discoverable infirmity in it, the court will lessen, or altogether reject the claim. So, on the other hand, he who presents a claim for ameliorations, must, in like man- ner, show, that it is sustainable on its own independent, substan- tial, and fair principles of equity ; as it stands exhibited before the court, it must appear in all respects unsullied by wrong or decep- tion ; it must have no taint of fraud about it ; — if it has, it cannot be allowed. Such claims as these for rents and profits, and for ameliorations, may very often present themselves in a court of equity in opposi- tion to each other ; and be set up by litigating parties, by way of recoui>er, discount or set-ofF, the one against the other. But if, as in the case of an executor de son tort, a man shall not be permitted to take advantage of his own wrong, even so far as to place him- (w) 1654, ch. 23 ; 1699, ch. 39 ; 1715, ch. 29; 1729, ch. 20, s. 5 ; 1735, ch. 46, s. 7. Baltimore Insii. Comp. v. M'Fadon, 4 H. &. J. 42; Brack. Law Misc. 185.— (v) 2 Geo. 2, c. 22, s. 13 ; Just. Inst. b. 4, tit. 6, s. 30. 80 STRIKE'S CASE. self in a situation to recoupc a just and equitable claim, most cer- tainly the law would not endure a wrong-doer to oppose a fair claim, in any degree whatever, by one which had originated, and was wholly founded in his own wTong. Hence it is that a Tnala fide possessor can, in no case, nor under any circumstances, be allowed any thing for improvements, either beyond or even to the amount of the rents and profits. A different rule, as has been justly observed, would place it in the power of the wrongful pos- sessor, to improve the right owner out of his estate. Yet it is said, that where the sums are large, the peculiar circumstances of the case may influence the court in directing the account to be taken from the filing of the bill only, and not from the time of taking possession. (t«) Now how stands the case under consideration in reference to this claim for improvements ? The bill charges, that Rogers con- veyed the property in question to Strike, for the purpose of avoid- ing the payment of Rogers^ creditors ; Strike answers and denies the charge, and avers, that the conveyances to him were absolute, fair, and for a valuable consideration, and that he is the bona fide purchaser and holder of the property. But the court, by the decree of May, 18.22, has declared those conveyances to be null and void, as against the complainants, and directed the property to be sold for their benefit. Hence it clearly appears, that Strike now stands before this court convicted and condemned as a fraudulent and mala fide purchaser and holder of the property. He,, one of the very contrivers, and a party to the fraud, claims an allowance for im- provements on the property so obtained and held. Such a claim, it is believed, was., never sanctioned by a court of justice, in any country or at any time. According to all law, and every principle of equity, this claim for improvements of every description, must be totally and absolutely rejected. Strikers claim for repairs and improvements has been thus dis- posed of, -on general principles. But it is alleged he has another and special foundation for his claim for ameliorations and advances, under the concluding sentence of tlie decree of May, 1822. But, that decree has declared the deeds from Rogers to Strike " null and void as against the complainants ;" it has retained them as a secu- rity for nothing, and in no respect whatever. The several parts of ■ that decree must be made to harmonize one with anotliea-. Those deeds which have been so totally annulled, as against the com- (w) Sugd. V. & P 526, STRIKE'S CASE. gj pkunants, cannot, therefore, consistently with that decree, be allow- ed to stand as mortgages against them, to secure to Strike either the amount of the improvements, or the advances in money he has made to Rogers. Upon that gi'ound Strike cannot stand, because it is completely covered by the decree. This being the decided opinion of the Chancellor, he might deem it unnecessaiy to notice that class of cases which speak of allowances for improvements and advances made by actual mortgagees, or by those pseudo pur- chasers of young heirs and others, whose conveyances are allowed by special favour, to stand and be considered as of the nature of mere mortgages. Yet from the manner in v\^hich those cases have been pressed forward, some further reasons, showing why they are inapplicable to this case, may be expected. In this case it must be distinctly and constantly recollected, that Strike now claims reimbursement for his improvements and ad- vances, not of Rogers, but out of the proceeds of the property in question, and against the creditors of Rogers, w^ho ai'e here as the complainants. All those cases of mortgages and pseudo purchases, are governed alike by the same principles of equity. A separate examination of each of them will therefore be entirely unnecessary. In all, the bill is brought by the grantor against the grantee, or between parties who stand precisely in that relation to each other, to redeem the mortgaged property, or to set aside a conveyance which had been improperly or fraudulently obtained. And on the case being made out by the proofs, the tribunal has unilbrmly an- swered to him who asked the relief, "you must do equity before you shall obtain equity. It is true, you have been imposed upon and defrauded — but it is no less true, that yoa have been partially and in some degree benefitted ; you have received money from your opponent ; he has permanently enhanced the value of your estate ; refund the money you have received, pay for the increased value of your estate, and it shall be restored to you ; the conveyances of which you complain shall be annulled ; until then they shall stand as a security for those improvements and advances.'' Such is the language of the Chancellor in those cases where he acts under the influence of the maxim, that he who asks equity must do equity ; and this maxim is sanctioned and illustrated by an almost endless variety of cases to be found in the books. But the application of this maxim in these cases, and for the most part, depends not only upon the immediate relationship be- tween the parties of grantor and grantee, but also, almost always, 11 82 STRIKE'S CASE. upon the vendee's being brought before the court by the vendor ; that is, the contracting party injured as plaintiff, against the party injuring as defendant. A few examples will sufficiently illustrate this position : The plaintiff came to be relieved against the penalty of a bond ; the ground of equity was established by the proofs, and the relief was decreed, but not without the payment of princi- pal and interest, even although it exceeded the penalty of the bond. (2:) But where lands were devised for the payment of debts, and there was a bond debt, the interest of which had outran the penalty, yet the creditor, on a bill filed by him, was allowed to re- cover no more than the penalty. In the first case the creditor was sustained by this maxim of equity ; in the second, his case rested barely on his own contract. Again, the plaintiff for ninety pounds lent, fraudulently obtained a bond for eight hundred pounds, on which he obtained a judgment, and the object of the bill was to have certain lands subjected to the plaintiff's satisfaction in equity. But the court would not give him any relief, not so much as for the principal he had really lent, and dismissed his bill. If, however, the defendant in this case, had come in to set aside the judgment for fraud, equity would have obliged him to pay the ninety pounds really lent. This case is also illustrative of another maxim, that he who has committed iniquity shall not have equity. (3/) Now in order to bring these cases, and the principle they illus- trate, fully to bear upon the case under consideration, it must appear, that the complainants not only claim under Rogers ; but, that they stand here, in all respects, as he would have stood ; and that they ask to have these deeds vacated upon the same grounds, that he could have made a similar prayer. But the case now before the court is of a totally different nature. Rogers himself is here as a defendant, charged as a particeps fraudis, and relief is prayed by these complainants against him as well as against Strike. The present creditors do certainly claim this property under Rogers ; and it is also true, that they can only take it, subject to all fair, legal and equitable liens with which Rogers may have incumbered it, antecedent and superior to their claims. But, as against Strike, these plaintiffs are to be considered as purchasers of the most favoured and meritorious class, holding by a prior and superior title. The improvements and the advances for the ground rent, the Pratt- street assessment, and the taxes alleged to have been made and (.r) Fran. Max. 4. note ; 2 Ev. Poth. Obi. SS).— (y) Fran. Max. S. STRIKE'S CASE. S3 paid by Strike, give Lim no lien upon the property itself against the rightful owner, either Rogers, these creditors, or any one else. But if Rogers had come here to be relieved against the fraud prac- tised on him by Strike, and to have the property restored to him, the court would have granted him relief only upon condition of his reimbursing Strike for all his improvements and advances, because they enured to the use and benefit of Rogers. But no equitable principle of that sort can be urged against the complainants. They are here as creditors, praying to be relieved against a fraud con- trived between Rogers and Strike. But, admitting all this. It is alleged, that, independently of the vacated deeds and of the decree, Strike has a claim, as a kind of salvor of tliis property, which ought to be allowed. It is said he has saved it from the hands of the ground landlord, by paying the ground-rent; he has saved it from the grasp of the Pratt-street commissioners, by paying the assessment levied upon it ; and he has saved it from the power of the State, by paying the taxes. He maintains, that he has a right to assume the place, and to be sub- stituted for those claimants, and he founds this claim upon the doc- trine of substitution. But Strike, as regards these complainants, was an uninvited officious mala fide meddler with property which he knew did not belong to him, and which he was apprised ought to be liable to the claims of Rogers^ creditors. He made these ad- vances to serve himself, not for the benefit of these complainants ; and if he had an intention, that these advances should enure to the personal benefit of any one, it must have been to Rogers ; because it was from him he took the estate ; and if the conveyances were to be annulled, it was only against him he could seek reimbursement. (c) Strike, therefore, cannot have, against these complainants, any sha- dow of countervailing equity on which to rest his claim for these advances, out of the proceeds directed to be brought into court. Having discussed the liabilities and pretensions of the defend- ants, let us now consider the interests of the complainants among themselves. This is what is commonly called a creditors' bill ; and where two or more creditors bring such a bill, or others come in afterwards, the adjustment of their rights and interests, in rela- tion to each other, and the objections which the defendants may make against those who have come in, after the institution of the suit, most generally remain to be considered and decided when the (r; Kames' Pri. Eq. b. 1, p. 1, s. 3. 84 STRIKE'S CASE. court is called on to make a distribution of the fund. The claim of the plaintiffs has, as we have seen, to a certain extent, been settled and determined by the decree of May 1822 ; and therefore, their claim is not now to be reconsidered and reinvestigated. It lias been objected, that the bill does not, as it ought, allege that the complainants sue as well for the benefit of other creditors, as for themselves. It is often a matter of some perjilexity to deter- mine who ought to be made parties, the rule being laid down in general terms, that all who are interested in the decree should be made parties. This decree virtually recognises this as one of those cases in which all the other creditors of the debtor, against whom, or whose estate the suit is brought, may come in either before or after the decree, or at any time before the assets have been distri- buted, and claim a proportionable share of them. And supposing the bill had alleged, that the originally suing creditors sued as well for others as for themselves, it is said, that the right of such others to come in could not now have been questioned. In England it seems to be an established rule, in cases of this kind, that the bill should distinctly allege, that the complainant institutes the suit, as well for the benefit of all othere who may thereafter come in, as of himself. In this State such a qui tarn allegation in biUs of this na- ture is very common, and is certainly very proper and useful in apprising the court, and all concerned, at once, of the object and character of the suit. Biit this is the first instance here in which such an objection, to a bill of this kind, has ever been made, so far as I have been able to learn. In this case, it sufliciently appears from the whole proceedings, bill, answers, orders and decree, that this is a case in which other creditors may come in ; and therefore in this instance, and in this stage of the case, I cannot say, that ,the bill is erroneous and deficient for the want of such an allega- tion ; consequently the other creditors of Rogers may be permitted to come in and participate, notwithstanding there is no such alle- gation in this bill, (a) But it is objected, that those other creditors who, it is alleged, have actually come in to partake, have not presented themselves in legal and proper form, that their claims have not been sufficiently authenticated and proved ; and, even if these objections were re- moved, tliat their claims are barred by the statute of limitations. These objections will be severally considered, and also the reply, (a) Martin v. Martin, 1 Ves. 21-1. STRIKE'S CASE. 85 that such objections can only be made by the defendants, and not, as in this instance, by a creditor or co-plaintiff. In England it is the established practice, after a decree to ac- count has been obtained in a creditors' suit, to give notice by adver- tisement in the Gazette, to all the other creditors, to bring in their claims to be adjusted before the Master ;{a) and the mode of doing so, is by the creditor's producing the voucher thereof with his affi- davit of the amount then remaining due.(&) In this State the practice is nearly the same. But in some special cases the creditor ' has been allowed to bring in his claim by petition, in order that its nature and peculiar merits might be more particularly set forth ; or that he might be permitted to assume the position of a co-plaintiff before the decree, so as to authorize him to prosecute the suit, and to have a voice and vote in the appointment of a trustee, (c) And there are instances in which the creditors have been called in be- fore a decree, in order to ascertain the amount necessary to be raised by a sale of the real estate. (<:?) But with these exceptions (a) The Case of the Creditors of Sir C. Cox, 3 P. Will. 343.— (6) 2 Harr. Pra. Chan. 36; 2 Fow. Ex. Pra. 252; Hardcastle v. Chettle, 4 Brow. c. c. 163. (c) McMECHZiV V. Chase. — This was a suit instituted by a creditor of a deceased debtor against his heirs to have his real estate sold for the payment of his debts. — In which suit Elizabeth Edwards, by petition, setting forth, that her testator was a creditor of the deceased, prayed to be admitted as a co-plaintiff, so as to come in, participate, Stc. 1st October, 1816. — Kilty, Chancellor. — The prayer of the above petition is granted. After which there was a decree for a sale, under which a sale was made and con- firmed ; and sundry other proceedings were had, when the case was brought before the court. 6th November, 1820. — Kilty, Chancellor. — I consider the practice, as to tlie act of limitations, to be similar to that of the courts of law. If the defendant, in his answer, contests the claim in any other manner, without pleading, or relying on the act, he cannot afterwards resort to that defence. Claims filed, on the sale of a real estate, by creditors, not originally parties, are subject to be contested by the heire ; not usually by answer, but by some written notice of their defence. A defence was made in writing to this claim, on the part of the heirs, on the 10th of February, 1818; after which witnesses were produced, on both sides, and proceedings were had before the auditor. The plea,-now relied on, was filed on the 10th of December, 1819, and cannot be admitted. (d) CoRRiE V. Clarke. — This was a creditor's bill filed on 22d April, 1800. It begins thus : " The bill of complaint of James Corxie, administrator of John Corrie, and in his own right, in behalf of himself, his intestate's estate, and others the creditors of Parrott Clarke, late of Caroline county, deceased, sheweth that the said," &c. &c. 19/A May, 1802. — Hanson, Chancellor. — Ordered, that the creditors of the said PaiTott Clarke, by the publication of this order, at least three times before the 16tli day of June next, in the Easton newspaper, be notified to bring into tliis court their 86 STRIKE'S CASE. the course has been for the creditors to come in by filing the vouch- ers of their claims, in the Chanceiy office ; and this may be regarded as the present well established practice of this court. In this form a creditor may come in at any time before a distribution of the proceeds of the sale has been actually made ; and before a final audit has been ordered and ratified ; but if the auditor had previously made a statement, the cost of the restatement must be borne exclusively by such new applicant, (e) respective claims, with the vouchers thereof, on or before the 16th day of August next, to the intent, that there may be ascertained the sum necessary to be raised by a sale of the real estate of the deceased for the payment of his just debts. After which tlie case came on for a final hearing. 4th January, 1803. — Hanson, Chancellor. — The complainants' claim against tlie said Parrott Clarke, deceased, being established to the satisfaction of the Chancellor ; and it appearing, that the personal estate of tlie said Parrott Clarke is insufficient for the payment of his debts — decreed, that the lands be sold, &.c. A sale of the real estate was made, reported, and finally ratified accordingly. A commission had been issued in the usual form, to appoint a guardian to the infant defendants, and such a guardian had been appointed accordingly, who answered for them. 23d ^itg:ust, 1S03. — Hanson, Chancellor. — Ordered, that the principal money, arising from the sale of the estate of Parrott Clarke, deceased, be applied agreeably to the auditor's statement of the 12th instant ; and, that whatever interest is paid by the purchaser shall be divided, in due proportion, amongst the persons entitled to the principal. But, inasmuch as the Chancellor knows not whether the heirs of said Clarke are of years of discretion, or have a guardian to their persons and estate, the balance of £ 143 2s. Id., must be subject to the Chancellor's future order. (c) Angell V. Haddon, 1 Mad. Rep. 523 ; 2 Fow. Ex. Pra. 254 ; Davies v. Stewart, per Johnson, Chancellor, 17th February, 1823. O'Crian v. Bennet. — This bill was ^led by O'Brian and wife on the 18th of June, 1800 ; by which it appears, that the defendant Pouder, being seized in fee simple of a lot of ground in Baltimore, sold it to Francis Caskey for £687 10s., and gave Caskey his bond to convey it to him when he paid the whole purchase money ; that Caskey paid £337 10s. in part; that afterwards he mortgaged his interest for a certain sum of money to the defendant Patrick Bennet ; after which Caskey devised his interest to Martha, one of the plaintiffs ; and died. And tlien the defendant Pouder conveyed all his right to the defendant Bennet — that Bennet holds possession and refuses to coaivey, or to suffer the plaintiffs to redeem. Prayer for general relief, &c. On the 27th January, 1802, a decree was passed, by consent, for a sale in the com- mon form. The amount due Bennet, was also agreed by writing, dated 8th October, 1801. A sale was made and reported accordingly, which, by an order of the 19th of May, 1802, was at once absolutely ratified, the persons concerned having expressed their approbation thereof — that is, the plaintiffs and defendants. The property having sold for more than enough to satisfy tlie claims of the defend- ants, the plaintiff Charles O'Brian, by his petition, stated, that he having been ap- pointed the executor of Charles Caskey, as set forth in the bill, had obtained letters testaicentary ; that the personal estate of Caskey was exhausted ; that he had been STRIKE'S CASE. 87 With regard to tlie proof of claims, brought in by other credit- ors, it has been the practice in cases of deceased persons' estates, sued and was likely to be made liable for a large amount of debts ; and therefore prayed thai the surplus of the proceeds of sales in this case might be paid over to him as executor. 9th June, 1802. — Hanson, Chancellor. — Ordered, that the creditors of Francis Caskey, deceased, be notified by a publication of this order three Tuesdays or Fridays in the Baltimore Telegraph, before the end of tlie present month, to exhibit their claims, with the vouchers thereof, to the Chancellor, before the first day of Septem- ber next ; in order, that after that day a dividend may be made emiongst the said creditors of about £ 600, arising from the sale of certain property, mortgaged by the said Caskey, over and beyond the mortgage debt and costs, &,c. After which, Bernard Caskey, as creditor of Francis Caskey, deceased, by a peti- tion, prayed to have his claim discharged out of the surplus remaining after dis- charging the mortgage. 16ih October, 1802. — Hanson, Chancellor. — Ordered, that the trustee for the said sale, by publishing this order three Tuesdays or three Fridays in the Baltimore Tele- graph, before the 15th day of November next, do give notice to the creditors of the said Francis Caskey, deceased, to exhibit their claims, with the vouchers thereof, to the Chancellor, before the first day of February next, to the intent that a fair dividend of the said surplus may be made amongst the just creditors of the said deceased. This order was published, and, in consequence thereof, several creditors exhibited their claims, an account of all which was stated by the auditor. IZih February, 1803. — Hanson, Chancellor. — Ordered, that the money arising from the sale of the estate of Francis Caskey, be applied according to the auditor's state- ment filed on the 11th instant; and that the balance of £328 Os. 3d: be paid to Charles O'Brian and wife. After this, on the Ist of March, 1803, William Richardson, by his petition, stated, that the late Francis Cjiskey was indebted to him, the vouchers of which he filed, being short copies of judgments obtained by Bernard Caskey, against the plaintiff, Charles O'Brian, as administrator of F. Caskey, a part of which were assigned to the petitioner, and the surplus stiU remained in the hands of the trustee, who was apprised of this application, and would not pay over the proceedsj until- this claim was acted upon. Prayer that the claim be allowed. IM March, 1803. — Hanson, Chancellor. — In this case, the Chancellor has passed an order for discharging the claims which had been filed and passed, and for the residue of the money arising from the sale to be paid to Charles O'Brian and wife. It seems, this order has not been fiilly complied with, and this day, for the first time, claims are exhibited, with a prayer, that they be discharged by an application of the said residue. The Chancellor being satisfied of the justness of the said claims, cannot do otherwise than direct an application accordingly. And, had the said claims been exhibited in due time, no order would have been passed, as aforesaid, in favour of O'Brian and wife. It is well, that an application is made before the money is paid under that order. But had the money been so paid, no blame could attach to the court or to the register. The Chancellor regrets, that he feels himself compelled, by a paper which has met his eye, to make certain remarks, which, at firet sight, may appear unnecessary, if not improper. There is not the slightest reason for him to believe, that the aforesaid claims were ever before this day received into the olficc. It is far more probable. S8 STRIKE'S CASE. to require no higher proof than such as would induce the Orphans Court to allow the claim according to the testamentary system, in case no objections were made. Because there being no other mode by which the real estate of a deceased debtor can be subjected to the payment of his debts generally, including those due by simple contract, than by bill in chancery, the decree in such cases for- merly expressly declared, that the real estate should be sold " for the payment of the just claims of the creditors of the deceased in a due course of administration," and the law required, that the real assets should be paid by the heir or devisee in the same order as the personalty was directed to be administered by the executor or administrator ;{/) therefore, this court has felt itself authorized and required to make a distribution of the real assets upon the same grade of proof, and in the same order, as has been prescribed by law for authenticating and paying claims against the personal estate be- fore the Orphans Court. (g) So that the same claim, whether made against the personalty or the realty, or whether presented to one tribunal or another, should, as to the mode of authentication, be governed by the same rule ; and I find this practice spoken of as far back as the year 1803, as then well established, (/i) that, being either put into the mail, or enclosed in a letter to be delivered by a private hand, they never reached the office, than it is, that the register, having received, cai'elessly lost or mislaid them. It is injurious to the Chancellor to allege, tliat a claim with proper vouchers, filed in this court, cannot be established without the aid of counsel. Any man, attending to the proceedings of tliis court, might itnow, that all claims for money, arising irom sales under a decree of this court, are either examined in the first instance by the Chancellor, or submitted to, and reported on by the auditor; and that counsel ai-e rarely, if ever, employed to support any claim, except those claims which are dis- puted, and which are not, in the first instance, supported by proper proofs or vouchers. The Chancellor has made those remarks ; because he conceives, that it cannot be improper for any "man, or body of men, by a plain declaration, to reftite a calumny, which, (if unnoticed,) might produce disagreeable, mischeivous consequences. It is ordered, that of the money arising from the sale, in this cause, heretofore directed to be paid to O'Brian and wife, there be paid to Bernard Caskey, the princi- pal sum of seventy five pounds, with interest thereon, from the 12th day of April last, until payment by the purchaser. And, that there be paid to William Richardson the sum of one hundred and seventy seven pounds, seven shillings, and nine pence, with interest as aforesaid ; and that, unless a further claim, or claims, be preferred before the balance be paid to O'Brian and wife, in whose hands, money arising from the sale aforesaid, would have been answerable, &,c. (/) 178i5, ch. 80, s. 7. (i?) 179S, ch. 101, sub ch. 9. (h) Ringgold v. Jones. — This was a creditors' suit instituted on tlie 21st of No- vember, 1799, by William Ring£;;old, and others, in behalf of themselves and othei-s, tlie creditors of \\ illiam Sluby, deceased, against Jones and others, his executor and STRIKE'S CASE. gg In cases of insolvency, under the acts of Assembly which for- merly referred such matters to the Chancellor, it was the practice devisees. The answer of the executor admitted the total insufficienc}- of the personal assets. The otlier answers were to the same elrect ; and on the 2d July, ISOl, a decree was passed, ordering a sale of the real estate in the usual form. It appears that Benjamin R. Morgan, another creditor, came in by filing the voucher of his claim, which the auditor, by his report of the 22d June, 1802, declared to be wholly inadmissible. After which, Morgan filed his petition, praying, that the Chan- cellor would take the subject into his consideration, and give such directions to the auditor, as he thought proper. On the 25th IVovember, 1502, Morgan, by petition, prayed for further time to produce satisfactory proof of his claim ; and the Chancel- lor appointed a day for hearing, &,c. On the 12th February, 1803, William Ringgold, and also James Ringgold, two of the originally suing creditors, by petition, objected to the allowance of the claim of Morgan ; because it was founded on a partner- ship transaction, which had been settled, and that tlie claim had been paid : and on the 30th of April following, one of them, James Ringgold, filed sundiy objections to Morgan's claim, the first of which is thus expressed : " That the same is for a balance stated to be due on a partnership between the said parties, ending in the year 1774, which ought not to be allowed, on account of the lapse of time, and being unsettled by the parties themselves, is exhibited by the executor, [B. R. Morgan,] of one part- ner against the real estate of the other, where the creditors of Sluby have no oppor- tunity, by producing his books, to invalidate the same." 2d May, 1803. — Hansox, Chancellor, — Benjamin Morgan having exhibited a claim against the said Sluby *s estate, which the auditor of this court rejected, the Chancel- lor, on application of one of the said Sluby's creditors, passed an order, declaring, that on the 24th of April last, he would, on application, decide on the said claim, provided notice, &c. &.c. Notice has been acknowledged by Morgan's solicitor, who appearing, here produces no proof or voucher, to establish the claim heretofore made ; but prays further time, and instructions from tlie Chancellor; and an order for the producing of books, &.e. It is certain, that at the time of passing the last order for deciding, Sec, it was the chancellor's intent, and it was so understood, as it seems, by the said solicitor, and the creditor, that the aforesaid claim should, at the time appointed, be decided on, and the applicant aforesaid unite in the decision's taking place. The act of 1785, ch. 72, has been always understood, as directing the lands of a deceased debtor, who devises, or suffers his real estate to descend to an infant or infants, to be sold under the authority of this court, in aid of the defective personal estate, to pay the debts of the deceased which are established to the Chancellor's satisfaction. No mode is prescribed by the act for establishing the debts. It is left entirely to the Chancellor's discretion ; but he has observed, it is a rule to admit claims on such proof as is prescribed for, and is satisfactory to an Orphans Court, and even to admit claims, passed against an executor or administrator, by an Orphans Court, unless objected to by some person interested, viz. : by a creditor of the deceased, or his executor or administrator, or by the guardian of the infants. When claims are objected to on one part, and persisted in on the other part, the question is, in what manner shall it be tried ? If every disputed claim should be directed to be tried by a jury, very considerable expense might, in many instances, be incurred ; and the fund, for the payment of just debts, would become inadequate, or the infants might be impoverished. The Chancellor has never thought it neces- sary, or indeed proper, in the case of any disputed claims against a deceased person, to send out an issue, or to refer the party to an action at law. Indeed it would be difficult, in most cases, to ascertain the proper parties for an issue. The executor or 12 90 STRIKE'S CASE. to consider the insolvent's schedule, or his voluntary admission, as sufficient evidence of the debt ; or if the insolvent was dead, then administrator surely would not be compelled, without being a party, to act as defend- ant on the trial of the issue. However, in all cases where a claim depends on a single fact, or facts, strongly litigated, and of ditficult investigation, the Chancellor conceives, that in some manner an issue ought to be tiied. For instance, a bond is exhibited with an affidavit of no payment, &c. ; payment is alleged; but no receipt is produced ; or if a receipt be prothiced, there is an allegation of forgery. In such a case, an issue may be sent out to be tried between the claimant and the pjirty alleging ; if the said party chooses to be considered as plaintiff on the trial of the issue. In the present case, the claimant has filed an account with an affirmation of the truth of the account. The person taking the affirmation has not certified the affirm- ant to be a Quaker, Menonist, Tunker, Nicolite, or other person, entitled by law to have his affirmation to be on a footing with an affidavit by a common person. Of course, the affirmation is to stand lor nothing. The petitioner, Benjamin Morgan, has supposed the objection to his claim is, that his account is not regularly stated. He is mistaken. The objection is, that he has no proofs or vouchers to establish any claim against the deceased. He claims, as the representative of a partner with the deceased. He charges the deceased with all goods sent to him, and gives no credit, unless for remittances in money, or other things. The balance he considers as the sum to him due ; or if he and the deceased were partners, he considers himself entitled to one half of the balance. His account resembles little a partnership account. A and B are partners. A sends £, 10,000 worth of goods to B, who remits to him £3,000. Can it be supposed, that merely from this, B owes £2,000 to the partnership; and of course owes £1,000 to B? No ! The charges of the store are to be taken into the account. There may be losses of the articles, or they may have been sold for less than was expected ; or they may have been sold for a great profit. In fact B was only to credit the company with the sale of the articles, and to charge every expense of storekeeping ; and if there was a balance in favour of the partnei-ship, that is to say, if, after deducting all expenses the sale of the goods amounted to not more tlian £ 10,000, it is impossible that B. shall be in debt to A. The claimant, Morgan, has, by his petition, requested the Chancellor, to instruct the auditor with respect to the mode of stating the account. What can the Chancellor do more, if he shall direct tlie auditor, than order him to state the account, as other accounts are stated ? The auditor's objection to the account, was not merely as to the mode. The auditor was of opinion, tliat an account charging the goods sent to Sluby, and crediting him only with v^'hat he sent to Morgan, could not possibly be a just statement of a partnership account. Morgan, by his petition, requests an order for the production of books in general. Perhaps the law, usage, or practice of this court, respecting the production of books, is less understood, in general, than any part of the jurisdiction of tiiis court. The power of ordering books, has ever, as it ought to be, been exercised with great cau- tion. No instance can be shewn, where a man has been considered as entitled to the production of private books, in xvhich he has not an interest. And in all cases where books have been ordered to be produced, the particular books have been speci- fied ; and the court has been first satisfied of the necessity of producing them. But, in no instance has a man, who is not a party to a suit, been compelled to produce private books. Is it conceivable, that Morgan, exhibiting a claim against Sluby, in a summary way, without filing a bill against any person whatever, is entitled to an order against every person whom he alleges to have in his possession certain boolcs STRIKE'S CASE. gj such proof as was admitted to sustain claims against deceased per- sons' estates. But, if the insolvent denied the debt, or there was . any discrepancy between his schedule or admission and the credit- or's claim, then the creditor was put to full proof. (i) But the sta- tute of limitations was never considered as an objection to the payment of a claim, either in the case of a deceased person's estate, or in the case of insolvency, unless it was specially relied upon. The case now under consideration is substantially and in truth, a case of insolvency ; not, indeed, referred to the Chancellor by any special act of Assembly, but one which has been brought here by these proceedings, and in due course of law ; and, there- fore, the assets now here will be distributed upon such principles and proof as have been applied and required in similar cases, where no objection to the claim has been made. But the originally suing creditors have objected, that the claims of the other creditors, who have come in since the institution of the suit, are not sufficiently sustained by proof; they have also objected that those claims are barred by the statute of limitations ; and their reliance on the statute was made, and sent with the reference of the case to the auditor. The reply to these objections, in argument, is, that they are such as can only be made by one or other, or both of the defendants ; and not by a creditor or co-plaintiff. The debtor or his heir, has so manifest an interest in the real estate which it is proposed, in cases of this sort, to subject to the payment of his debts, that there never seems to have been any difference of opinion as to his right to make such objections. Where an executor or administrator fails to make such objections, which may throw li2;ht on the subject ? Suppose an order on A B, to produce books, without any specification, and the order not complied with, by producing any books whatever. Is A B instantly liable to aUachment? It would be ridiculous to suppose it. The fact is, that no man has a right to the production of another's books ; and every man may do as he pleases with his own books. Each partner, indeed, is enti- tled to the benefit of all books kept by the partnership. But then the person in whose possession they are, must, in some way, be made a party to a suit, before they can be ordered to be produced. It appears to the Chancellor, that the utmost he can grant to Benjamin Morgan, is llirther time for establishing his claim ; and that the Chancellor cannot, in this case, with propriety, for the reasons herein assigned, direct any issue, or issues to be tried. It is, onthe whole, ordered in the presence, or with the assent of Morgan's solicitor, that he be allowed until the first day of July next, to produce his vouchers, and have his account against Sluby, (if any just account he hatli,) stated by the auditor of this court. (0 1 Ev. Poth. Obi. 409. 92 STRIKE'S CASE. or vraives them, or there has been a judgment against him ; still the heir or devisee may make such objections in defence of the real assets. And where the executor and some of the heirs waive them ; yet, any other of the heirs or devisees may alone make them in defence of the whole of the real assets, as was done in the case of Wm. Frazierh estate in this court.(j) It seems to ( /) Edmondson v. Frazier. — This bill was brought by creditors to subject the real estate of the deceased debtor to the payment of his debts. The estate was sold accordingly under a decree in the usual form. The auditor, in his report of the 29th January, 1822, saj-s, " the act of limitations, which, as a bar to the creditors' claims, is relied upon by the distributees only, the auditor is not satisfied they are entitled, under the circumstances, to the benefit of it." This report was excepted to by the distributees on this and other accounts. 10th ^pril, 1822. — Johxson, Chancellor. — Exceptions to the auditor's report are filed. The complainants except to that part of the auditor's report unfavorable to the claim of Nicholas Hammond, which claim is founded on a bond executed by one John Mace, and William Frazier, the above deceased, as securitv^ The auditor, in conformity with the usual course of the court, would not allow the claim without evidence to establish the allegation in the bill, that INIace, the principal debtor, was insolvent. A court of equity when it interposes, and adjusts the relative obligations of contracts and agieements in which more than two parties are concerned, calls them all before the court; that a complete and final adjustment may take place, and each be compelled to pay his just portion ; and thereby the creditor draws from each, being solvent, what equitably ought finally to be drawn from him. It will not compel the one, both of the debtors being solvent, to pay the whole, and turn him over to his co-security to restore the one half. When, therefore, estates are sold to pay debts, and in which the' interests of minors are generally deeply involved, it becomes the duty of the court, to see, that no claim be allowed, in which the deceased, with others, stands indebted, without satisfactory proof being produced, that the other persons joined in the obligation were insolvent. But as that proof is now produced in support of the claim No. 4, the same is hereby allowed, and the trustee is directed to pay tlie same, with a due portion of the interest received, or that shall be received. Exceptions are filed on the behalf of Wm. R. Stewart and wife, of Samuel Wright and Mary Elizabeth Wright, to the claim distinguished by No. 3. This claim, by the answer of those who are only interested in its rejection, under the decree, is strongly contested, and the act of limitations relied on as a bar to the recovery. The answer of one defendant, in chancery, can never implicate the interest of a co- defendant ; but more especially, when the person, so answering, is not interested in the matter in controversy. The answer, therefore, of Win. Steward's (Frazier's) widow, and executrix, who had exhausted the personal funds, never can be received to charge the real. They can only be affected by the answer of those interested in them, or by the exhibition of such proofs as will bind them. The claim No. 3, rests on a bond dated 7th February, 1790 ; and on an open account, about the same time. The bill in this cause was filed on 23d October, 1815, more than twenty-five years after the bond ; which was made payable forthwith A sufficient length of lime has elapsed to presume payment. Nor is there any evidence in the cause to remove the presumption. The exception taken to the claim No. 3, is therefore supported, and the claim is hereby rejected. The auditor is directed to re-state the account, rejecting the said claim. STRIKE'S CASE. 93 be conceded on all hands, that these originally suing creditors have an interest in these real assets ; but, yet it is urged, that they can- not make such objections as these against the claims of their fellow creditors. This matter must be determined by practice, on prin- ciple, and on authorit}\ The defendants, or the representatives of deceased debtors, are generally, from strong motives of interest, so ver}'- active in their opposition to all and each of the creditors, where opposition can avail, that they rarely leave any thing to be said or done by any one else ; and hence, it would seem, from the practice of the court, that they were the only persons who had any right to urge such objections. It is obvious, therefore, that the main current of the practice here is not likely to be very fruitful of information on this subject: There is a class of creditors' bills common in England, but of rare occurrence here, which will cast light upon this matter. Bills are often brought there by one creditor in behalf of himself and others, against executors to obtain payment, and to have the assets brought in and administered under the directions of the Court of Chancery, (/c) In such cases the executor is not bound to plead the statute of limitations ; and if he does not, the creditors will have a decree, and be paid. But it is the constant course, in the mas- ter's office, to take the objections against other creditors, and to exclude from distribution those, who, if legal objections are brought forward, cannot make their claims effectual. So too, in cases of bankruptcy — if the bankrupt waives any objection, it may still be made by the creditors ; and the reason of this is, that the creditors have a direct and manifest interest in the funds, and that it should satisfy their whole claims respectively. If each of them was not permitted to make these objections, they would be left at the mercy of those, for a full defence, who, in all cases, where the fund is not more than enough to pay all the debts, have no interest in exclud- ing any one from partaking, to their prejudice, in the distribution, however ill-founded his claim may be. And besides, such pro- ceedings in chancery, are only to be considered as other modes of compelling payment ; and the Chancellor is understood, in the dis- tribution, to govern himself as to legal debts by the rules of law ; and as to equitable debts, by the rules of equity, regarding the claim of each creditor as a suit depending ; and hence, if the (fc) 1 Mad. Chan. 57S. 94 STRIKE'S CASE. €xecutor or bankrupt fails to object or to plead the statute of limita- tions, it may be made or relied upon by any of the creditors ; and the validity of such objections will sometimes be directed to be tried on an issue at law.(/«:) In this State, similar principles have been held, and sanctioned in the case of William Sluby^s estate : — in that case, Chancellor Hanson observes, in speaking of the liability of the real estates of deceased persons to be sold for the payment of their debts, under the act of 1785, ch. 72, that " no mode is prescribed by the act for establishing the debts. It is left entirely to the Chancellor's discretion. But, (he observes,) it is a rule to admit claims on such proof as is prescribed for, and is satisfactory to an Orphans Court ; and even to admit claims passed against an executor or administrator by an Orphans Court, unless objected to by some person interested, viz. by a creditor of the deceased, or his executor or administrator ; or by the guardian of the infant." The chan- cellor then goes on to speak of the manner in which such objec- tions should be tried ; and in substance declares, that he would not direct an issue at law for that purpose, but in extraordinary case?.(^) . There can be no difference, in point of equity, between the case of a creditor's bill against a deceased person's estate, and a creditor's bill, as in this instance, against an insolvent's estate. Therefore, upon principle and authority, it is competent for these originally suing creditors to make these objections, and to rely upon the statute of limitations, in opposition to these claims of the other creditors who have come in since the institution of this suit. But in applying the statute of limitations in such cases, it must be with all its saving provisoes ; and also subject to the resuscitating quali- fications of such acknowledgments as are deemed sufficient to take a case out of the statute ; of which a statement in an insolvent's schedule may be considered as one, where the claim and schedule agree. And the statute, as in other cases, must be allowed to commence its operation from the time the debt accrued ; and to run on until the creditor came in, by filing his petition, or the voucher of his claim. The plaintiffs, by their bill, found their claim against the defend- ants, upon contracts made with Henderson Sf Rogers ; and the (A-) Ex parte Dcwdney, 15 Ves. 497; Jolliffe r. Pitt & Whistler, 2 Vern. 691; GiifordiJ. Hart, 1 Scho. &. Lefr. 409; Civil Code Napol. art. 2225.— (0 Ringgold V. Jones, ante, 88, note ; Edmondson v. Frazier, ante, 92, note ; Shewcn v. Vander- horst, 1 Russ. &, Myl. 347 ; S. C. 2 Russ. & Myl. 75. STRIKE'S CASE. 95 decree of May, 1822, recognises and affirms their claims of that description ; and the proofs derived from competent witnesses, will enable the auditor, in fulfilment of that decree, to refer to the notes and vouchers, to ascertain the amount, and to compute the interest thereon. But, it would be altogether without precedent to allow a plaintiff to split up his claim into parcels, and to bring separate suits for each, or after he had obtained a decree to add to the amount, and to eke out his claim indefinitely, by introducing other particulars, and causes of action of a diflerent description, not mentioned or alluded to in the pleadings, or sanctioned by the decree, and which were only noticed in the depositions of some of the wit- nesses ; or to bring in any additional claim by a mere ex parte petition, filed after the hearing and decree. If the plaintiffs had other claims than those mentioned in the pleadings, subsisting at the time of filing their bill, which might have been included therein, they should have had their bill so amended as to have embraced them, and thereby enabled the opposite party to gainsay them if he could : — therefore the account of the plaintiffs with John Rogers alone, and also their claim for costs in the suit against Penelope D. Price, must both be rejected. (7?i) The claim of the solicitors, Murray and Rogers, which appears to have been partially sanctioned by the order of the 9th of January, 1824, may be considered as somewhat in the nature of costs ; and it having been placed by the auditor's report before the party's other counsel, and all concerned, and no objection having been made, it would seem now to be proper to allow it entire ; and it may be so stated by the auditor. There is no evidence, derivable fi-om any competent source, going to show, that the complainants ever received the money said to be due on the bonds of a Doctor Harsnip, which were said to have been in their hands and others : — any discount or deduction from the claim of the complainants, on that account, must therefore be rejected by the auditor. According to the established usage and practice of the court, as has been explained, there are but two modes by which other cre- ditors can be permitted to come in and participate, in cases of this sort ; they are either by petition, or by filing the vouchers of their (m) Spra^^ v. Birkes, 5 Ves. 589 ; 5 Bac. Abr. 668 ; Purefoy v. Purefoy, 1 Vern. 29 ; Hutson v. Lowry & Neville, 2 Virg. Cases, 42 ; 1825, ch. 167 ; Wallis v. Saville^ 2 Lutw. 1536. 96 STRIKE'S CASE, claims. But the filing of the schedule of an insolvent debtor, certainly cannot, by any strained or liberal construction of this practice, be considered as the filing of the vouchers of the claims of all, or any of those creditors, whose names and claims are stated thereon ; and, laying aside the insolvent's schedule in this case, as furnishing no evidence of the intention of any creditor therein named, to come in and make a claim for any debt, which he alleged, and was ready to prove was due him, when such sche- dule was filed, there are but two other creditors, w^ho have made any show of coming in as other creditors of Rogers ; and they are, Robert Taylor, and the firm of Hollmgsworth Sf Worthington. Taylor has filed a mere short copy of a judgment, which he obtained in Baltimore County Court against Henderson, the partner of Rogers ; and Hollingsworth ^- Worthington merely say, that the only demand they now have against Rogers, is for twenty dollars, lent him seve- ral years ago : — but these claims are so utterly destitute of any support, by proof of any sort, that they must be rejected. There are then, in fact, no claims of any other creditors of the defendant Rogers, which the auditor can be allowed to state and report for confirmation. Upon the principles before explained. Strike must be charged with the rents and profits, or full value of the propert}^- in question, from the date of the deeds from Rogers to him, to the day of the sale by the trustee. The amount, or what has been the full value during that time, must be collected and ascertained by the. auditor from the proofs in the cause ; and, for the reasons already given, Strike's claim for repairs, improvements, and advances, must be totally rejected. The practice in the Chancery Court of this State, is wholly unlike that in the Chancery Court of England, in relation to excep- tions to the depositions of witnesses. Here, the testimony having been taken publicly before the commissioners,(7i) there is no formal order or rule for the publication of it, as in England ; but w^hen the commission is returned, it is opened by the chancellor or the regis- ter, and objections of every kind to the testimony, are taken and considered at the hearing of the cause. In this case objections have been made to the reading of the depositions of two of the witnesses, on the ground of their being interested. The proofs are all now to be sent to the auditor, upon which he is to found some of the particulars of the account he is directed to state. But (n) 17S5, ch. 72, s. 14. STRIKE'S CASE, , 97 he should not be sufFered to raake any statements derived from the testimony of incompetent witnesses or illegal evidence. Therefore these objections do not come now too late, and must be decided on for the government of the auditor. The Chancellor considers it as sufficiently apparent, upon the proceedings, without going into a statement of the case, and his rea- sons, that John Rogers, the defendant, is an interested witness ; and therefore, the whole of his testimony must be rejected. (0) The reading of the deposition of Alexander Irvine, has also been objected to, on the ground of his interest. It does not, however, sufficiently appear, that he was a creditor of Rogers, and inter- ested at the time ; and therefore the objection to his testimony must be overruled. A paper purporting to be the answer of Strike to a petition of the complainants filed in Baltimore County Court against him, has been insisted on as applicable and furnish- ing evidence pertinent to this case. But from its phraseology and general tenor, it is evident, that it cannbt be a part of the pleadings in this suit ; and without the other proceedings, to which it purports to be an answer, it cannot be evidence in this cause, and must be rejected. With these explanations, determinations and directions, the case is referred to the auditor to state an account accordingly ; and the several exceptions, as well of the plaintiffs as of the defend- ants, to the auditor's statements and reports heretofore made, so far as the same are inconsistent with the determinations and direc- tions herein before given, are overruled, and so far as they may agree therewith, are sustained. The complainants afterwards filed a petition stating, that they originally employed as their counsel Henry M. Murray and Henry W. Rogers, and agreed with them, in case of the successful ter- mination of this case, by a final decree against Strike in this court, to pay them ten per cent, each, on the amount of the proceeds of the suit, as a compensation for their services, subject to a deduc- tion of whatever moneys should be paid to them in the mean time, on the account of this suit ; and that after the interlocutory decree was obtained, Murray and Rogers applied to Baltimore County Court to fix their per centage on the amount then received by the sale under the decree, while this suit was pending there, which (0) Murray v. Shadwell, 2 Ves. &c Bea. 401. 13 98 STRIKE'S CASE. was allowed by that court, under the impression, that those genfle- men were to proceed in the case to a final decree ; upon which con- dition alone, was the per centage to be allowed. The petitioners further stated, that Henry M. Murray, soon after that order was passed, died, without proceeding further in the case, after the audi- tor's first report therein, and the petitioners have, in place of Mur- ray, been compelled to engage Charles Mitchell as their counsel, who has attended to the same since ; and the petitioners had alone borne all the expenses of the suit. Wherefore they prayed, that the same per centage, in proportion to his services, might be allowed to Charles Mitchell, as was to be allowed to Henry M. Murray, if he had lived, to be ascertained by this court, subject to a like deduction therefrom, of the money advanced by the com- plainants to him during the progress of this suit, or that this court would be pleased to prevent any further burthen of the counsel- fees in this case upon the petitioners, but that the fund may con- tribute thereto, under the agreement aforesaid. 11th April, 1826. — Bland, Chancellor. — The Chancellor has read and considered the foregoing petition. No objection was inti- mated to him, against the claim of Henry M. Murray, until after the argument, and the Chancellor was engaged in deliberating upon and maturing those directions, with which this case has been lately sent to the auditor. The Chancellor knows of no practice of this court, or of any analogous proceeding of the English court, which would authorize the introduction of claims of this sort into a cause, depending or about to be finally disposed of. The claim of the solicitors, Rogers and Murray, he sanctioned under all the very peculiar circumstances which belonged to it, and he considers the objections to it, stated in the foregoing petition, as coming now too late. The claim has been acquiesced in, and could not now be reconsidered without giving H. M. Murray''s representatives an opportunity of being heard, which cannot now be done. The Chancellor must in all cases leave the contracts between solicitors and suitors, relative to professional services, to be settled and decided upon in like manner as all other contracts. They cannot, and ought not, to be introduced into, and blended with any pending suit. Therefore this petition must be, and is hereby dismissed with costs. On the 4tli of May, 1826, the auditor reported, that in obedi- ence to the order of the 10th of April last, he had re-stated the STRIKE'S CASE. 99 account between the estate oi John Rogers and the trustees, apply- ing therein the proceeds of sale, to the payment of the trustees' commission and expenses ; the complainants' costs in Baltimore County Court ; the costs of this audit, arid the fees allowed to H. W. Rogers and H. M. Murray ; and the balance of the said pro- ceeds, then remaining, to the payment of part of the complainants' claim allowed. By this account, the complainants' claim, exclusive of the allowance to their solicitors, amounts to - - $8657 81 Proceeds of sale applicable to the payment thereof - 2750 80 Leaving a balance due the complainants of - - - $5907 01 as of the day of the trustees' sale. He has also stated an account between Strike and the estate of John Rogers, in which he has charged Strike with the full value of the rents and profits of the property conveyed to him by Rogers, rejecting entirely Strikers claim for advances in payment of taxes, ground-rents, &c. and has also charged him with interest thereon up to the day of the trustees' sale. This account makes Strike indebted in the sum of $6559 33, with farther interest on $4967 63 from the day of sale ; an amount more than sufficient to discharge the balance of the complainants' claim unprovided for by the account between the estate of John Rogers and the trustees. To this report the defendant. Strike, excepted, 1st, for, that the auditor has rejected entirely the claim of the defendant. Strike. 2d. Because Strike claims the whole proceeds of the said sales of the said property, mentioned in the trustees' report, statement and proceedings, in preference to all the other claims in the said cause; and will contend that he is so entitled. 3d. Because the auditor has charged the defendant. Strike, with the full value of the rents and profits of the property conveyed to him by Rogers, rejecting entirely Strikers claim ; and because the said rents are charged higher than is warranted in the proof of the cause. 4th. Because the auditor should have allowed the defendant, Strike, his advances in payment of taxes, ground-rent, and the sum assessed for the extension of Pratt-street ; which he has not done. 5th. Because the auditor should have allowed the defendant, Strike, for all permanent and necessary improvements, laid out and expended, and created on said lots ; which he has not done. 6th. Because the auditor has charged the defendant, Strike, with interest on the rents and profits of said property to the day of the 100 STRIKE'S CASE. trustees' sale, which makes Strike indebted in the sum of $6559 33, with further interest on $4967 63, from tlic day of sale ; which he ought not to have done. 7th. Because Strike is charged with the ground-rent upon the lot on Prait-street, running to WId&key-alley ; which he ought not to have been. 8th. Because, in the said account and report, an allowance is made to //. W. Rogers and Henry M. Murray^ esqr's. for fees ; and also an allowance for expenses incurred by creditors at the private meetings, to consult about their private affairs. 9th. Because the said statement of account and report is erro- neous in point of fact and law^, and contrary to equity and right. loth May, 1826. — Bland, Chancellor. — This case having been submitted upon the auditor's report, and the exceptions of Nicholas Strike thereto, without argument, the proceedings were read and considered. Whereupon, it is ordered, that the said exceptions to the said report, made and filed by the auditor on the 4th instant, are hereby overruled ; that the said report and statements of the auditor be, and they are hereby ratified and confirmed, and that the trustees apply the proceeds accordingly, with the interest that has been or may be received. And it Is further ordered, that Strike, one of the said defendants, forthwith pay unto the complainants the sum of $5907 01, together with interest thereon from the fourteenth day of September, in the year 1822, until paid. And it is further ordered, that the defendant. Strike, pay unto the complainants, all costs which have not been stated and included in the said report of the auditor, to be taxed by the register. The defendant. Strike, appealed from the decree of the 28th of May, 1822 ; from the order of the 10th of April, 1826 ; and from the order of the 15th of INIay, 1826 ; and the Court of Appeals at June term 1828, affirmed them all. Strike v. McDonald ^ Son, 2 H. & G. 258. HEWITT V. HEWITT. IQI HEWITT V. HEWITT. Cruel and violent treatment of the wife by the husband, and his refusing to permit her to live mth him ; held to be sufficient ground to direct him to pay her a certain sum Eis alimony ; the amount to be adjusted with a due regard to his circumstances. And as the several instalments became due, the payment, on petition by her, was enforced by an order to shew cause, followed by a fieri facias. This bill was filed, on the 7th of October, 1825, by Martha Hewitt., against Eli Hewitt, her husband, to obtain an allowance for alimony; upon the ground, that he had treated her with great cruelty and violence, and that he had positively refused to permit her to live with him, or to provide any adequate maintenance for her, although he had a large real and personal estate, as specified in a schedule exhibited with the bill. To this bill the defendant immediately put in his answer, admit- ting the facts as stated; and it was agreed, that the chancellor should pass such a decree, as he might deem proper, allowing alimony according to the schedule, which was admitted to be a correct representation of the nature and value of his estate. (a) (a) CoDD V. CoDD. — This bill was filed, on the 17th of Februarj-, 1727, by Mary Codd, against her husband St. Ledger Codd, in which she stated, that he had not only abused her with very opprobrious language, but had treated her in an inhuman and barbarous manner ; that he had by his cruel treatment deprived her of the use of one of her arms ; and had abandoned her, leaving her without support, to live in a manner common to few people except slaves ; and that he had altogether refused to permit her to cohabit with him, notwithstanding her most humble and repeated solicitations. Whereupon, the bill prayed, that he might be compelled to make her such an allowance and maintenance as was suitable to his station and fortune, &c. The defendant, by his answer, denied the alleged cruel treatment, and the havin* deprived her of the use of an arm ; and he averred, that she had broken open his trunks and closets, and had taken thence a considerable amount of personal property which she had sold for spirituous liquor to drink ; that her habits Were such, that he could not live with her ; and lie had therefore built for himself a small liouse near to that in which he had formerly lived with her, and which he had left her still to occupy ; and that he had been, and always was willing to allow her a suitable main- tenance ; but that his estate was small, unproductive, &c. After which the case was submitted on bill and answer alone. 2(ith May, 1729. — Calvert, Chancellor. — Decreed, That the defendant pay to the complainant ten pounds per annum, by four quarterly payments ; and it is also decreed, that he provide her a house ; and that the defendant pay unto the said com- plainant, all her costs and charges by her in the said cause laid out and expended. — Chancer/ Records, Lib. I. R. No. \,pa^e 275, 280. Sarah Wright's Case.— This appears to have been a bill filed by Sarah Wrigfit, against Blois Wright, her husband, for alimony ; but as the original papers are not to be found, the particulars of the case cannot be given. Zth October, 1730.— Ogi,e, Chincellor.— Ordered, That tlie defendant pay to the 102 HEWITT V. HEWITT. 10/A October^ 1825. — Bland, Chancellor. — This cause standing ready for hearing, and being submitted, the proceedings were read and considered. Whereupon it is decreed^ that the defendant, Eli Hewitt^ pay unto the plaintiff, Martha Hewitt, or to her order, during their natural lives, so long as they shall live separate and apart from each other, the annual sum of three hundred and fifty dollars, payable half yearly ; that is to say, one hundred and seventy-five dollars on the tenth day of April, and one hundred and seventy-five dollars on the tenth day of October in every year ; the first payment to be made on the tenth day of April next ; the same being deemed a suita- ble alimony, having regard to the circumstances of the parties respectively, for her support and maintenance. And in case it should not be punctually paid when demanded, the plaintiff may apply to this court to have the payment enforced. And it is further ordered, that either party be at liberty to apply, upon any future change of circumstances of the parties, or either of them, for such variation or modification of this decree as those future circum- stances may indicate to be just. And it is further ordered, that the defendant pay all costs to be taxed by the register. The plaintiff, by her petition, stated, that she still continued to live separate and apart from her husband ; that by the decree in this case she had become entitled to the sum of $175, on the 10th of April last, which sum the defendant had neglected and refused to pay: whereupon she prayed, that he might be ordered to pay, &c. IbthMay, 1826. — Bland, Chancellor. — Ordered, ihsit Eli Hewitt pay unto Martha Hewitt, the sum of one hundred and seventy-five dollars with interest thereon, being the amount which became due on the 10th of April last, of the sum allowed her as alimony ; or shew good cause to the contrary, on the 15th day of June next; complainant for her maintenance, one hundred pounds weight of tobacco per month, until answer and further order. And also ordered, that attachment issue for want of an answer. After which, upon further proceedings being had, and on the case being brought before the court for final hearing : bill December, 1732. — Ogle, Chancellor. — Upon reading the bill and answer, and all other the proceedings in this cause, and upon mature consideration thereupon had ; it is ordered, adjudged, and decreed, that the defendant pay to the complainant for her yearl}' maintenance, the quantity of twelve hundred pounds of tobacco, upoa the tenth day of June yearly. — Chanceiy Records, Lib. No. 2, page 74, 264. HOFFMAN V. JOHNSON. 103 provided that a copy of this order, together with a copy of the peti- tion, be serA'ed on Eli Hewitt, on or before the 27th instant. The plaintiff by her petition stated, that a copy had been served as required ; that the defendant had failed to shew cause or to pay ; whereupon she prayed for a fieri facias ; which was ordered accordingly. The payment of other instalments of the alimony was enforced in like manner ; after which the case was terminated by the death of the defendant. HOFFMAN V. JOHNSON. The principles of equity in relation to parties standing as creditor, principed debtor, and surety. Where evidences of debt cire received under an agreement, that when paid, they are to go in discharge of so much, the assignee is bound to use due dili- gence in collecting them ; and on failing to do so, to return them to the assignor. The right to take in contiguous vacancy under a wan-ant of resurvey, is a privilege incident to a legal, not an equitable title. Where a tract of land is sold as contain- ing so many acres, more or less, a reasonable allowance for small errors, &.c., is to be made. But where an allowance may be claimed for deficiency, it may be made up by the vendor, by taking in contiguous vacancy under a warrant of resurvey, before he has parted with his legal title ; and the vendee will be bound to receive the vacancy so added, so far as to make up the alleged deficiency. It appears, that Fielder Gantt mortgaged two parcels of land in Frederick county, the one called Foufs Delight, and the other The Resurvey on Beauty, to the late James Hunter, who afterwards made his will, and died ; that Hunter, by his will, directed his lands to be sold by his executors, for the payment of his debts ; that his executors had the mortgages foreclosed, and afterwards sold those lands to George Schnertzell, and gave him a bond for a conveyance on the payment of the purchase money ; that Schnertzell sold a part to William Hobbs, who sold it to John Hoffman; and the other part Schnertzell sold to John Hoffman, who thus obtained a claim, as assignee of Schnertzell, to the whole ; that Schnertzell assigned many notes and bonds, in part payment, for which he was to be answerable ; that the executors oi Hunter are dead; and administration de bonis non had been granted on his estate ; and that Baker Johnson had become seized of the legal title to those lands. Upon which, Hoffman, Hobbs, and Schnertzell, on the 23d of July, 1804, filed this bill, to obtain a conveyance of the legal title, alleging, that the whole purchase money had been paid. The 104 HOFFMAN V. JOHNSON. other material facts of the case, sufficiently appear from the Chan- cellor's opinion. After several abatements, by the death of parties, the case, having been revived, was at length brought to a final hearing. I8ih July, 1826. — Bland, Chancellor. — This case standing ready for hearing, and no counsel appearing for the defendants, the solicitor for the plaintiffs was heard, and the proceedings read and considered. This case, as it now stands, is much reduced in compass, but is not yet altogether free from difficulties. The first inquiry is, whether, in point of fact, the purchase money has been paid by the plaintiff Hoffman, or those under whom he claims ; or whether, according to the principles of equity, the vendee has been alto- gether discharged from his responsibility, even although the pur- chase money may not have been entirely collected and paid. According to the contract between the parties, the vendor was to obtain payment, in part, by collecting the amount due on several bonds and notes, assigned to him on the 23d of July, 1791 ; which, as was declared by the agreement, " when paid are to go in dis- charge of the amount of such payments." The debt due fi'om Chapline, which was one of them, it is admitted, by a solicitor of the defendants, has been lately collected and paid. And it is proved, or conceded, that the whole of the purchase money has been paid, except to the amount of the debts said to be still due from Hole and from Benner. And whether or not these have been paid, or the vendee discharged from his responsibility for them, is, at present, the whole extent of the controversy as regards the pur- chase money. The purchaser, in respect to these assigned debts, was placed in the situation of a surety, (a) It will, therefore, be necessary to advert to the general principles of equity, applicable to parties standing in the relation to each other, in which these did, of cre- ditor, principal debtor, and surety. According to the Roman law, a surety was allowed three advan- tages : 1st, he might compel the creditor to sue the principal debtor first ; 2d, the creditor might be driven to resort to each surety for his proportional share only; and 3d, a surety, sued for the whole debt, might demand of the creditor to transfer over his actions against the other sureties, before he was allowed to recover the (a) Anstey v. Marden, 1 New Rep. 124. HOFFMAN V. JOHNSON. 105 whole from the one sued ; that is, to have it placed in his power, as far as practicable, to obtain reimbursement, by being clothed with all the powers of the creditor and substituted in his place. (a) These principles and privileges, it is said, have been substantially- adopted by all tjie nations of Europe, of whose code the Roman law forms the basis ; which shows that they accord very much with natural equity and the common sense of mankind. (6) The principles of equity, of England and of Maryland, although in most respects substantially the same, are apparently not so broad and indiscriminate in their application. In the ordinary case of a money bond, there is no distinction, upon the face of it, between the principal and the surety ; who being both debtors to the same creditor ; a court of equity will rarely, if in any case, be induced to make any distinction between them, as regards their creditor. Being alike his delators, and equally bound to him ; and the credit having been given to them all together ; equity never interferes with such a contract, so as to loosen any of its ligatures, unless upon peculiar and strong ground. Yet, as bet^\'een themselves, such obligors, without prejudice to their creditor, may be treated, according to the fact, as principal and surety, and relieved accordingly. The surety may come into equity to compel his principal to relieve him of his liability by pay- ing off the debt ; but it is otherwise in the case of a bond of indemnity, the legal effect of which is to protect against the conse- quences of future deficiencies, but not to entitle tlie party to call for anticipated and precautionary payment, by way of preventing the risk of his being thereafter damnified, (c) Hence it is evident, that a case can rarely occur, under a contract in the form of a mere money bond, where one of the obligoi-s, who may be, in fact, no more than a surety, can be considered as discharged by reason of the obligee's not proceeding against his co-obligor ; or, merely because of the laches of the creditor, (rf) The principles of law in relation to negotiable and commercial paper, have arisen out of the peculiar nature and uses of such in- struments. It has been found, from experience, every where, that it is of the utmost importance, in commercial affairs, that the holder of such paper should, without delay, give every one who has become a surety or endorser, notice of its fate. Hence the (ff) Coop. Just. Inst. 612.— (6) Hayes i'. Ward, 4 John. C. C. 133.— (c) Antro- bus V. Davidson, SMeriv. 57S. — (*/) Ex park lluihfoitli, 10 Ves. 114; Coop. Just Inst. 462, 612. u 106 HOFFMAN V. JOHNSON. holder of such an instrument is held strictly bound to use due dili- gence; or, on his default the surety or endorser is discharged. Cases of this kind can have little bearing on that now under con- sideration. In the case of a surety for the performance of gers'ices ; as, of a penal bond, the condition of which is, that one of the obligors shall faithfully perform certain work, or discharge the duties of a certain station, as a clerk, or the like ; no unreasonable tardiness, on the part of the obligee, wiU be tolerated. In such cases, one of the obligors only is to perform the service, and if he neglects his duty, the employer alone can know it, and he alone can give ►notice of the neglect. Hence it is evident, that any unreasonable delay in making a claim, or a long acquiescence in the nonper- formance of the services, must be considered as a waiver of the right to call for compensation ; and as a tacit discharge of the surety, whose principal has been thus unreasonably indulged to his prejudice. Therefore, in this class of cases, the obligee must use due diligence in bringing suit after the cause of action has accrued, or the surety will be discharged.(e) But the case now under consideration, belongs to a different class. It is one of those where the debtor places in the hands, and under the control of his creditor, the means of reaching funds, which are represented as available and adequate to the satisfaction of the demand. And the creditor, by accepting those means, tacitly undertakes to use due diligence in endeavouring to make the funds available ; or to furnish evidence that they do not exist, by shewing that there was nothing in the hands of the alleged holder of them ; or, that he was insolvent ; and also, that, after having made every proper effort to come at such funds, he wall return or reassign the bond, note, or judgment, which had been placed in his hands for that purpose. An example of this class of cases may be presented in this form : A is indebted to B, and B is indebted to C. And it is agreed, that B shall assign his claim upon A, to C, which, when paid, is to go in discharge of the debt due from B to C ; consequently, by this agreement, C becomes the creditor, A the principal debtor, and B stands as the surety of A. But if it should turn out, that there is nothing due from A to B ; or that A is insolvent, then the consideration of the agreement fails, and B again becomes a principal debtor to C. (c) Coop. Just. Inst. 613. HOFFMAN V. JOHNSON. 107 In cases of this sort, the exertion of every reasonable and proper degree of diligence is within the express terms and meaning of the contract. And, after all such proper efforts have been made, before payment can be enforced from the surety, equity and justice require, that the bonds, notes, or judgments, or all the securities he had placed in the hands of his creditor, or enabled him to pro- cure, should be returned, or reassigned, so as to put it in the power of the debtor or surety to obtain reimbursement from the funds which he had represented as sufficient, and which his creditor had shewn that he was unable to render available. (/") Such are the principles of equity applicable to this case : let us now review the facts. It appears that Hole's bond Avas payable on the 23d September, 1786 ; that it was given to secure the payment of the purchase money of a certain lot of land, which was held bound for the pay- ment of this debt, by an equitable lien ; and, which lien there is strong reason to believe, continued unimpaired dowTi to the year 1807. At May term, 1793, of the General Court, the assignee obtained judgment against Hole on this bond ; on which judgment a ca. sa. was issued, returnable to May term, 1794, and there the judicial proceedings appear to have ended. Hole petitioned for the benefit of the insolvent law, in April, 1794; yet, it does not appear that he obtained a complete discharge under any insolvent law until 1802. Not even an offer has been made by the holder of this bond, given by Hole, at any time, to return it, or to transfer the judgment obtained on it to the vendee. From all these circum- stances it is considered, that the vendee is entirely discharged from all responsibility for this debt of Holers. If it has been lost, it has been owing to the laches of the vendor ; and, therefore, the vendee ought not any longer to be held answerable. The bond of William Benner, it appears, became due on the 1st of January, 1786 ; and he died on the 10th August, 1793. It was generally reported, that he was, shortly before his death, entirely insolvent ; but that he left some personal estate, is certain. The vendor or assignee, brought suit on his bond, and obtained judgment against him, in the General Court, in May, 1793, on which a ca. sa. was issued, returnable to October, 1793. From (/) Kearslake v. Morgan, 5 T. R. 513; King r. Baldwin, 17 John. Rep. 381; Hayes v. Ward, 4 John. C. C. 123 ; Eddowcs v. Niell, 4 Ball. 133 ; Clark v. Young, 1 Cran. 192; Harris v. Johnston, 3 Cran. 311 ; Exparie Mure, 2 Cox. 63 ; Williams X. Price, 1 Sim. & Stu. 581. 108 HOFFMAN V. JOHNSON. thenceforward, as to this claim, the proofs are silent. There has been no offer to return this bond of Benner^s, or to assign the judg- ment against him to the vendee. From the lapse of time and all other circumstances, it may be presumed that this debt has been satisfied; or, if not, that it has been owing to the laches of the vendor ; and, therefore, in this instance, also, the vendee is entirely discharged from all further responsibility. Upon the whole, it thus appears, that the entire amount of the purchase money has been paid, or discharged in the manner agreed upon. And here this case might be closed, were it not, that the vendor, since he entered into this contract, has made a resurvey of these tracts of land, and included contiguous A-acancy ; and, that the vendee claims an allowance for deficiency in quantity. These matters must be disposed of; and they have presented the principal difficulties in the case. Shall not this resurvey, made by the vendor, at his own expense, after entering into this contract, enure, in all respects, to the benefit of the vendee ? Shall the claim of the vendee for an allowance for deficiency be sustained to the full amount, notwithstanding it has been made up, in part, by contiguous vacancy included imder the warrant of resurvey ? and, shall the vendor be now called on to refund, to the amount of the deficiency, not so made up by conti- guous vacancy, after the purchase money has been paid? The answers to these questions must be deduced from the peculiar rules of our law relative to real estate. It does not appear, that these questions have ever before been presented for judicial investigation ; the Chancellor is, therefore, without the aid of precedent. In this case the vendor, by his bond, dated 23d July, 1791, binds himself to convey to the vendee " the tracts or parcels of land called Foufs Delight j and The Resurvey on Beauty, containing four hundred and twenty-four and an half acres of land, more or less." By a resurs^ey, made in April, 1792, these tracts w^ere found to contain together no more than 384 acres ; but, by that resurvey, eighteen acres of contiguous vacahcy were included, making, in all, 402 acres in this resurveyed tract which was called " The Reunion,'''' leaving a deficiency of 222 acres, including the vacancy ; and of 40^ acres, if that addition is to be rejected. The claim for an allowance for deficiency was first made by the supple- mental bill, filed on the 15th of August, 1821 ; and, it is there made and designated by a reference to this return on the warrant of resurvey executed by and at the expense of the vendor. HOFFMAN V. JOHNSON. 109 Where lands are sold by metes and bounds, or in a body, by a designated name, number, or lot, without reference to quantity, in such cases, according to the English authorities and our own, no allowance is made for any deficiency ; unless on the ground of fraud, or misrepresentation. And where lands are sold by measure- ment, or by the acre, no mere question as to the deficiency can arise. But where, as in this instance, the specified tract is stated to contain so many acres, more or less, difficulties often arise as to the claim of an allowance for deficiency. The precise meaning of the words " more or less,^^ has been fixed by no decisions ; but the better opinion seems to be, that they should be restricted to a rea- sonable allowance for small errors in surveys, and for variations in instruments. Something, too, will depend on the proportion the deficiency bears to the whole tract. It seems to be difficult to fix a positive rule.(o-) But it is considered, that under all circum- stances, this is a case in which there is a fair ground for presenting such a claim for deficiency ; and therefore it must be investigated and decided. It has been long settled, that everj^ patent grant for land, from the State to an individual, binds the State to warrant and assure to the grantee,- and those who claim under him, that the tract described shall contain the number of acres specified. The remuneration for deficiency in quantity is not, however, pecuniary, (A) or made by (g) Townshend v. Stanjroom, 6 Yes. 340 ; Winch v. Winchester, 1 Ves. & Bea. 375 ; 1 Pow. Cont. 375 ; Land Hold. Assis. 253 ; Nelson v. Matthews, 2 Hen. & Mun. 164; Duval v. Ross, 2 Mun. 290. MuRDOCK V. Beall. — This was a creditor's bill, filed on the 7th of May, 1799, to have the real estate of Samuel Beall, deceased, sold to pay his debts. Sde decreed and made. The tnistee reported, that he had sold the tract of land called Exchange, supposed to contain 82Si acres, more or less ; that soon after the sale, it w"as discov- ered, that Walter Beall, who had conveyed to Samuel Beall, had retained fiftj' acres, for which he had made an allowance to the purchaser ; but, that the purchaser had caused the land to be sun'eyed, and had discovered, that, in the residue, there was a deficiency of nine and a quarter acres, for which he claimed an allowance. Upon these facts the case was submitted. 17ih February, 1S04- — Hanson, Chancellor. — As the whole of Exchange was intended to be sold, and afterwards a discovery Avas made, that fifty acres thereof had been retained by Walter Beall, it was proper in the trustee to make tlie purchaser an allowance for the said fifty acres ; because the deficiency was not of quantity, but in Exchange there was a defect of title. But, as to the nine and a quarter acres deficiency in quantity, the Chancellor is clearly of opinion, that the purchaser is Hot entitled to an allowance for that deficiency ; and not being entitled to that allowance, he cannot possibly be entitled to an allowance for the expense to which he has voluntarily put himself to shew the deficiency. (A) LandH-' *"=- '^\ no HOFFMAN V. JOHNSON, refunding the purchase money ; but it is made in kind, in other land warrants, or by an authority to take other vacant lands any where to the amount of the deficiency, (z) This warranty, or implied covenant, passes with the legal title of the grantee to his assignee, and all those who hold the legal title under him ; and is never extinguished until, after the amount of the deficiency hav- ing been ascertained, the legal holder has been satisfied by obtain- ing other land warrants, or has actually included other vacant land equal in quantity to the deficiency. Any legal holder, in order to ascertain the existence and extent of this claim against the State, may, of right, obtain from the land office a warrant of resurv^ey ; and take in any vacant land immediately contiguous to the original tract. The deficiency, thus ascertained, is directly set off, in the land office, against the vacancy included; and, if the vacancy amounts to as much, or to more than the deficiency, the claim against the State is fully satisfied ; but if less, then it is only satis- fied in part. (J) In these respects this general, but implied warrantry in every patent grant from the State, must be regarded as a peculiar, and beneficial incident, and privilege beginning, and associated with the legal title of the original grantee, and following that legal title firom him to all others, who claim under him, until it has been sepa- rated, and complete satisfaction has been obtained by a holder of the legal title, (/c) In this case, these tracts of land were deficient in quantity, and this incidental claim against the State, and the privilege of includ- ing contiguous vacancy, subsisted in full force at the time the con- tract was entered into between these parties. The vendor stipulated to make a good and legal title to these tracts ; tacitly, but clearly, including all incidents and privileges associated with the legal title. The vendor cannot be allowed to withhold any, then subsisting, beneficial incident to the legal title ; nor can the vendee be allowed to relieve himself from any burthen or responsibility by rejecting any incident to the title he contracted to receive. It is one of the chief purposes of a warrant of resurvey, issuing from the land office, to ascertain the existence and extent of this implied warranty ; and, where a deficiency exists, to make it up by taking in contiguous vacancy. It is true, that under such a warrant, the party may take in any contiguous vacancy, not only (t) Land Hoi. Assis. 473.— (j) Land Hoi. Assis. 319, 46S, 480, &c.— (/c) Land Hoi. Assis. 153. HOFFMAN V. JOHNSON. m to the amount of the deficiency in the original ti'act, but to a much greater extent. Whether the vendor can be permitted, considera- bly, or in any degree, to enlarge the tract of land by a resurvey after the contract of sale is entered into, and can compel the purchaser to take and pay for such addition, is another and a ver}' different question from that under consideration ; and one which it will not now be necessary to determine. But, in this case, the vendor, after ascertaining the deficiency, has supplied it, only in part, by the addition of contiguous vacancy.-. This mode of making up the deficiency subsisted as an incident to the legal title at the time the contract was entered into by these parties. The vendee, therefore, cannot be now permitted to reject this incident, and claim a deduction for these acres of vacancy, leaving the vendor to hold them as his separate estate. If the vendor were not allowed, in this way, to make up the deficiency, then the vendee would obtain the original tract together with, or divested of this privilege of including these eighteen acres of con- tiguous vacancy. In the first case, he might obtain them, by means of his legal title, without paying for them ; or on the other hand, the vendor might have cast upon him a small inconvenient scrap of land, which, fi'om its situation, would be alike unsaleable and unprofitable, unless in connexion with one or other of the immediately adjacent tracts. But these eighteen acres have been obtained from the State by the vendor as the holder of the legal title to the original tracts, by virtue of a privilege incident to that title, and as immediately contiguous to those tracts; they must, therefore, pass from the vendor to the vendee as connected^ with, and parcel of those tracts ; and consequently, these tracts are not, so far, deficient. As to the residue, or the deficiency of twenty-two and a half acres, it is now too late to claim an allowance for them, after the whole amount of the purchase money has been voluntarily and fully paid. Under all the circumstances of this case, the vendor cannot now be called on to refund any part of the purchase money. It appears, that the equitable interest which George Schnertzell had obtained from the holders of the legal title has been fully and entirely transferred to, and is now vested in JoJm Hoffman, one of the plaintiffs. And the representatives of the parties to the origi- nal contract,' having been all of them made parties to this suit : Decreed, that the defendants, by a good and sufficient deed made, executed, and acknowledged according to law, translier and 112 BURCH v. SCOTT. convey unto the plaintiff, John Hoffman, his heirs and assigns, in fee simple, all those several tracts of land in the proceedings men- tioned, called " Pout's Delight," and " The Resurvey on Beauty," and all their interest in that other parcel of land included by a warrant of resurvey on those tracts under the name of " The Reunion." And it is further decreed, that Henry Hoffman is hereby constituted and appointed trustee, under the last will and testament of the late James Hunter ; and that he, by a good and sufficient deed, executed and acknowledged according to law, convey unto the complainant, John Hoffman, all the legal title of, in and to the said tracts of land. And it is further decreed, that the defendants pay unto the complainants their costs, to be taxed by the register. BURCH V. SCOTT. Where a party admitted, that he had obtained a decree by default for more than was due ; and did not allege, that he had since lost any of his testimony ; and it appeared that the defendajit had negligently omitted during a space of about five months to put in his answer ; but averred by biU on oath, that he had a good and available defence on the merits ; the decree was set aside, and the defendant let in to answer on payment of costs. All orders and decrees in Chancery may be altered, revised, or revoked during the term at which they have been passed, on motion or petition ; but after the term, the party can only obtain relief by original bill or bill of review. Relief agsdnst a decree obtained by fraud can only be obtained by original bill, not by a mere bill of review. A decretal order, in England, is most commonly that which is drawn up as the sub- stance of, and as preparatory to a final decree ; and it may in some respects be enforced as a final decree. Here no such decretal order is ever made. A bill of review lies after the decree is signed and enrolled, and it is considered as enrolled after it is signed by the Chancellor and filed by the register. Restrictive orders staying the court's own decrees treated as injunctions. A bill of review, or the like, does not of itself operate as a suspension of the execution of the decree complained of. It is Stated in the bill, which was filed on the 14th of July, 1823, that in the year 1803 Jesse Burch died intestate, and that administration on his personal estate was granted by the Orphans Court of Washington county, in the District of Columbia, to his widow, Jane Burch, who took possession of his personal estate accordingly : among which personalty were three negro slaves, as mentioned in the inventoiy returned by her ; that since the death of the intestate, Jesse, those negroes had several children ; that BURCH V. SCOTT. n^ tlie administratrix, Jane Burch, having died intestate, letters of administration on her personal estate were granted by the Orphans Court of Washington countj-, in the District of Columbia, to TJwmas Burch; and on the same day, and by the same court, administration de bonis non of the effects of the late Jesse Burch^ was granted to tlie same Thomas Burch ;{a) that it had not been found necessaiy to make sale of those negroes to pay the debts of the late Jesse Burch; but, owing to the conduct of one of the sureties in the administration bond, Kinsey GitiingSj they remained as a part of the surplus of his personalty to be distributed among his next of kin ; that those negroes, with their increase, had been taken out of the possession of the late administratrix, Jane Burch, by Kinsey Gittings, and held by him during his life, and after his death had passed into the possession of William Scott, " who claimed to hold them in virtue of letters of administration granted to him upon the estate of Kinsey Gittings,^^ and he had actually sold them in October, 1818, and received payment for them, amounting, as appears by his return of the sales, to $2850 ; " which, with interest and a reasonable'compensation for their services while in his possession, and in the possession of Gittings, the plaintiffs were justly entitled to demand of this defendant; that the defend- ant was about to distribute the money so received by him as a part of the assets of his intestate Gittings.''^ Upon these circumstances this suit was instituted by Thomas Burch, as administrator de bonis non of the late Jesse Burch, and in his own right, together with Jesse Burch, Fielder Burch, Mildred with her husband James Johnson, and Kitty with her husband John Stephens ; which Thomas, Jesse, Fielder, Mildred, and Kitty, are the children, and next of kin of the late Jesse and Jane Burch, against William Scott alone. The plaintiffs prayed to have the defendant, Scott, considered as a trustee for their benefit ; that a distribution of the negroes, or the proceeds of the sale, might be made among them ; and that the defendant might be restrained by injunction (a) Upon letters granted in the District of Columbia, the executor or administra- tor is, by the act of 1S13, ch. 165, authorized to sue here ; although upon such letters granted here, he cannot sue there, 1 Cran. 259. But no suit can be sustained here by any one, on letters of administi-ation granted in a foreign country ; 1 Hayw. 355 ; 3 Bac. Abr. 36 ; Miif. PL 155, ; MoUinson v. Bowley, MS. 1806 ; or in any one of the States of this Union, 3 Cran. 319; 9 Cran. 151; Kirk v. Brmm, MS. 1818. But the act of 1815, ch. 149, s. 4, authorizes the revival of an action at common law against an executor or administrator, to whom letters have not been granted here, and who "resides out of tliis State." 15 114 BURCH V. SCOTT. from parting \\'ithj or paying over the proceeds of the sale of those negroes. An injunction bond was filed ; but, from its not having been, as usual, noted as approved by the Chancellor, it would seem to have been deemed unnecessary in this case. An injunction was granted, issued, and served. A subpana was issued returnable to September term, 1823, and returned served. The defendant not appearing, an attachment was issued returnable to December term, 1823, and returned attached ; and it was then renewed and returned attached to March term, 1824, when the following order was passed, ^Oth March, 1824. — ^Johnson, Chancellor. {h) — In this cause the defendant being returned attached for not appearing to the bill of complaint filed by the complainants ; and the said defendant not having appeared, upon motion of the complainants by their solicitor ; it is this 30th day of March, 1824, ordered, that the said defendant, either in person or by his solicitor, put in a good and sufficient answer to each interrogatory contained in the bill, or a plea or demurrer to the same, on or before the 4th day of July term next of this court, or otherwise the Chancellor, upon application of the complainants, and at discretion, will either take the bill pro confesso, or direct a commission to issue for taking depositions, and will finally decree as to him shall seem meet and consistent with the established principles of equity, in the same manner as if the said defendant had appeared and depositions had been taken in the usual way. Provided a copy of this order be served on the said defendant, or left at his usual place of abode, before the 20th day of June next. After which, this order having been returned served, the case was brought before the court for further proceeding. %th July, 1825. — Bland, Chancellor. — The bill having been taken pro confesso, on motion of the complainants' counsel, it is ordered, that a commission issue to Zadock Magruder of Mont- gomery county in this State, and also to John A. Smith, of the city of Washington, to take testimony in the cause. The commission to Smith was returned with testimony, and j&led on the 3d of August, 1825, and that to Magruder was returned ■with proofs and filed on the next day. (b) The terms and form of this order were adjusted, by Chancellor Hanson, according to the provisions of the act of 1799, ch. 79, s. 2; in the case of AValsh & others v. Delassere fit others, 19lh February, 1800, and it has been followed ever since. BURCH V. SCOTT. 115 4//i August, 1825. — Bland, Chancellor. — Ordered, that this case be, and the same is hereby referred to the auditor, with direc- tions to state an account from the proceedings, shewing the hires of the said negroes, with which the said late Kinsey Oittings was chargeable, from the time they came into his possession and were demanded of him, until they were sold by his administrator, and the amount of sales of said negroes, and the interest thereon from that time. The auditor on the same day made a report, in which he says, that he had stated an " account shewing the amount of sales of the negroes, and the interest thereon from the time they were sold ; but that he finds nothing in the proceedings from which he can state an account shewing the hire of the said negroes, with which Kin- sey Gittings was chargeable from the time they came into his pos- session and were demanded of him, until they were sold by the defendant as his administrator." Upon which the case was imme- diately submitted without argument. 4th August, 1825, — Bland, Chancellor. — Decreed, that the report of the auditor be confirmed, and that the defendant, William Scott, forthwith pay to the complainants, or bring into this court to be paid to them, the sum of $4006 15, with interest on $2850, part thereof, from the fourth day of August, 1825, until paid or brought in as aforesaid. On the 22d of September, 1825, the plaintiffs, by their petition, •applied for a Jiei'i facias, which was immediately ordered and issued to the sheriff of Montgomery county, which writ was endorsed thus, " complainants release DoU. 392 90|." On the 15th of November, 1825, William Scott, together with Berry Gittings, Michael Gittings, Richard Gittings, Sarah Git- tings, an infant by her guardian and next friend, and Jeremiah Gittings, also an infant by his guardian and next friend, filed a bill, which they style, " their supplemental bill in the nature of a bill of review," in which they recite all the proceedings in the before mentioned case. They state and object to those proceedings and the decree there- upon, that under the commission to Smith, three witnesses were examined, who " accordinir to the tenor of the return were no otherwise sworn, but severally and respectively to depose and tes- tify according to the best of their knowledge and belief, and are IIQ BURCH r. SCOTT. not authenticated by the signature of the witnesses ;" that by the return of the commission to Magruder, it appears that one witness was examined, not on oath, but on affirmation, neither the form, nor the terms of which are set forth, nor has the witness signed his deposition ; that this plaintiff, William Scott, is the administrator of the late Kinsey Gittings, and the other plaintiffs are his children and next of kin, who as such are the persons really and exclusively interested in the matter in controversy, and ought to have been made parties to the suit, in which the decree of the 4th of August, 1825, was passed. Instead of which this plaintiff, Williain Scott, alone was made defendant and charged by the decree, in that case, in his own proper person, although he could only be held liable, if at all, as administrator of the late Kinsey Gittings, being as such no more than a trustee for his creditors and next of kin. They further state, that, from certain judicial proceedings and other circumstances, it appeared, that this plaintiff, Willia7n Scott, was entitled to various credits, which had not been given, and an ex parte decree had been obtained by Thomas Burch, and others, in that case, for a sum greatly exceeding their just due, by their fraudulently concealing the proper sets off and deductions, some of which they had all along admitted, and others were clear and indisputable. And they further state, that this plaintiff, William Scott, was frequently, and contrary to his anticipations and expectations, dis- appointed in having the business put in train for a decision ; he at length became so anxious and uneasy on the subject, that, hearing of his counsel being in attendance at the Court of Appeals at An- napolis, at the June term of 1824, he came from his home in Montgomery to Annapolis, for the express and only purpose of having an interview with his counsel, and getting his answer draw^n, and filed, &c. But he found his counsel on the eve of returning to Washington, whither he accompanied him, and imme- diately on their amval, the answ^er was drawn, regularly sworn to, and put into the hands of his counsel, to be transmitted by the stage next morning, to the register of this court; that he had frequent interviews afterwards with his counsel on the subject ; he as well as his counsel, took it for granted, the answer and exhibits had been duly received ; and he was informed by his counsel, that he had made an arrangement with Mr. Key, one of the opposite counsel, who resided in Georgetown, to fix upon some day conve- nient for them both, to go to Annapolis and argue the cause ; and BURCH V. SCOTT. 117 this plaintiff, William Scott, remained under this impression, with- out the slightest intimation of the answer's having miscarried, till, to his utter astonishment, he found there had been a decree against him, followed by execution : and when he communicated to his counsel the fact of his property having been seized by the sheriff, he was utterly at a loss to comprehend how it could have, been brought about ; having only heard, a short time before, of the mis- carriage of the answer, and not dreaming that there could have been a decree, till writing to the register of this court for informa- tion, he was certified of the fact. Walter Jones, the counsel of William Scott, in an affidavit made by him and filed with this bill, confirms what is stated by Scott, as to his being called on at Annapolis, and followed to Washington, where he states, that Scott remained with him until he had drawn his answer, and it was sworn to by him, before a magistrate; — that finding the package so large as to make the transmission of it by mail very expensive, he, Jones, sent his servant to the stage office to inquire whether there were any passengers for Annapolis in the stage of the next day ; who returned with an answer, that he had found a gentleman who would take charge of the packet ; upon which he delivered it to him very securely sealed up, and directed to the Register of the Court of Chancery at Annapolis ; with a note, requesting him to file the answer, &.c., and enter a notice to dissolve. He does not recollect that his servant named the person to whom he delivered the packet ; if he did, he has forgotten it. He had frequent conversations afterwards vrith Mr. Key, about ap- pointing a day mutually convenient for them both, to go to Anna- polis to argue the cause. He rested without doubt or apprehension of the answer's being regularly filed, and does not remember when he experienced so great a surprise, as vvhen he heard of the decree in the cause. These plaintiffs, by this bill, pray, that this plaintiff, William Scott, may be permitted to put in his original answer, plea, &c. to the original bill, &c., and that these other plaintiffs may be admitted as parties to the proceedings, as they are parties in interest, and to answer and defend, &c. ; that the case may be heard upon all and singular the allegations, matters and things in this their supple- mental bill, in the nature of a bill of review, alleged and contained, at the same time, that it is re-heard upon the original bill; that these plaintiffs may be restored to their original situations respec- tively, before the issuing of the commission and the making of the 118 BURCH V. SCOTT. said decree ; that the said decree may, by the order of this court, be opened for such re-hearing; that the execution of the same may be suspended, and the said fieri facias countermanded by the like order of this court ; and that in general they may be relieved according to the equity and nature of their case, &c. And in con- clusion, a prayer for suhpcena against the plaintiffs to the original biU, &c., and an order of publication against those of them who are non-residents. IQth JS'ovember, 1825. — Bland, Chancellor. — On hearing the complainant's counsel, and considering the aforegoing bill, together with the affidavit of the complainant's counsel therewith filed ; and the said William Scott having filed his bond with surety, approved by the Chancellor, to abide by, and fulfil the order of this court in the premises : — -it is ordered, that subpoenas issue, and publication be made, as prayed by the said bill. And it is further ordered, that all further proceedings, in execution of the said decree of this court, of the fourth day of August last, be, and the same are hereby enjoined, suspended and countermanded, until the further order of this court, as prayed by the foregoing bill. On the 3d May, 1826, the defendants, Thomas Burch and others, filed their answers, in which they admit, that their counsel had been informed, shortly after the serving of the order of the 30th March, 1824, that William Scott had filed his answer, and that it had been proposed, that a day should be fixed on to go to Anna- polis to try the cause ; that their counsel wrote for a copy of Scotfs answer, and was informed that it had not been filed, which infor- mation he communicated shortly afterwards, to Mr. Jojies, the counsel of Mr. Scott; that the same fact was again, after a, con- siderable interval, communicated to Mr. Jones, and also to William Scott himself. And they further admit, " that there ought to have been a credit entered for the sums mentioned in the decree of the Orphans Court of Washington county, and which were to be returned to Kinsey Gittings, on his giving up the property; or rather, that the defendants were willing to admit a credit for those sums, though, as they were tendered to Gittings in his lifetime, and also to Scott, since his death, when the negroes were demanded of him, and compliance with the said Orphans Court's decree required, and they refused then to receive the same and give up the negroes, and have since put the defendants to very great expense in recovering their claim, they might well have been justi- BURCH V. SCOTT. 119 fied in refusing to allow such credit. And they state, that a credit for $392 90, the amount of those two sums, and interest upon them, was endorsed on the Jieri facias, issued on the said decree, and the balance only was required to be made by the said execu- tion, which balance they aver they are justly entitled to, and that no other deduction or discount ouofht to be allowed against the amount of the claim, as stated in the said decree." And they fur- tlier deny all fraud, &c., asalleged in the bill, &c. These defendants, Thomas Burch and others, by their petition allege, that the plaintiifs, William Scott and others, had issued no subpaenasj nor applied for any order of publication against these defendants, who are nonresidents, as prayed by their bill ; that they, on learning that such a bill had been filed, have answered thereto ; and now pray, that the order of the 16th November, 1825, may be revoked. 4th May, 1826. — Bland, Cliancellor. — On the foregoing appli- cation it is ordered, that the order of the 16th of November last be dissolved and revoked, unless cause to the contrary be shewn on the fourth day of the next term. Provided a copy of this order, together with a copy of the foregoing petition, be serv^ed on the complainants or their solicitor, on or before the first day of June next. A copy of this order having been served as required, the case was afterwards brought before the court for its determination. 2bth July, 1826. — Bland, Chancellor. — This case standing ready for hearing, on the notice given in pursuance of the order of the 4th of May last, and the solicitors of the parties having been fully heard, the proceedings were read and considered. The Chancellor feels every disposition to relieve this case from all embarrassing forms, and to reach its merits, if practicable. It will, therefore, be necessary to disengage the complainants' sub- stantial equity and object from the forms with which they have been clothed ; and to examine their bill with a due regard to their equity and object. The substance of their complaint is, that a decree has been obtained against one, which materially affects all of them, erroneously ; by fraud ; by surprise ; for much more than is due ; or, to say the least, improperly and to the exclusion of a good and available de- fence. And upon the truth of these allegations, they ground their equity to have the decree of the 4th of August last set aside, their undenied credits allowed, their defence let in, and the matters in 120 BURCH V. SCOTT. controversy heard upon the merits. This is the object, and the mode chosen by them to attain it, is, by what they call " a supple- mental bill, in the nature of a bill of review." Whatever may be the cause of complaint, the party asking relief must conform, at least in substance, to prescribed rules as to time and manner. It has been the long estabhshed usage and law of the Court of Chancery, to consider all its orders and decrees, as completely within its control and open to be altered, revised, or revoked during the whole term at which they are passed, on motion or by petition. But, if the term is suffered to elapse, the party can only obtain relief by original bill, or by a bill of review, (a) This law of this court is analogous to that which has been adopted by the courts of common law ; and which has been found alike salutary in both. It is believed there is no decision of the Court of Appeals, which has directly or distinctly restricted or altered this rule of the Court of Chancery. But in this case, the bill of these plaintiffs was not filed until long after the close of the term at which the decree was signed. It cannot, therefore, be considered as entitled to the same indulgence, or as standing altogether on the footing of a petition, for a re-hearing, or alteration, or opening of a decree, filed during the term at which the decree was signed. This bill charges, that the decree of the 4th of August last was obtained by fraud. It is the peculiar province of this court to grant relief in all cases against fraud and accident, not within reach of the courts of common law ; and a decree obtained with- out making those parties, whose rights are affected by it, is, as to them, fraudulent.(6) And there can be no case of fraud, in w^hich it would be more fit and proper for this court to interfere, than upon a charge, that its own decree had been obtained by fraud. Such a case is, however, brought before the court, not by a bill of review , but by an original bill.(c) And in that light, the allegations of this bill require the court, in some respects to consider it. In the Court of Chancery of England, the Chancellor, it seems, after the hearing, pronounces the substance of his decree orally, (d) minutes of which are taken down by the register, who afterwards draws them out into the form of a decretal order ; and if, in doing so, any mistake should occur, the execution of the order may be (a) Mussel v. Morgan, 3 Bro. C. C. 74 ; Cameron v. McRoberts, 3 Wheat. 591. — (6) Gitfard v. Hort, 1 Sclio. &. Lefr. 386.— (c) 1 Mont. Dig. .345.— (' Co., merchants of London, to amount of sixteen thousand pounds, sterling money, or thereabouts ; which bUls it is believed have been accepted, but the periods for their payment not having yet arrived, it is not known whether the said bills will, or will not, be paid at maturity. And whereas John Bell, of Petersburg, in the State of Virginia, merchant, one of the per- sons composing the aforesaid house of William &>' John Bell ^' Co., by his letters in behalf of himself and of his aforesaid house, bear- ing date at Petersburg aforesaid, the tenth day of November last, and addressed to the said Marcus Heyland, stating that he had transferred and made over all the amount due by the said Heyland for the goods which the said house of William ^ John Bell ^ Co. accepted to pay on his account, to Hugh Thompson of the city of Bakimore, merchant, — did request the said Marcus Heyland to notice the same, and to account with the said Hugh Thompson, therefor, accordingly : thereby stipulating that his, the said Hugh Thompson'' s, receipts or discharges of any kind should be valid against the said John Bell, or the house of William 4* John 152 McKIM V. THOMPSON. Bell, or the house of William §' John Bell ts Co., to the full amount of what the said Marcus Heyland might owe or stand indebted to the said house. Mow these jtresents therefore wit- ness, that in consideration of the premises before recited, the said Marcus Heyland doth hereby acknowledge himself, his heirs, executors, and administrators, to be and stand bound unto the said Hugh Thompson, his executors, administrators, and assigns, in and for such balance, or sum of money as shall or may be found to be due, or owing from the said Marcus Heyland to the aforesaid house of William ^' John BellSf Co., on account of the transaction before alluded to, or otherwise, to the time of executing these pre- sents ; and doth hereby covenant and agree to and with the said Hugh Thompson, that he, the said Marcus Heyland, shall and will immediately after the execution of these presents, proceed to account with the said Hugh Thompson for, and pay to him, the amount of the aforesaid acceptances, in the same manner as if it were ascer- tained that they had been duly honoured and paid by the said William §' John Bell 4* Co. ; and the said Hugh Thompson doth hereby covenant, and oblige himself and the said house of William ^ John Bell ^ Co., in pursuance of the authority vested in him for that purpose, to allow to the said Marcus Heyland the benefit of the current exchange, on all payments made by him on the account aforesaid ; and further doth hereby bind and oblige himself to indemnify the said Marcus Heyland from and against all claims and demands, that may be rightfully made against him for, or on account of the said acceptances, either by the said William ^ John Bell ^ Co., or by the respective holders of the said acceptances, to an amount equal to the sum w^hich may be paid over to the said Hugh Thompson in virtue of this arrangement. In testimony whereof the said Marcus Heyland and Hugh Thompson have here- unto subscribed their names and affixed their seals, on the eighth day of January, in the year of our Lord one thousand eight hundred and eleven." It further appears, that, subsequent to these agreements, Heyland did, at various times, between the 5th of March and the 13th of September, 1811, pay to Thompson, the sum of ^£8889 bs. 4c?. sterling ; that the bills, drawn by Heyland, had been protested for non payment, and then remained unpaid. And it further appears, that, some short time before April, 1812, Heyland failed, and obtained the benefit of the insolvent laws of this State ; and that John McKim, jun^r, and Thomas L. Emory, junh; were appointed McKiM V. THOMPSON. I53 trustees for the benefit of his creditors, to whom he conveyed all his property accordingly. Upon these circumstances, the trustees, McKim and Emory^ together with The British Copper Company^ and others, holders of the bills drawn by Ileyland, on the 22d of September, 1812, instituted this suit against Hugh Thompson and John Belly the surviving partner in this country of William ^' John Bell ^ Co. They alleged, that the sums of money received by Thompson from Heyland, as shewn by their exhibit E, amounted to the sum of ^£8889 bs. 4d. sterling ; and prayed, that Thompson might be decreed to pay over to the trustees, McKim and Emory , for the benefit of the bill holders, and others, the creditors of Heyland^ the amount received by him : and for general relief, &c. On the 27th February, 1813, the defendant, Hugh Thompson, filed his answer, in which he admits, that the bills drawn by Heyland, were accepted as stated ; that the agreement of the 20th November, 1810, and that of the 8th January, 1811, were made and executed as stated. And he then answers in these words : — • *' This defendant avers, that the said agreement, bearing date the 8th .January, 1811, was executed at the instance of Heyland ; but this defendant denies that it was the intention of the said ajrree- C) ment, or the understanding of the parties, or of the counsel employed by them to reduce it into form, that Heyland should be entitled to indemnity, unless his payments to defendant should exceed the debt which should be actually due from Heyland to the house of Bell ^' Co. The true purpose of the agreement being, that as Heyland did not exactly know the amount wyhich Bell ^ Co. had paid, or might pay for him, he should be secure of a restoration from this defendant of the surplus of his payments, if any such there should be ; and the language of the agreement does, as this defendant apprehends, indicate, with sufficient explicitness, that object, which only this defendant could have had any rational motive for acceding to, or the said Heyland could, with any appear- ance of justice or propriety, propose to him." And this defendant further answered, in these words : " That he does know Marcus Heyland to be insolvent, and a bankrupt ; that he has reason to believe, that the affairs of the house of William ^ John Bell &• Co. have been, and continue to be, somewhat deranged. But he is well informed, that the high and improving prices of American produce in England, in consequence of the war 20 154 McKIM V. THOMPSON. between that country and the United States, have greatly restored the declining affairs of that house. Defendant did receive from Marcus Heyland the sum of money mentioned in complainants bill. Defendant did enter into certain agreements with Heyland, as heretofore explained in this answer. That at the time the money was paid into his hands by Heyland, defendant did not ' expect it would be appropriated to the payment of Heyland' s creditors in England. Defendant denies, that said money was a deposit in his hands for the use and benefit of Heyland's creditors in England." On the 16th of July, 1821, the defendant, John Bell, filed his answer; in which he admits, in substance, all the circumstances as set forth by the plaintiffs ; and insists, that the money paid over by Heyland to Thompson, under the agreement of the 8th January, 1811, was intended to be, and should be, first applied in satisfaction of those bills drawn by Heyland. The plaintiffs, by their petition, referring to the previous pro- ceedings, by which it appeared, that the defendant, Thompson, had received from Heyland, (who was then dead,) the sum of JE8889 5s. M. sterling, for the benefit of the plaintiffs, prayed, that he should be ordered to bring that sum, with interest, into court, to be applied and distributed under the direction of the Chancellor. 14ih December, 1822. — Johnson, Chancellor. — Ordered, That Hugh Thompson, the trustee in the petition named, bring into this court the sum of money mentioned, on or before the 15th day of January next, or shew good cause why the same should not be brought in : Provided a copy of the petition, and of tliis order, are served on him before the last day of this month. It appears that the service was made as required. \Oth May, 1823. — Johnson, Chancellor. — On the application of the complainants, it is Ordered, that on the hearing of the motion made for the purpose of compelling the defendant to bring money into court, that'depositions tfken before a Justice of the Peace of Baltimore, on three days' notice, be read in evidence ; and, that the complainants be at liberty to prove the contents of any original paper or papers, as well as the entries contained in a book or books in the possession of the defendant ; the defendant having first had notice, in writing, three days before the evidence is taken, to McKIM V. THOMPSON. I55 produce such paper or papers, book or books : and that the motion be heard during the next terra. Under this order, proofs were collected and returned. The hearing of this matter was, by consent, or from other causes, from time to time postponed. The defendant, Thompson, having pre- pared and sworn to a supplemental answer on the 21st February, 1823, moved for leave to introduce it at once into the case, without shewing why the matter, therein stated, had not been set forth in his original answer ; but he was not allowed thus to file it. After- wards, on the 31st of January, 1825, the defendant, Thompson^ filed a petition, on oath, in which he stated, that he had, through inadvertence in one instance, and for want of a knowledge of some facts, in other respects, as to which he had since obtained full information, misstated several circumstances in his answer, all of which he prayed leave to correct by a supplemental answer. No order was passed on this application ; but, soon after it was filed, the parties were heard on the order of the 14th of December, 1822. 12th February, 1825. — Bland, Chancellor. — The arguments of counsel, on this petition, to obtain an order commanding Hugh Thompson to bring a certain sum of money into court, have been heard and duly weighed, and the proceedings in the cause have been attentively read and considered. This practice of ordering money to be brought into court, is one of very late origin. Lord Eldon is reported to have said in 1803, " I remember when the practice was introduced of making a defendant pay in money, appearing, by his answer or examination, to be in his hands. "(a) But it seems to have been attended with so many beneficial consequences, to have been so often resorted to, and so many of the cases have been reported, that the principles of the rule by which the court is now governed may be considered as fairly and fully developed. In the investigation of the principles applicable to this petition or motion, as indeed in relation to every other legal inquiry', we should particularly bear in mind, that it is the reason and spirit of cases make the law ; not the letter of particular precedents. (&) It is held to be a fundamental axiom, that the judgment of a court must be the conclusion of law arising from the facts presented (a) Mills V. Hanson, S Ves. 91 ; Gilb. For. Rom. 179.— (6) Fisher v. Prince, 3 Burr. 1364; Doe dem. Lancashire v. Lancashire, 5 T. R. 62. 156 McKIM V. THOMPSON. to it. And in the application of this maxim, there is nothing peculiar in the character of the court, or in the mode of judicial proceeding, by which it can be at all affected or varied. It is a fundamental principle applicable to all courts, and from which none are allowed to depart. The judgment of a court of law is the legal result of the facts admitted by the parties, or found by the jury : and so too, the decree of a court of chancery is the result, according to principles of equity, arising from the facts found in the bill, answer, proceedings and proofs. Such is the acknoM'ledged foundation of all fmal and general judgments or decrees. (c) But interlocutory orders and decrees affecting rights, must, so far as they go, have a similar basis ; because, no court of judicature can arbitrarily make a partial, any more than a total disposition of the rights of things or persons, without such a foundation. The judge can go no farther than to apply the rule to the case, or to pronounce the law upon the facts, either partially or wholly. It is of the veiy nature of judicial power to be so limited. It is, how- ever, of no importance, as regards this principle, how the facts are made to appear, or in what shape they are presented to the tribunal ; whether by confession ; by arithmetical calculation ; by necessary deduction ; or by positive and direct proof. It is enough that the facts are so placed before the tribunal as to preclude all further denial of them. The court may then be called on, in cases like this, to pass an order, or, in other words, to pronounce the equity resulting from the facts. Such are the elementary principles. Let us now brins them near to the case under consideration. In cases of this sort, it is not necessary that the party moving for the order, should shew an unquestionable right to a part, or to the whole of the money proposed to be called in. It is enough, that he shews an interest in the safety and fmal disposition of the funds. The general rule is, that the plaintiff is solely entitled to the fund, or has acquired, in the whole of it, such an interest, together with others, as entitles him, in his own behalf, and the behalf of those others, to have the fund secured in court, (d) A motion, by a party interested, to order money to be brought into court, can only be founded upon the allegation, that the clear conclusion of law from the fact is, that the person, proposed to be called on, has no right or title whatever to hold the money of which he has the possession. And, therefore, the first inquiry is, are there (c) Gilb. For. Rora. 3.5.— (rf) Freeman v. Fairlie, 3 Meriv. 29. McKIM V. THOMPSON. 157 any facts, then to be found in the cause, warranting such a con- clusion ? and next ; if there are, can the party be allowed, at any future stage of the proceedings, to contradict, or explain them away? It is not necessary to shew, that the person called on is a mere trustee, without any legal control over the fund : it is sufficient, if it appear that he has no equitable right or title to the money he is called upon to produce. As where an executor admitted a balance in his hands, but alleged, that an action at law was then depending against him, and insisted, that the fund should not be taken out of his hands while he so remained liable to be called on. But the court ordered in the whole balance ; and, on a recovery being had, the money was ordered to be paid to the plaintiff in the action, and not to the executor. (e) It is said, in the books, that orders of this kind were originally confined to cases where the facts were expressly admitted in the defendant's answer. It is easy to imagine, that their propriety was originally suggested by cases of that obvious and unequivocal character ; but the court, having been made acquainted with their beneficial consequences, soon perceived the principle on which they were based ; and in a short time threw aside the anomalous and technical notions about the necessity of finding the facts expressly admitted in the answer. In the case of Freeman and Fairlie,{f) which was so cogently pressed upon the attention of the court by both parties. Lord Eldon says, " I think it right to say that, under all circumstances^ I can take the personal estate to have been in 1791, ^£2000, and that I may add the accumulations to 1812 ; hut I have not in this answer any distinct admission, that he has laid out the money in East India securities, in such a way as to enable me to ascertain and order him to bring in what is the fair amount of the personal estate." And in conclusion, the Chancellor ordered the defendant to bring in the sum of j£3680 ; whence it is clear, that he felt himself at liberty to go as far in pronouncing the conclusion of law from the facts, as those facts were then, and in that stage of the case, established, and open to no contradiction or explanation in the course of the subsequent proceedings. For, although the Chancellor took much pains to shew, that the defendant had, by (€) Yare i'. Harrison, 2 Cox. 377; Mortlock r. Lcathes, 2 Meriv. 491; Strange D.Harris, 3 Bro. C. C. 365 ; Blake v. Blake, 2 Scho. 8c Lefr. 26; Rutherford i-. Dawson, 2 Ball &. B. 17 ; Yates v. Farebrother, 4 Mad. 239 ; Johnson v. Aston, 1 Sim. & Stu. 73 ; Rothwell v. Rothwell, 2 Sim. &. Stu. 217.— (/) 3 Meriv. 29. 158 McKIM V. THOMPSON. his own answer, covered himself with shame ; yet the order went no further than the incontrovertible facts would fairly warrant ; or, as the Chancellor says, "under all circumstances." Hence, if the statements, allegations, and then situation of the case, in relation to the motion, are of such a nature as to leave the matter open to be affected by the proofs to be adduced at the final hearing, the court cannot pass any interlocutory order or decree whatever on the subject. (g") But in the case of Freeman and Fairlie, the facts appear to have been deduced, under all circumstances, from the answer itself The first step taken to find facts beyond, but in the immediate precincts of the answer, was, where a schedule was referred to in the answer as containing a correct statement ; the items of which schedule, if added up, would shew the sum admitted to be due. Such a form of admission was, therefore, held to establish the facts as unequivocally as if the sum had been distinctly specified in the answer itself. This position necessarily comprehended another case, going apparently one step further, but which was, in fact, precisely the same in principle ; that is, where the party referred in his answer to, and produced a set of books of account, and alleged, that they contained a true statement of facts. If, on referring them to the auditor, he reports, that they shew a certain amount to be in the defendant's hands, it will be considered as an indirect, but sufficient admission of such fact ; and the court will order the money to be brought in. (A) But, if no distinct fact can be deduced from the answer itself, laying a foundation for such a motion, and the case is referred to the auditor, and the party, on his examination there, makes admissions of such facts, they will be considered as binding and conclusive as if made in the answer itself So much, then, for the direct and indirect statements and admissions of the party himself (i) There are other cases, which shew that the court has gone much further with the principle, and distinctly manifested a dispo- sition to follow it out in all its bearings. For, where a controverted case of accounts had been referred to the auditor to adjust, and the parties had there fully contested the matter, and the report of the (?) Strange v. Harris, 3 Bro. C. C. 365 ; Peacham v. Daw, 6 Mad. 98.— (/t) Mills V. Hanson, 8 Ves. 68, 91 ; Hatch v. , 19 Ves. 116 ; Wood v. Downes, 1 Ves. & Bea. 49 ; Roe v. Gudgeon, Coop. Rep. 304.— (i) Quarrell v. Beckford, 14 Ves. 177; Vigrass v. Binfield, 3 Mad. 62. McKIM V. THOMPSON. 159 auditor shewed a balance in the defendant's hands, to which he was not entitled : in such case, after the time allowed to except to it, had expired ; and after it had been confirmed, an order was granted to have the money brought into court.(j) And this not on the ground of any admission of the party ; for the truth might have been, that he contested every item and every point before the auditor ; but upon the ground, that the court was presented with facts in that stage of the case, which had been established in a due course of judicial proceeding, which could not thereafter be, in any manner, questioned or denied by the same party ; for an order confirming a report of the auditor is, in this respect, a judgment of the court. (A:) The objects and inducements for making an interlocutory order, or partial decision of this kind, are to remove the fund out of danger ; to place it in a state of the greatest security for the benefit of all concerned ; and, by circumscribing the field of controversy, to accelerate the further progress of the case, and save costs ; since it is evident, the parties will spin it out while they have the advan- tage of keeping the money. (Z) Hence it appears, that those who make this motion, must shew, that, however much more may be due, they have an interest in the sum of money proposed to be called in ; and that he who holds it in his possession, has no equitable right or title to it whatever. And the facts on which these positions are to be based, must be found in the case as it then stands, either admitted, or so estab- {j) Gordon v. Rothley, 3 Ves. 572 ; Fox v. Maclcreth, 3 Bro. C. C. 45. {k) Brown v. Barkham, 1 P. Will. 653. Taylor V.Wood — 25th July, 1815. — Kilty, Chancellor. — The report of the auditor in this case was filed on the 2oth of March last, and having laid during the present term without any exception being filed thereto, is liable to be confirmed, or otherwise acted on without further notice. And it is now taken up, on motion of the com- plainant. The balance reported as due from or in tlie hands of the defendants, Owens & Smith, is ^'13,925 29. Against this there are some further credits, which are extended, but not yet established or allowed, which, if allowed, would reduce the balance to $11,837 35. On the present state of the accounts, it is Ordered, that the said Owens & Smith do forthwith deposit in the Farmers Bank of Maryland, to the credit of the estate of William Robb, the sum of ;fl.'13,337 35, which will be liable to a deduction and return of the further credits for expenses and commission, if allowed, and also the sum of $1509, claimed on account of A. Stewart, if established. The balance then remaining will be subject to the order of tlie court, on a further report to be made by the auditor as to the claim of the creditors, including the defendants. (/) Roberts v. Hartley, 1 Bro. C. C. 56 ; Gordon v. Rothley, 3 Ves. 572. 160 McKIM V. THOMPSON. lished as to be open to no farther controversy at any subsequent stage of the proceedings. (??i) These principles being settled, the next inquiry is, how far the court may allow itself to range through this case in search of those facts, which are to be thus taken as admitted or established. The plaintiffs contend, that the answer of a co-defendant, and certain exhibits and proofs, taken in express reference to this motion, should be read and considered. On the other hand, the defendant Thompson urges, that the very satisfactory explanations of what he calls his supplemental answer ; or at least, that matter stated in his petition, filed on the 31st of January last, as the substance of a supplemental answer, which he ought to be permitted now to file, should be taken into view. All these matters must be disposed of before we can safely undertake to bring together what may be considered as the admitted, or established facts in relation to this motion. The answer of the defendant John Bell, it has been urged, may be resorted to, as belonging to the res gesta, to the same subject, either as direct evidence, or for explanation, or illustration. It is, in general, true, that the answer of one defendant cannot be used as evidence for or against another defendant. Whatever may be the extent of the exceptions to this rule, none of them embrace this case \{n) for it is veiy clear, that Thompson has made no reference to, nor admitted any thing which John Bell has said in his answer : nor has the truth of any one of John BelVs allegations been put in issue, before the auditor, or otherwise, and conclusively established against Thompson. The answer of John Bell, the co- defendant, cannot, therefore, be allowed to furnish any of those facts on which the decision of the court must be founded on this motion. The plaintiffs have also directed the attention of the court to the exhibits and proofs taken, under the order of the 10th of May last, in reference to this motion, and have contended, that, in cases like this, proofs of collateral facts and circumstances may be intro- duced. But the authorities relied on to sustain this position, point to an important distinction in the classification of cases of this nature. (m) Montgomery v. Clark, 2 Atk. 378 ; Rogers v. Rogers, 1 Anstr. 174; Quarrell r. Beckford, 14 Ves. 177 ; Vigrass v. Binfield, 3 Mad. 62 ; Rothwell v. Rothwell, 2 Sim. & Stu. 217.— (n) Osborn v. U. S. Bank, 9 Wheat. 832; Field v. Holland, 6 Cran. 24. McKIM V. THOMPSON. 161 In cases between vendors and purchasers of real estate, the purshaser, who is not in possession, cannot be called upon to pay in the purchase money until the title is completed ; nor will the mere fact of his taking possession, entitle the vendor to call upon him for the payment of the purchase money into court. But if the purchaser, being in possession, exercises acts of ownership, he may be compelled to pay the purchase money into court. And the taking possession, and the acts of ownership, though not mentioned in the bill or answer, are the collateral facts which may be shewn by affidavits, or by proofs taken in a manner similar to those offered upon the present occasion. But, in such cases, that the purchase money is due, and the amount, are facts admitted and established ; and whether it should be immediately brought in, or whether the purchaser should be indulged until final hearing, or how much short of that, are questions which depend upon equitable circumstances, not necessarily involved in the principal controversy, that never would be brought into view, but by such a motion. They are, therefore, truly and properly collateral circumstances. But, in this case, the question is, whether, in the direct progress of a case, it has been established or admitted, that a party holding money has no title to it ; and is, therefore, liable to be called on in this w'ay. In this class of cases, it is a part of the principal matter in controversy — one of the circumstances of it ; as much so as, in the other class, between vendor and purchaser, whether the purchase money was really due or not. And being necessarily involved in the main question, the court will not stop or delay the regular progress of the case to investigate or establish it by affidavits or proofs taken out of the regular order. The proof of possession, and the acts of ownership, lay the foundation of that equity which entitles the vendor to make the call for his money sooner than he otherwise could do ; and, in that class of cases, it is said to be now quite decided, that, upon motions of this sort, affidavits of such collateral circumstances may be read, and that it was a practice to be encouraged, as it shortened pleading.(o) But there is an obvious distinction between such collateral circumstances and peculiar equity, and the admission or establish- ment of facts, which go to shew the real title to the fund proposed (o) Clarke v. "Wilson, 15 Vcs. 317 ; Cutler v. Simons, 2 Meriv. 103 ; Morgan v.. Shaw, 2 Meriv. 138 ; Criitchley v. Jernins^ham, 2 Jleriv. .502 ; Bramley v. Teal, 3 Mad. 219 ; "Wickham v. Evered, 4 Mad. 53 ; Blackburn r. Starr, 6 Mad. 69 ; Wynne r. GriffiUi, 1 Sim. & Stu. 147; GUI v. Watson, 2 Sim. &. Stu. 402. .; 21 162 McKIM V. THOMPSON. to be called in. Therefore, the proofs and exhibits that have been taken and brought in under the order of the 10th of May last, must, upon the present occasion, be laid aside as altogether inadmissible. Having thus disposed of the proffered auxiliaries of the plain- tiffs, let us now take a review of those tendered by the defendant Thompson. He insists, that a certain paper he has presented as a supplemental answer, ought to be considered as an amended answer, or that he ought now to be permitted to file a supplemental answer as prayed by his petition. It is with great difficulty permitted to a defendant to make any alteration in his answer, even upon a mistake. And there is no instance of its having been allowed for the purpose of retracting a clear and well understood admission.(p) It should appear due to general justice to permit the issue to be altered. The rule upon this subject is, that the defendant must move to put in a supple- mental answer, and accompany the motion with an affidavit, in which he must swear, that when he put in the answer, he did not know the circumstances upon which he applies, or any other cir- cumstances upon which he ought to have stated the fact otherwise, or that when he swore to his original answer, he meant to swear in the sense in which he now desires to be at liberty to swear.(g) The paper tendered as an amended answer, comes within no part of this rule. It is silent as to the causes which occasioned him to omit mentioning the new matter, therein contained, in his original answer ; nor does it say any thing of his not knowing of the new circumstances therein disclosed. It, in fact, purports to be a mere additional or amended answer, proposed to be put on file with the leave of the court, without any previous affidavit, attempting to account for the mistakes or omissions proposed to be corrected or supplied. It must, therefore, be altogether rejected. But this defendant has now filed his petition, on oath, in a formal manner, praying for leave to file a supplemental answer. This petition points out, with sufficient certainty, that which the petitioner alleges was a mistake as to the time of receiving the money first spoken of in his answer. But that part of the answer, which is thus designated as erroneous, is too indefinite and obscure to lay the foundation of such an order as is asked for by the present motion. It speaks of " considerable payments," without specifying whether they were made in bills, or cash, or what was the amount (p) Pearce v. Grove, 3 Atk. 522.— (5) Livesey v. Wilson, 1 Ves. &. Bea. 149. McKIM V. THOMPSON. 163 of all or any of them ; nor does that part of the answer make a reference to any other document by which the uncertainty might be removed. Therefore, as regards the present motion, whether the answer is suffered to remain as it now does, or is corrected, as proposed, is of no kind of importance. The Chancellor deems it unnecessary now to decide, whether a supplemental answer should or should not be allowed to be filed to correct this alleged mistake, in reference to the final hearing ; since the subject was not distinctly argued and presented to the court with that view. The second and third class of errors and corrections, stated and prayed for, are of the same character, and the same observations will apply to both. The defendant admits he knew, at the time he answered, that all right or claim which he could, in any manner, make to the moneys received from Heyland., could only be derived from the deeds which had been previously made and entered into between him and Heyland. He does not pretend to have received any money from Heyland, in any way, except under and by virtue of those contracts ; consequently, his right to hold and apply it, can only be derived from them. His answer distinctly enough states what he believed to be his rights, as well with regard to the then state of things, so far as they were known to him, as with reference to all other and future occurrences. If these contracts authorized Thompson to hold the fund, in any way, for his own use, the original answer, in which he has, by explicit reference, embodied those contracts, as a part of it, with suitable and apt words for that purpose, contains all that is substantially necessary- for his defence ; and, consequently, those after extensions of Thompson's liability, and subsequent ascertainment of the amount of his claim upon the Bells, spoken of in his petition, are more proper and fit subjects for proof and adjustment, on the final hearing, than of a supplemental answer. A supplemental answer is only intended to correct the allegations of the original answer, or to remove from it dangerous admissions, so as to let in proof on the hearing of the real merits of the case. In this case all the merits are, on this motion at least, to be derived from the contracts ; and the answer covers the whole ground over which those contracts can in any way be extended : consequently, it is in all respects coextensive with all the real merits of the case in every' shape whatever ; and, therefore, the supplemental answer prayed for cannot be allowed. 164 McKIM V. THOMPSON. While we are in the way of removing or rejecting matters entirely extraneous from the question now under consideration, it may be well to observe, that although the letter of the 10th of November, from John Bell to Hey land, may be used between the Bells and Thompson, and shews the inducement for entering into the two deeds between Heyland and Thompson ; yet, as it cannot be allowed to control or contradict those deeds, it must, upon the present occasion, be entirely laid aside. Having removed from about this motion, all matters which do not properly belong to it, let us now see how the case stands in its simple and reduced form. It is this : — The trustees for all the creditors of Marcus Heyland, appointed under the insolvent laws of this State, together with sundry of his specified creditors, now move the court to order Hugh Thompson, a defendant, to bring into court the sum of eight thousand eight hundred and eighty-nine pounds, five shillings and four pence, sterling money of England, which he had received at various times between the 5th of March, 1811, and the 13th of September following, as specified in the exhibit E, referred to in their bill. Which sum of money, they charge, was received under and by virtue of the last mentioned of the two deeds entered into between Heyland and Thompson, the one dated on the 20th of November, 1810, and the other bearing date on the 8th of January, 1811. To this Thompson answers and admits, that the persons named in the bill are the creditors of Heyland, as stated, and that the two deeds were made and entered into as stated ; but he denies, that the second was intended to cancel or supersede the first. And, after making sundry allegations about the true intent, and the proper interpretation of those contracts, and his right to hold and apply the money received under them, to his own use, he then makes a direct answer to the bill as to the money which it alleges to have been received by him as stated in the exhibit E, in these words : " Defendant did receive from Marcus Heyland, the sums of money mentioned in complainant'' s hill.'''' And further, " that at the time the money was paid4nto his hands by Heyland, defendant did not expect it would be appropriated to the payment of Heyland''s creditors in England." The true construction of written contracts is a matter which belongs exclusively to the Chancellor : no parol proof can be admitted to explain them, unless in cases of latent ambiguity. No such ambiguity exists in the present case. Therefore, all the facts relative to Thompson's right and title to the money which he McKIM V. THOMPSON. 265 acknowledges he has received from Heyland, are as fully before the court now as they can be at any future stage of the case, or at the final hearing. The only opening for any doubt or hesitation is as to the true intent and meaning of those deeds. Let us then consider them carefully. By that of the 20th of November, 1810, it appears, Heyland had become largely indebted to sundry persons for goods purchased of them ; that, to secure the payment of those debts, he had drawn bills on the firm of William Sf John Bell ^ Co., which they had accepted : who might, therefore, if they paid those bills, become the creditors of Heyland, in place of those of whom he bought the goods. After which the Bells transferred and made over this eventual and uncertain claim of theirs upon Heyland, to Thompson. In consideration of which, Heyland bound himself, by this contract, to pay to Thompson such balance as might be found to be due from him, Heyland, to the Bells, on account of those transactions, or otherwise, upon the fate of the bills being known, and a fair state- ment of accounts between Heyland and the Bells. This seems to be the clear sense and substance of this first agreement. From which it appears, that Thompson was put into the place of the Bells ; and, consequently, to the extent of their claim upon Heylajid, heca.me his creditor ; and, as such, had a right to the funds which were placed in his hands under that agreement. But it is doubtful, from the answer, whether Thompson ever received any thing or not under this first agreement exclusively ; and, even supposing he had, the amount not being specified, the court could make no order on this motion respecting it. It appears, however, that the sum specified in the exhibit E, and which is distinctly acknowledged to have been received, came to Thompson's hands after the execution of the deed of the 8th of January ; and, consequently, must be controlled and regulated according to that contract, and not the first deed of the 20th of November. Hence it becomes necessary to proceed directly to the consideration of the second agreement, dated on the 8th January, 1811. This contract, after a recital nearly word for word the same, and in sense entirely the same as the first, proceeds to declare, that, in consideration of the premises, Heyland is held bound to pay to Thompson such balance as might be found due from Heyland to the Bells on account of those transactions, or otherwise, up to that time ; that Heyland wall ii-"mediately proceed to account with and 166 McKIM V. THOMPSON. pay to Thompson, the amount of the aforesaid acceptances in the same manner as if it had been ascertained they had been duly paid by the Bells ; that on all those payments, Heyland was to be allowed the current exchange ; and, further, that Thompson should indemnify Heyland, to the amount paid into Thompson's hands by Heyland, against all demands that might be rightfully made against him on account of those acceptances, either by the Bells, or by the holders of them- By this deed Heyland does, most clearly and distinctly, give us to understand, that it was his intention to pay all those of his creditors in whose favour he had drawn bills on the Bells. For, with what other possible view could he have stipulated to account with Thompson for the whole amount of the bills, as f they had been actually paid by the Bells ? And with what other untler- standing was the covenant entered into for an indemnity against all those creditors ? It is most manifest, therefore, that Heyland placed this fund in the hands of Thompsoii for the use of that class of his, Heyland's, creditors, the bill holders, whoever they might be. But, it is alleged that Thompson has a title to at least a share of this fund as the assignee of the Bells ; and this, it is said, is proved by the recital in this deed, in which it is acknowledged, that the Bells " had transferred and made over all the amount due by the said Heyland for goods which the said house of William ^ John Bell Sf Co. accepted to pay on his account to Hugh T/wmp- son ;^^ and also by the express stipulation, by which Heyland bound himself to Thompson for such balance as might be found due from him, Heyland, to the Bells, on account of those transactions, or otherwise, to the time of executing that deed. This position may, perhaps, be more clearly and strongly pre- sented in another form, thus : Heyland stands indebted to sundry persons in the sum, suppose for example, of $16,000, for the payment of which the Bells are his sureties ; and, as such, they have paid for him $4,000, and consequently stand in the place of his creditors to that amount. But this claim of the Bells, having been assigned by them to Thompson, he has, thus circuitously, become a creditor of Heyland to the amount of that $4,000, part of the original debt of $16,000. Now, says the defendant's counsel, Thompson must be allowed to retain at least one-fourth of the fund which has been placed in his hands for the payment of the whole $16,000, since he, in fact, stands in the place of the original creditors to one-fourth of that whole amount. McKIM V. THOMPSON. 167 There is an imposing aspect of equity in this position ; and, if the court felt itself at liberty to make free with the positive cove- nants of the parties, there might be no difficulty in applying its equalizing principles to this case ; but the court is not at liberty to reject or impair the covenant of indemnity in this deed of the 8th of January. By that covenant, Thompson is bound to save Heyland harmless, not merely against the Bells, but against all the holders of the acceptances, whoever they may be, to the amount of the funds in his hands. In other words, he is thus constituted a trustee for the bill holders of the funds in his hands, to the amount of the balance remaining due and unpaid on those acceptances : otherwise Heyland would not be indemnified against all demands by the bill holders, according to the express terms of this contract. The expressions in this deed, " on account of the transactions before alluded to, or otherwise, to the time of executing these presents," were intended merely to refer to the means of ascer- taining the extent of Heyland''s liability to the bill holders, and the amount of the funds which it was necessary should be placed in Thompson's hands, to meet that liability. The great leading object of Heyland was to provide for the payment of his own debts due to those bill holders. He had nothing to do w^ith the transactions between Thompson and the Bells, or with the debts due from the one to the other of them. The obvious inducement of Heyland in making this provision in favour of his bill holders was, some apprehended inability of those w^ho had thus become his sureties to them. Hence, whatever might have been the nature or design of the assignment of the claim on Heyland from the Bells to Thompson, or of any contract between those parties, that transfer, or contract, cannot be permitted to control or contradict the positive and clear stipulations contained in this deed of the 8th of January-, between Heyland and Thompson. In short, the clear and unequivocal objects of this deed, were to place funds in Thompson's hands to meet the claims of those of Heyland'' s creditors who should present themselves as the holders of his bills, as therein described ; and to obtain an indemnity and discharge for Heyland from every part of those claims, so far as those funds would go. But Thompson does not pretend that he stands here as a creditor of Heyland, in the special character of a holder of all, or any one of the specified acceptances ; he is not, by any thing that is alleged or appears, a holder of any one of the designated bills drawn by Heyland. It might be, that Heyland 168 McKIM V. THOMPSON. looked to other resources to pay the Bells any proportion or divi- dends which they might pay on those acceptances : and this seems plausible. But whatever may have been the intention of the parties as to any matters not comprehended in the deed, that contract, in itself, is clear and unequivocal. The fund in Thompson' s hands was to be applied to the satisfaction of the demands of certain designated bill holders ; Thompson is clearly and confessedly not one of them ; he has, therefore, no right or title whatever to the money which Heyland had placed in his hands for his indemnification against them. It is, therefore. Ordered, that Hugh Thompson bring into this court, on or before the fourteenth day of April next, the sum of thirty-nine thousand five hundred and seven dollars and eighty-five cents, being the value of eight thousand eight hundred and eighty- nine pounds, five shillings and four pence, sterling money of England, together with legal interest thereon from the first day of January in the year eighteen hundred and twelve, which sum, it appears by the admitted and incontrovertible facts in this case, he had received from the said Marcus Heyland previous to the fourteenth day of September, in the year eighteen hundred and eleven, for the use of said Heyland^s creditors, as specified in the proceedings in this case ; and which the said Hugh Thompson ought, within a reason- able time thereafter, to have paid to the said creditors : Provided a copy of this order be served on the said Thompson, on or before the twenty-fifth day of the present month. And it is further ordered, that the said sum of money, with the interest thereon, when so brought into court, be deposited in the Farmers Bankbf Maryland to the credit of this case, subject to further order. The defendant Thompson, having been advised, that he was not entitled to an appeal from this order, without any previous appli- cation to the Chancellor to be allowed to appeal, on the 17th of February, 1825, presented a petition to the Senate, praying that the General Assembly of Maryland would pass a special act allow- ing him the benefit of an appeal ; and the plaintiffs on the next day presented a counter petition to the Senate, which were both together referred to a committee, who on the 23d of Februarj^, 1825, made the following report : " The committee to whom was referred the petition of Hugh Thompson, and the counter petition of John Mc Kim, jimh., Tho- mas L. Emory, and others, report — That they have considered the McKIM V. THOMPSON. 169 subject referred to them with the attention which the large pecu- niary amount, and the importance of the principles involved in its considerations demand. The petitioner has been proceeded against in chancery by the counter petitioners and others, as a trustee, holding funds which, by the principles of equity, as it is said, he is bound to distribute to sundry creditors of a certain Marcus Hey- land. The defendant denies the trust alleged, and claims the amount in his hands as due to himself. The Chancellor, by an Interlocutory order, has decided, that certain papers filed as exhi- bits in the cause, prove the trust to exist as alleged, and has directed the fund, amounting to about $70,000, to be brought into court. The petitioner alleges, that the interlocutory order is wholly a manifest violation of the principles of chancery law,- in order- ing money to be deposited into court by a defendant, claiming title to it, and more especially in adopting such an order as a means of coercion, by which to compel a defendant to a final decision of his cause, without the proof which his counsel may think proper and necessary ; but is also injurious to him in the highest degree, without any corresponding benefit to the adverse party, whose interest, it is said, will be promoted by allowing the defendant to give such security as will ensure the prompt payment of the money, with the accumulating interest, at the termination of the cause. With regard to the correctness of the decree or order, the committee intentionally avoid any expression of opinion. The high authority of the Chancellor, and the opinions of the able and distinguished counsel who conduct the cause of the petitioner, are opposed, and the committee gladly avail themselves of the absence of any necessity to pass between them. " In whatever other respects a difference of opinion is found to exist, it is admitted on all hands, that from an interlocutory order to bring money into court, tliere is no appeal by the existing laws. Indeed, the nonexistence of such a right, is the sole ground of the application now before the Senate. The question we are called on to determine, is, whether it be advisable to interpose a special legislation to correct an alleged error of the Chancellor. It will at once occur, that the affirmative of this question necessarily involves the previous investigation of the case, and the decision that the Chancellor has erred. It would seem to be obvious, that if a defendant is not injured by a judicial decision, he can with no propriety claim from the legislature a special enactment for his relief. 170 McKIM V. THOMPSON. " The committee cannot believe that it will comport with tiie separate and independent power, which the Constitution has cau- tiously secured to the legislative and judicial departments of the government, that the legislature should erect itself into an appellate tribunal for the revision of a judicial opinion. The organization of the legislature, and its mode of proceeding, are certainly by no means calculated to ensure to parties litigant, a correct or intelli- geint decision. If in the progress of the judicial return, and the developement of legal principles, and their application to peculiar circumstances, they shall be found productive of results which the people of the State deem to be oppressive or inconvenient, it will at all times be the legitimate province of the legislature, to repeal or modify the law.^ Some of the most salutary provi- sions of our code haye originated from the inconvenient operation of general principles in their application to particular cases. But in this, as in all other ifSnstances, individual injury is to be sub- mitted tOj when it can only be avoided by endangering the public weal. " The committee are entirely satisfied, that it will be inconveni- ent, and may in very many cases be extremely oppressive to defend- ants in chancery, to be compelled to bring money into court until a final decision upon their claims to it ; and still more inconveni- ence and oppression, they believe, might grow out of the principle, that an order to bring money into court can be used by the Chan- cellor as a compulsoiy process, whereby litigant defendants shall be coerced into an early decision of their rights ; and they would suggest the propriety of legislation upon the subject. But they still retain the opinion, that injurious as may be the consequences of this decision to the petitioner, yet the mischief of special legis- lation to interrupt the regular operation of the course of judicial proceeding, and the assumption of powers which by the Constitu- tion have been declared to belong exclusively to an independent department, is of much greater concern to the community. Such a precedent would open the door to the introduction of a class of cases not more to be dreaded by the number, than by the difficulty of distinguishing their various grades. From a state of perfect certainty, through all the intermediate stages of conviction, to a state of perfect doubt, as to the correctness of the judicial deci- sion which shall become the subject of relief, the legislature may expect to find itself called on to execute this portion of its newly assumed power. McKIM V. THOMPSON. 171 *'The committee, in all the views in which they have been able to consider this subject, find themselves compelled to adopt the con- clusion, that the jirayer of the petitioner ought not to be granted. They therefore recommend the adoption of the following reso- lution: " Resolved^ That the petitioner have leave to withdraw his petition." " ]\Ir. Claude moved to strike out the report, and the question was put and determined in the negative. The question was then put, Will the Senate concur in the report and assent to the resolution.'' Determined in the affirmative. "(r) 2d May J 1825. — Bland, Chancellor. — In this case the defend- ant, Hugh Thompson, by his counsel, on the 11th of April last, moved the court to grant an appeal from its order of the 12th of February last, and thereupon filed and offered an appeal bond for the approbation of the Chancellor. The motion was permitted to lay over until the plaintiffs could be heard ; after which their coun- sel appeared, and asked to be allowed further time to reply, in writing, to the defendant's motion, which was granted ; and on the 28th of the last month, a written argument, on the part of the plaintiffs, in opposition to the motion, was accordingly submitted to the Chancellor. The parties having been thus heard, the motion has been deliberately and maturely considered. The Chancellor took some pains, after a very careful research into all the authorities within his reach, to explain the reasons and grounds on which he founded the order of the 12th of February last. The greater part of the debatable ground, occupied in the discussion of the motion for that order, was as to its foundation, — as to the kind of admissions, or state of things which would war- rant its being made. The court was, therefore, explicit upon that subject. But, whether such an order was interlocutory or final — a " decretal order" or not, was neither mentioned in argument, nor considered by the court. The investigation of the nature of the basis of such an order being a matter of much importance, was however, made with great care ; because, upon its being ascer- tained, whether that basis was solid and uniform, or loose and shifting, depended the very interesting question presented in that argument — whether such orders were likely to be attended with good or ill consequences ; or whether they were, or were not capa- (7) The Chancellor's case, post 000. 172 IvIcKIM v. THOMPSON. ble of being used as instruments of oppression ? And it was, on finding that the authorities required the most broad and solid foundation, no less clear and strong than that of a final decree itself, that the court was perfectly convinced of their great utility in all cases where there was a proper foundation for making them, and that they were no more capable of being abused, or applied to improper purposes, than final decrees themselves. But the foundation, or basis of an order, does not determine its effect upon the controversy or the parlies. An admitted, or incon- trovertible state of facts, is required as the foundation of an order to bring money into court. As the foundation of an order to account, it must appear that a computation is necessary relative to the matter on which the court may be called on to decree ; and to lay a proper foundation for an order to pay money out of court, the party claiming it must show a clear title in himself. But no infer- ence can be deduced from the nature of the basis of an order as to its true character, that is, whether it be interlocutory- or final, a decretal order, or otherwise. Such questions can only be deter- mined by the order itself, considered in all its relations and bear- ings upon the parties and upon the case. Whether an appeal can be allowed, as moved for, must depend altogether upon, whether the order. of the 12th of February last is or is not a " decretal order," within the true intent and mean- ing of the act of 1818, ch. 193, s. 1. The English authorities explain, with tolerable accuracy, the difference between interlocu- tory and final decrees in Chancery, . but the phrase, "decretal order," seems to be variously applied, and to have no settled or distinct meaning or application. The terra " order" is almost always used in speaking of those general or special directions by which all suits in chancery are governed, controlled, or facilitated throughout, or in the course of their progress from beginning to end ; and, the term " decree" is most generally applied to the decisions of the <;ourt upon some or all of the rights of the litigating parties. Hence it would seem, that a " decretal order" can only be such an order as finally determines some right between the parties. But we have a satisfactory and conclusive authority of our own State upon this question. The Court of Appeals, in the case of Snoioden v. Dorsey,(s) say, " that, an appeal will not lie from a mere interlocutory order by which nothing is finally settled between (s) 6H. &. J. 111. McKIM V. THOMPSON. I73 the parties ;" and " v>-hich was only preparatory "to a final decree, and was liable to be reviewed at pleasure ;" or " where nothing is done conclusive upon the Chancellor, but the order remains open, subject to his final disposition, and may be rescinded on motion." Let the order of the 12th of Februaiy last be tested by this decision of the Court of Appeals, and every difficulty must be at once removed ; it is, upon the face of it, merely preparatory to a final decree, — nothing is done conclusive upon the Chan- cellor. The order directs, that the money " when so brought into court, be deposited in the Farmers Bank of Maryland to the credit of this case, subject to further order." The place of the deposit of the money is ordered to be changed. It is to be made more secure for the benefit of all concerned, subject to be disposed of by any future order, or by the final decree, in such proportions and in such manner as the right and title of the parties shall require. This order, of the 12th of February last, is not then, according to this opinion of the Court of Appeals, a " decretal order." And the construction, thus given by that court, to the phrase "decretal order," in the act of 1818, accords with that which has been always heretofore given to it by this court. The practice of requiring and giving bond, on an appeal from a decree of the Court of Chancery, was very carefully inquired into and considered, by the Chancellor in RinggoWs case •,{t) and in the course of his investigations in that case, he became perfectly con- vinced, that there was no legislative enactment of this State rela- tive to appeal bonds from the decrees of the Court of Chancery. The act of 1729 only declares, that the provisions of the act of 1713, on the subject of appeals, so far as they relate " to the pro- secution of them," shall apply to chancery cases ; and, so far as any thing may be inferred from what was done by the Court of Appeals in the case of Smith v. Dorsey, at June term 1824, (for the court gave no reasons for their act,) it appears to be the opinion of that tribunal, that there is no act of assembly requiring a bond to be given on an appeal from the Court of Chancery. But it would be obviously impossible, or veiy difficult, to apply the pro- visions of the act of 1713, relative to appeal bonds, on appeals from judgments at common law, to appeals from the multiform and complex decrees of the Court of Chancer}-. It has, however, been the constant practice to require bond with surety on appeals from (0 Ante, 5. 174 McKIM V. THOMPSON. tlie Court of Chancery, where the thing decreed would be put or continued in jeopardy, or at risk. The practice upon this subject, as heretofore settled and established, the Chancellor has neither the disposition nor the power to alter in any respect whatever. But if an appeal would lie from such an order as that of the 12th of February last, and if the Chancellor could, in no case, on an appeal, as in England, order the money to be paid into court, to remain there pending the appeal, and if he were bound, as has been contended, by positive legislative provisions to grant the appeal, on the parties entering into bond with approved surety, then- it would be utterly futile to ask for, or obtain such an order in any case whatever, even in the plainest and strongest that could be imagined; since the party thus called on could always suspend its execution at pleasure. The order in this case calls on the party to bring the money into court, that the court itself may have it placed in perfect safety for the benefit of all concerned \{il)' not that he shall merely give security for the payment of it. But if the party could appeal from such an order, and suspend its execution, by giving an appeal bond, then he could, in effect, prevent the court from going farther than barely demanding security for the payment of the money. The consequence of which would be, that such orders would operate partially and not alike upon every citizen ; upon those most wealthy and best able to comply, they would be mere cobwebs ; but upon those least able to find security they would have their full and just effect ; they would operate as rigid injunctions. Upon the whole, the Chancellor is perfectly satisfied that an appeal cannot be allowed, and therefore. It is ordered, That the motion of Hugh Thompson, to grant an appeal from the order of this court, made on the 12th of February last, directing him to bring a certain sum of money into court, as therein set forth, be and the same is hereby overruled and rejected. After which, on application, and its being shewn that the order of the 12th of February had been served as required, an attach- ment was ordered against the defendant Thompson, returnable forthwith ; but it so happened, that the process was never served (w) It is admitted on all hands, that the court has, in all cases, tlie power to invest any money in its hands so as to keep it productive pending the litigation ; and there- fore there can be no ground to object, that if the money were called in, there would necessarily be any great loss of interest in a case like this. — Latimer v. Hanson, ante, 51. f McKIM V. THOMPSON. 275 on him. At the June term of 1825, of the Court of Appeals, the defendant Thompson applied to that court for an order prohibiting the Chancellor from proceeding pending the appeal, upon which an order was passed and certified to the Court of Chancery accord- ingly. As to which, see 6 H. k, J. 321, 334. The case having abated by the death of Thompson, the parties filed an agreement in the Court of Chancery, under which Robert Oliver, as executor of Thompson, appeared as a party in his stead ; and upon which the following order was passed. 24^A January, 1827. — Bland, Chancellor. — Ordered, that this case be and the same is hereby referred to the award and arbitra- ment of David B. Ogden and Francis S. Key ; and if they differ, to choose a third person, and the award of any two, when filed, to be entered as a decree of this court, according to the terms of the aforegoing agreement. After which the arbitrators made and filed the following award : " This cause having been, by the agreement of the parties, and the order of the Chancellor, referred to us, we have examined the record and considered the statements of both parties; and do thereupon make the following award : " The controversy submitted to our decision by the parties in this case depends upon the construction to be given to the contract of the 8th January, 1811, between Heyland and Thompson. The precedmg contract of 20th November, 1810, and the letter of John Bell to Heyland, which produced it, the letters of Hugh Thompsonj and the other evidences of his acts and declarations subsequent to the contract, have been considered by us. " We are of opinion, that the construction of the contract, which the complainants adopt as the ground of their claim, cannot be sustained. We think it was intended to " assign" to Thompson^ to secure him for his liability for the Bells, whatever Heyland owed, or should owe to the Bells, for the acceptances they had paid, or should pay for Heyland; that it w^as meant by the parties, that the full amount of the acceptances made by the Bells for Heyland, should be paid, under that contract, by Heyland to Thompson ; and that Thompson should apply what was thus paid, as far as those accept- ances should be met by the Bells, to secure himself to that amount, and as far as they were not paid by the Bells, to pay them. Thus would Heylandh indemnity under the contract be complete. What the Bells should pay he would be clear of, by the payment, which 176 McKIM V. THOMPSON. they directed to Thompson; what the Bells should not pay, Thompson, out of the funds received from him, was to pay. " What Thompson received under this contract from Heyland, was jC;8889 5s. Ad., and his engagement was to indemnify Heyland from claims by the Bells, or the bill holders, " to an amount equal to the sum which might be paid over to the said Tlwmpson by virtue of said arrangement." We therefore consider, that if it appears, that the Bells paid on account of those acceptances, an amount equal to the sum received by Thompson from Heyland ; and if it further appears, that Thompson is liable for, or has paid, on account of his engagements for the Bells, an amount equal to what he has received from Heyland, he has complied with the contract. " The first appears to be admitted. The sums paid to the bill holders by the Bells, amount to a greater sum. Thompson's account ' against the Bells shews an amount due to him greatly exceeding the sum paid him by Heyland. The bills of the Whittles and Tucker, (notarial copies of which are admitted,) amount, with damages and costs, to about that sum. These bills Thompson had endorsed and taken up, and the Bells were liable to him on them, and it was for them, it appears, he entered into the liability ; to them he had a right to look ; and although there is an expression in one of his letters, that he meant first to get the money from the Whittles, if practicable, yet we do not think he was bound by that expression to follow the Whittles with strict legal diligence. There is no evidence to shew, that there has been any such engagement, or such negligence in enforcing it against the Whittles as should absolve the Bells. There are other items in Tliompsoii's account, which we did not understand were objected to. "Upon the whole, we award and determine, that neither the complainants, the original bill holders, nor the assignees of the Bells, nor those of Marcus Heyland, have any claim upon the funds received by Thompson from Heyland. And that a decree shall therefore be made dismissing their bill ; but without costs. 12th February, 1827." A decree was passed accordingly on the 26th February, 1827. JONES V. MAGILL. y-jfj JONES V. MAGILL. An injunction may be granted in any case, on the bill alone, before a subpcena has issued, on affidavit, or such other testimony as shews the truth of the statements of the bill ; except to stay proceedings at law to recover mortgaged property. The mode of giving notice of a motion to dissolve. Exceptions to the anfewer, and the motion to dissolve, may stand for hearing at the same time. The rule further proceedings may be entered, during the sittings, and at the same time with the entiy of notice of motion to dissolve, and may be enforced at the same time ; or at the proper time after the motion to dissolve has been disposed of. On hearin"- the motion, the plaintiff opens and concludes the argument. In extraordinary cases, the injunction is granted upon terms adapted to the circumstances. It is a general rule, that where there are two or more defendants, no motion to dissolve can be heard until all of them have answered; but to this rule there are exceptions. Where one of the defendants has answered, he may have the plaintiif compelled to use all due diligence to enforce an answer from the other defendants, or to have the case placed in such a situation as to enable the responding defendant to move for a dissolution of the injunction. » This bill was filed on the 18th of January, 1825, by Elizabeth Jinn Jones, executrix of Abraham Jones, deceased, against Thomas Magill, John F. Gittings, and Thomas JY. Harding. The bill states, that on the 26th of October, 1818, the defendant Harding, gave his note for the sura of $500, to the defendant Gittings, which was signed by the late Abraham Jones, the testator of the plaintiff, as surety for Harding ; that Harding, in order to save Jones harm- less, on the 10th of August, 1822, by a bill of sale, conveyed to Alexander Warjield certain negroes and other personal property, a part of which was intended for the security of Warjield, who was bound for Harding in other cases ; that after the death of the plaintiff's testator, Warjield, on the 5th of April, 1823, by bill of sale, conveyed to this plaintiff, two negroes, named JVelson and Mason, which were intended by Harding to secure the plaintiff against loss by the liability of her testator, on the note for $500 ; that, with a view to defraud the plaintiff, those negroes had been concealed and disposed of, out of this State, by the defendants Harding and Magill ; that on the 11th of December, 1821, Harding, by bill of sale, conveyed two negroes, John and Weslley, to the defendant Gittings, for the purpose of securing to him the payment of a note which he held of Harding'' s, for the sum of $326 81 ; that the money secured by those two notes belonged to Juliet A. C. Gittings, then an infant, who was married, in January, 1823, to the defendant Magill; that the defendant Gittings, who was her 23 278 JONES V. MAGILL. guardian, after her marriage, assigned those notes, and with them the negroes conveyed to secure the payment of the note for $326 81, which were worth more than that amount, to Magill ; that Magill and Harding agreed with the plaintiff, that those negroes should be applied to the payment of the note for $500, if they should be more than sufficient for the satisfaction of the note of $326 81 ; that the debt of $326 81, was afterwards settled between Harding and Magill, notwithstanding which, Magill, on the 17th of October, 1823, by a bill of sale, conveyed those two negroes, John and Westley, to Lloyd Gittings, in trust, for the use of the infant children of Harding ; he, Harding, being then insolvent ; and that Magill had brought suit, and obtained judgment against this plaintiff at law, on the note for $500, upon which he had sued out and levied an execution upon the property of this plaintiff. Upon which the bill prayed, that the proceedings at law might be stayed by injunction and for relief, &c. An injunction was granted accordingly. On the 16th of May, 1825, the defendant Magill put in his answer, in which he says, that the defendant Gittings, as the guardian of his, MagilPs, wife, passed a final account with the Orphans Court ; and among others, assigned to her the two notes, as stated in the bill ; that Harding, on the 28th of February, 1823, delivered to this defendant, the two negroes John and Westley, in full satisfaction of the note for $326 81, which sale and delivery was fair and bona fide ; that he afterwards hired those negroes to Harding ; that being moved by the poor and destitute situation of Harding, whose wife is the sister of the wife of this defendant, he, Magill, did convey those negroes in trust for the use of Hardingh infant children, as stated in the bill ; and he denies, that he ever agreed, that those negroes should be sold, and that the amount for which they sold over the sum of $326 81, should be applied towards the payment of the note for $500 ; that this defendant has been informed by the defendant Gittings, and this defendant believes, that the late Abraham Jones, the testator of the plaintiff, was not the mere surety of the defendant Harding in the note for $500 ; but that Jones was in fact the principal debtor, and that the money lent on that note was received by him and appropriated to his own use, although Harding^s signature to it stood first in order; that in September, 1817, Harding, for money borrowed, gave his note to the Bank of Westminster for $1000, with Abraham Jones, Alexander Warfield, and Richard Beall, as his sureties ; and, to save Warjield harmlessij JONES V. MAGILL. I79 made to him the bill of sale of the 10th of August, 1822, which Nvas intended for that purpose only, and not to secure or benefit Jones, in any manner, on account of his liability to Gittings on the note for $500 : this defendant admits, that Warfield did convey to the plaintiff two negroes by the bill of sale of the 5th of April, 1823 : but he denies, that he had any knowledge of, or agency directly or indirectly in concealing, or removing those negroes from this State ; that the testator of the plaintiff in his lifetime, and this plaintiff, since his death, have frequently pro- mised to pay the note of $500 to this defendant ; and finally, this defendant admits, that he has obtained judgment and levied execution, as stated in the bill, and prays that the injunction may be dissolved, &c. The defendant Harding filed his answer on the 16th of May, 1825, in which he says, he admits, that he was indebted to Magill as stated ; that, in consideration, and in full satisfaction of that debt, he conveyed to Mugill the two negi'oes John and Westley^ which negroes Magill, whose wife is the sister of this defendant's wife, conveyed in trust for the use of the children of this defendant, intending it as a gift to them from their aunt ; that the whole transaction was bona fide, and without fraud : tliis defendant denies, that he ever agreed with the plaintiff, that the value of those negroes, if more than sufhcient to satisfy the note for $326 81, should be applied to the satisfaction of the note for $500 ; that this defendant, at the instance and request of the late Abraham Jones, borrowed of the defendant Gittings the sum of $500, which he delivered over to Jones for his use ; that they gave their note to Gittings for the amount so borrowed ; and although this defendant's name stands first in order as being apparently the principal obligor ; yet he is, in fact, no more than the mere surety of Jones, which fact is well known to the defendant Gittings ; that this defendant borrowed from the Bank of Westminster the sum of $1000, for which he gave his note with Abraham Jones, Alexander Warfield, and Richard Beall, as his sureties ; and at the instance of Warfield, and for the purpose of saving him and his other sureties harmless, after that note had been reduced by payments to $730, he conveyed to him by the bill of sale of the 10th of August, 1S22, property to the value of $1250 ; and this defendant denies, that it was intended, in any manner, as a security for the payment of the note of $500 : this defendant admits, that he has sold the negroes, JYelson and 180 JONES V. MAGILL. Mason, and has appropriated the proceeds of sale to his ov,ti use ; averring that he was well justified in doing so,&c. These answers not having been filed during the sittings of a term, the Chancellor on application passed the following order as usual in such cases. 16th May, 1825. — Bland, Chancellor. — In this case the defend- ants, Thomas Magill, and Thomas A"". Harding, having filed their answers, and entered on the docket notice of a motion at the next term to dissolve the injunction issued in the said case, it is ordered, that the said motion stand for hearing at the next term, provided a copy of this order be served on the complainant or her solicitor before the twentieth day of June next. A copy of this order having been served as required, and no counsel appearing for the plaintiff, the motion to dissolve the injunction was submitted on the part of the defendants, Magill and Harding. llih August, 1825. — Bland, Chancellor. — An injunction, if prayed for by the bill, may be granted in any case on the bill alone, before a subpoena has been issued, or the party summoned ; except to stay proceedings at law in an action of ejectment by a lessor, under the act of 4 Geo. 2, c. 28, s. 3. ; or to recover mort- gaged property under the act of 7 Geo. 2, c. 20, in which cases no relief, or injunction can be granted before the defendant shall have been summoned and heard. (a) But in no case can an injunction be granted on the bill alone, unless it be verified by the affidavit of the plaintiff; or of one of the plaintiffs, where there are more than one ; or, if the plaintiff be not a resident of the State, by the affidavit of some third person, who especially shews how he hap- pens to have a knov/ledge of the facts set forth in the bill ; or by some other testimony sufiScient to induce the Chancellor to credit the bill for the truth of its statements. (J) In ordinary cases the injunction is simply granted as prayed; and, in such cases, the defendant may, immediately upon filing his answer, give notice to the plaintiff cf a motion to dissolve the injunction to be heard at the then next tenn. If the answer be filed (a) Todd V. Pratt, 1 II. &. J 465; Eden. Inj. 8.3.— (6) Moore's Lessee z'. Pearce, 2 H. & McH. 239 ; Schermehon v. L'Espenassc, 2 Dall. 360 ; 2 Ilarr. Pra. Cha. 221 ; 1 Cain. Ca. Err. 1. JONES r. MAGILL. Igj during the sittings(c) of a term, this notice can only be given by an entry of it upon the docket, of which the plaintiff is bound to take notice ; or, if not then entered, it can only be put upon the docket at the next sittings ; and so on, from term to term. But, if the answer be filed after the close of the sittings of a term, then the defendant must make such an entry upon the docket, and also obtain a special order, such as that which has been passed in this case ; and must produce proof of its having been served as required, before his motion can be heard. The defendant may, during the sittings of a term, at the same time he enters upon the docket a notice of a motion to dissolve the injunction, if the case be so situated, that it lays with the plaintiff next to proceed, also have entered a rule further proceed- ings, by the next term ; so as to compel the jolaintiff to proceed with his case, in addition to his shewing cause upon the motion to dissolve. And if the plaintiff excepts to the sufficiency of the answer, such exceptions may be taken up and decided at the same time, and together with the motion to dissolve. (c/) After the notice of a motion to dissolve has been given, in either of those modes, and the rule further proceedings has been entered, the defendant may, at any time, after the specified period has elapsed, which is the first four days of the then next term, take advantage of both, at the same time, during the sittings of any term, so as to have the injunction dissolved, and the bill dismissed at once ; without giving any fresh notice, or layino- a new rule.(e) The motion is to dissolve, unless cause shewn hy the plaintiff; and therefore on the hearing of it, the matter is opened by him, then the defendant is heard, and the argument is closed on the part of the plaintiff. If the plaintiff fails to appear and shew cause, the injunction may be dissolved on such default, without any consider- ation by the court, of the bill and answer; which will become absolute at the close of the sittings of the term unless cause shewn. But, if the Chancellor is called on, during the sittings, as he may be, for his judgment upon the motion to dissolve, and he orders the injunction to be dissolved, then it will not, on any account, be reinstated merely on the same bill and answer. (c) See ante, 126, note (o). (rf) Alexander v. Alexander, MS., 13th Dec. 1817; Eden Inj. 73.— (e) 2 Mad. Chan. 383 ; Navlor v. Taylor, 16 Ves. 127 ; Bishton r. Birch, 2 Ves. k Bea. 40 ; James v. Biou, 3 Swan. 244 ; Farc^uharson v. Pitcher, 3 Russell, 3S3. 132 JONES V. MAGILL. In extraordinary cases, however, the course of the court has always been varied to suit the emergency, or the peculiar circumstances. (e) (c) Eden Inj., 235. Brysox v. Petty.— The bill, filed on the 13th of May 17S6, by Andrew Bryson ao-ainst John Petty and Thomas Rutland, states, that the plaintiff was the master and commander of the ship Kitty, then lying in the harbour of Annapolis, of which the defendants were the owners ; that the plaintiff had made several voyages in the ship, as master • and been under the necessity of making sundry disbursements, and incur- rino- considerable expenses on account of repairs, Sec. for tlie ship; that the defend- ants had refused to account with, or reimburse him the amount thereof; and had, by a writ of replevin, taken the ship, with her cargo of salt, from his possession ; were about to send her out of the country, and to go themselves beyond the jurisdiction of this court. Prayer for general relief; for an injunction to prevent the removal of the ship and cargo ; and for a ne exeat to prohibit the defendants from leaving the State. This bill was sworn to in the usual general manner. And there does not appear to be any other specification of the claim or amount due than by a general reference to the exhibits. ISth May, 1786. — Rogers, Chancellor. — Issue snbpcena, ne exeat, and injunction as prayed, with libert\% nevertheless, for the said John Pettj' to proceed to the trial of his replevin at law, but to stay execution on any judgment he may obtain therein, until further order. The defendant, Petty, by his petition, stated, that he had filed his answer, that the ship Kitty belonged to him and his partner in England, Joseph Yates ; that the defendant Rutland had no interest in her ; that the petitioner was anxious to send her to Europe, and had accordingly v\Tilten to have insurance made on her voyage ; that, while here idle, she was decaying, and would be soon destroyed by the worms ; that he was willing to pay what might be found due the plaintiff, and prayed that the injunction might be dissolved on his giving bond, &c. ll//t June, 1786.— Rogers, Chancellor. — Ordered, that an account be adjusted, made and taken by auditors of and upon the several transactions mentioned, and set forth in the bill, answer and exhibits filed in the said cause. By consent, three persons were appointed as auditors, he. 2ith July, 1786. — Rogers, Chancellor. — Upon hearing the petition of John Potty, one of the defendants, in presence of the parties, by their counsel ; it is ordered, that the injunction issued in this cause, so far as it relates to the ship Kitty, be dis- solved upon the said John Petty giving bond, with good surety, to be lodged in and approved by this court, to abide by, observe and perform the final decree of this court ; but that the injunction shall continue and remain in full force as to the salt in the said injunction mentioned. On the 4th December, 1786, before me the subscriber, one of the justices of the peace for said count}', personally appeared William Jessop Vickers and made oath, that on the thirtieth day of November last he, as clerk on a commission from chan- cerj% wherein Andrew Bryson is complainant, and John Petty and Thomas Rutland are defendants, issued a summons signed Thomas Harwood and John Muir, commis- sioners appointed by the High Court of Chancery, to examine evidences on behalf of Andrew Bryson, complainant, and John Petty and Thomas Rutland, defendants. Which siimmons was directed to the sheriff of Calvert county to execute, and is in the words and figures following, to wit : " Maryland, set. — The State of Maryland, to William Richards, now of Calvert JONES V. MAGILL. 283 Where the equity of the bill appears to be doubtful ; or where the magnitude, and nature of the subject enjoined county, greeting; : — You are hereby commanded, that all excuses set apart you per- sonally be and appear before the commissioners appointed by the High Court of Chancery, at tlie city of Annapolis, on Saturday the second day of December next, to testify on behalf of Andrew Brj-son complainant, and John Petty and Thomas Rutland defendants : hereof fail not as you will answer the contrary at your peril. Witness our hands this 30th day of November, 1736. — Thomas Harwood, John Muir, commissioners. To the sheriff of Calvert county." Which said summons was duly served as appears by the return on the back thereof, to wit : — " Summoned. W. Allen, sheriff." This deponent saith, that although the said summons was duly served as aforesaid, the said William Richaids neglected to appecir according to the direction thereof, which prevented the said commissioners proceeding in the execution of said commission. 4th December, 1736. — Rogers, Chancellor. — Issue attachment of contempt against the said William Richards, returnable next court. No further proceedings being had under this order ; the case was brought before the court for final hearing. 28ih March, 1787. — Rogers, Chancellor. — Decreed, that the defendant Petty pay to the plaintiff the sum of £6-17 14s. 9d., with interest from 7th April, 1786, until paid, and costs ; and further, that the defendant Petty give bond, to be approved by the Chancellor, to indemnify the plaintiff for any claims that may be made against him on account of the ship Kiftj- ; and that the injunction so far as respects the pro- secution of the replevin remain in full force, 8cc. The defendant John Petty, having been served with a copy of the decree ; the plaintiff, by his petition, stated, that the defendant Petty had appealed, but had not given bond ; that he had not paid the sum of money decreed ; that he had not given the bond of indemnification decreed ; and that he had disposed of the salt, on which the plaintiff had a lien, in violation of the injunction. Prayer for a ca. sa. against Petty for the sum decreed ; and for attachments for not giving the bond of indemni- fication, and for a breach of tjie injunction. 2i Maij, 1787. — Rogers, Chancellor. — Ordered, that ca. m. and attachment to compel indemnification according to decree issue according to the prayer of the plaintiff's petition. Aflcrwards'the plaintiff called on the sheriff to bring in the defendant under the ca. sa., and the defendant moved to set it aside. 24th May, 17S7. — Rogers, Chancellor. — The ca. sa., in this case, issued with pro- prietj', and the plaintiff ought to be at liberty to call it; auid the defendant John Petty being brought into court, he is thereupon, on the prayer of the plaintiff, com- mitted in execution of the decree aforesaid to the sheriff of Ann Arundel county. Who being present took charge of him accordingly, and committed him to close custody in a chamber of the house of George Mann, (the tavern,) the same being used as a gaol. McMeciien v. Story. — This bill was filed on the 23d of December, 1806, by David McMechen against Thomas Yates, Alexander Story, and The Mayor and City Council of Baltimore, to obtain an injunction to stay proceedings at law in a suit ■which had been instituted in the name of The Mayor and City Council of Baltimore, 184 JONES V. MAGILL. is such as to require a hearing 'without delay; it being of a pubHc concern, or an extensive work in which a num- for the use of Alexander Story. It is stated in the bill, that the plaintiff in Januaiy, 1799, became bound by a joint and several bond to the city of Baltimore as surety of the defendant Yates as an auctioneer ; that afterwards separate suits were brouo-ht on the bond against Yates, and the plaintiff, in the name of the city, for the use of Story ; that Yates repeatedly assured the plaintiff, that the cause of action should be settled and adjusted, and that he, Yates, would cause those suits to be defended, and had employed a lawyer for that purpose ; that the attorney, instead of making any defence, by the fj-audulent conhivance and misrepresentation of Yates, withdrew the plea of general performance of all the stipulations in the condition of the bond ; and in May, 1S03, confessed judgment for the sum of $'4154 30, with interest from the first of January, 1800, and a stay of execution until the first of August, 1803 ; which judgment was afterwards alfirmed by the Court of Appeals ; that the claim of Story against Yates, upon which those suits were brought on the bond, was for goods sold by Yates as auctioneer, for Story, the price of which he had not paid over ; which, not being a claim covered by the terms of the bond, according to a fair construction of the city ordinance, in conformity with which it was given, this plaintiff cannot be held liable for it ; because that ordinance requires a bond from auctioneers to secure the payment of the auction duties made payable to the city, and nothing more. The bill having been filed and submitted, 23d December, 1S06. — Kilty, Chancellor. — It is ordered, that subpcena and injunction be issued as prayed. But the Chancellor considers it a doubtful case ; and therefore will, during the first four days of February term next, or of any term thereafter, hear a motion for its dissolution. And tlie register is directed to endorse a copy of this order on the injunction. On the 27th January, 1807, the plaintiff, by his petition on oath, stated that as he had been advised his bill did not contain all the necessary parties ; that he could not have the relief he was entitled to, under the general prayer of the bill, without some additional special interrogatories ; that William McMechen, the attorney who appeared for the defendants in the suits on the bond, was a necessary party; and that the defendant Story was a citizen, resident of the Stale of New York, against whom, as such, he wished to obtain an order of publication. Wherefore he prayed leave to amend his bill. 2Sth January, 1807. — Kilty, Chancellor. — The Chancellor will determine on this petition during the first week of the ensuing Februaiy term, which he considers will be in time to do justice to the parties. The plaintiff, by his petition filed on the 4th of February, 1807, renewed his ap- plication for leave to amend his bill. 5th Febrvanj, 1807.— Kilty, Chancellor.— The Chancellor is still of opinion, that a determination on the petition for amending the bill need not be made before the ensuing term. But as it is pressed by the complainant, leave is given to amend the bill as prayed ; with the express proviso, that this leave shall not alter, or do away the order of the 23d December last, that the Chancellor would, during the first four days of February term next, or of any term thereafter, hear a motion for its dis- solution. On the 16th of Februaiy, 1807, the plaintiff filed his amended bill, in which he states the fact of the nonresidence of the defendant Story ; makes William McMechen a party ; and propounds to the defendants a number of intfirrogatories, which he JONES V. MAGILL. 185 ber of people are daily employed, as a ferry, a turnpike road, a canal, a street, a furnace, a joint stock cotton factory, conceived to ba important and necessary to help out the case he had set forth in his original bill. After which, on the 23d of February, ISO', the "defendants Yates and The Mayor and City Council put in their answers separately. Yates admits, that the judgments were rendered against him and the plaintiff as stated. But he denies all fraud and misrepresentation as charged in the bill ; and introduces sundry matters in avoidance of the equity on which the plaintiif founded his claim to relief. On the 24th of the same month the defendant McMechen answered, and stated his knowledge of the manner in which the judgments had been obtained. And on the 14th of March, 1807, the defendant Story filed his answer; whicli it appears was sworn to before a notary public of the State of New York, and certified under his signature and nota- rial seal. 2\st March, 1S07, — Kilty, Chancellor. — This motion came on to be argued on a motion to dissolve the injunction, principally on behalf of Alexander Story, one of the defendants interested in, and claiming for himself or his assignee, Thomas C. Jenkins, the money appearing due by the judgment enjoined; and has been delayed for further notes and authorities for the complainant. Under the order of the 23d of December the defendants were entitled to make this motion without answering, or giving notice. But whether they cannot also have the benefit of the answ-ers filed, is a question, wliich it will be important, as to the practice, to determine. It was strongly contended by the complainant's counsel, that at this time no answer could be considered ; and that the case rested on the pro- priety of granting the injunction on the equity appearing in the bill. The Chancellor has seen several cases, in the time of his predecessor, of injunc- tions granted on similar terms ; and he has found it expedient to follow those pre- cedents, in cases which appeared doubtful ; and especially in those in which, frwn the application having been delayed till the last moment, a further delay, for the purpose of full consideration, would amount to a refusal ; as it would have done in the pre- sent case. But it may be doubtful, whether, in such cases, a refusal to grant the injunction would not be the most proper course. When the bill was presented to tlie Chancellor, his doubts arose as to the effect of the manner of giving the judgment; and of the bond under the ordinance of The Mayor and City Council. For there was not a sufficient charge of fraud, by Story, to justify an injunction against him ; and he could not be justly made answerable for the fraud of Yates, as alleged in the bill. But supposing it possible that the law might be as stated in the bill, the Chancellor ordered the injunction to be issued, with the proviso before mentioned. A defendant who is enjoined from pursuing his legal remedy, by the oath of the complainant to the matter stated in his bill, has a right to appear immediately, with- out waiting for a subpcEna, and to put in his answer; which, if it denies the equity, is generally sufficient to procure a dissolution. And if it comes in, so as to afford a reasonable time, an order is granted, during the vacation, for hearing a motion at the first term thereafter, on notice being given. And where, as in this case, notice is previously given, there is no rule, or principle which can render the consideration of an answer improper. Supposing the hearing to be only for the purpose of decid- ing, whether tiie injunction ought to have been granted, ought the court to disregard an answer which goes to shew, that the complainant was not in fiict entitled to what he claimed ? or should the injunction be continued in opposition to such an answer, for the purpose of taking it up at the succeeding term ? The Chancellor recollects 24 186 JONES V. MAGILL. &c. ',{/) or where there are many defendants who are widely dis- persed, or some of whom are nonresidents, and it appears, from some cases in which answers have been thus put in, and have been considered, without any objection having been made. And he is clearly of opinion, that the answers, as for as they are atfected by this objection, form a part of the case now for its determination. When tlie bill was presented to the Chancellor, he was not informed of the opinion which had been given by the Court of Appeals. A short copy only of the judgment of that court was filed, stating the affirmance, without any notice of an opinion having been given. (2 //. ^ /. 41.) The answer of Story has been filed since the argu- ment ; but is not considered as making any difference in the decision. It is, on the whole. Ordered, that the injunction in this case shall be, after the 30th day of the present month, dissolved without further application or order. Provided, that if the complainant shall, on or before that day, pay the amount due on the said judgment, and the legal costs to the said Alexander Story, or his assigns, or his counsel in this suit ; or pay the same into this court, for the pui-pose of being imme- diately so paid, an order for another injunction will be issued, if applied for. On the 5th of October, 1807, the bill was dismissed by order of the plaintiff. After which, Thomas C. Jenkins, by his petition stated, that he had paid the sum of ^'12 99 for postage, notarial seals. Sec. in obtaining the answer of the defendant Story, which he prayed to have allowed to him ; and, that the register be directed to tax that amount with the costs of the defendant. 10//i March, 180S. — Kilty, Chancellor. — The Chancellor is not satisfied, that this charge is properly taxable in the costs ; and the present state of the accounts is a further objection. Supposing the petition to be intended for an order to have those sums taxed in or added to the costs, it cannot be granted. (/f Crowder v. Tinkler, 19 Ves. 622 ; Winstanley i-. Lee, 2 Swan. .3.35, WoRTHiNGTON V. BicKNELL. — The General Assembly, by the act of 1803, ch. 89, appointed Thomas Bicknell, with six others, commissioners to open a road, from a point on the road leading from the city of Annapolis, round the head of South river, by Waters' mill, and the South river Meetinghouse, to Ashton's ford, on the Patuxent, thence through Ogle's plantation to intersect the road leading to Bladensburg ; pro- vided, that they should not run it through the buildings, yards, orchards, gardens, or meadows of any one without his consent. Under the authority of this law, the com- missioners surveyed the road, along the route thus desci'ibed, so as to pass near the mill of John Worthington ; upon which he filed a bill in this court, on the 11th of December, 1805, in which he alleges, that the commissioners had exceeded the authority conferred on them by tliis law, in locating the road in such a manner as most wrongfully, and ruinously to affect his mill, by so crossing and passing along the mill race, as to obstruct or prevent the water from flowing to it. And thereupon prayed an injunction to prevent the commissioners from opening the road, as thus located by them. Which injunction was granted as prayed. The commissioners answered the bill, and denied the allegations and opinions as therein set forth by the plaintiff. And the case was afterwards brought regularly before the court on a motion to dissolve the injunction. 22fZ Dccerrther, 1806. — Kiltv, Chancellor. — The motion to dissolve the injunction in this case having been continued from the September term last, was submitted at this term on notes in writing, which, together with the proceedings, have been attentively considered. JONES V. MAGILL. 187 the statement in the bill, that the facts rest altogether within the knowledge of one or two of them, the Chancellor always, in granting the injunction, specifies the time and terms upon which a motion for a dissolution may be heard. It is declared, that the motion may be heard without answer, or immediately at the same term, or during the sittings of the next term after the filing of the answer, without notice ; or at any time, on giving so many days notice, after filing the answer ; or on the answer of one or more of the defendants before the others have The question arising in this case is an important one as it respects the interests of the parties, and the power and jurisdiction of this court. The position laid down by the late Chancellor, and which appears to be conformable to the principles of a court of equity, was, that this court ought not to control the judgment of commissioners, in cases similar to the present ; who, when they exercise their judgment on a subject, over which the law has invested them with power; and determine on an act to which that power is competent, cannot with propriety' be restrained. The question occurs then, whether, in this case, the law has invested the commis- sioners with a power on the subject over which they have exercised their judgment ? The act empowers them to survey, lay out, and open a road in the best and straightest direction ; and leaves the manner of executing it to their discretion, w"ithout requiring a confirmation of their proceedings by the Levy Court, or any other tribunal. It was for the legislature to determine, whether such power should be given, and they have made no exception ; but that of the buildings, yards, orchards, or meadows, through which they are prohibited from running, without the owner's consent. But it is alleged, that the commissioners, acting under a special authority, have exceeded the powers vested in them, by locating the road over the mill race, which is as much a building, or part of a building, as the mill house. If the Chancellor could entertain this opinion, the injunction would certainly be made perpetual ; but a mill race is, m no sense, a building, or a part of a building. {Co. Litt. 161, a.) One of the grounds for the injunction, stated in the bill, is, that a road equally good with that contemplated by the commissioners, and as little expensive, may be had by running it through the complainant's land above the race and dam. But, this opinion is expressly contradicted by the commissioners. Surely this is a point on which the law has invested them with a power to decide according to their judgment; and the propriety of that judgment ought not to be questioned by this court. So that this averment, by the complainant, cannot have any weight; nor is it necessary to consider the depositions respecting it, even if, from the contrariety of that sort of testimony, furnished by the respective parties, any satisfactory opinion could be formed. The observations of the complainant, respecting the valuation made by the com- missioners, are answered by referring to the provision made by the act for an inqui- sition by a jury to which he might have resorted. Before a great public work should be impeded, by the continuance of an injunction, it ought to appear clearly and satisfactorily, that the defendants were about to act contrary to the law which gave them the power, or to do acts not sanctioned by it ; or in some other way to injure the complainant, so as to come within the established principles, as a ground for their being restrained by this court. Such a case has not been made out by this complainant, and It is therefore ordered that the injunction be dissolved. 188 JONES V. MAGILL. answered. (^) And for the purpose of apprising the defendant of those cSpecial terms, upon which the injunction has been granted, (g) Jenifer v. Stone. — This bill was filed on the 29th of June, 1S09, by Daniel of Saint Thomas Jenifer, administrator of Daniel Jenifer, deceased, against Travers Daniel, John M. Daniel, and Michael J. Stone, suj-viving executor of Thomas Stone. The bill states, that the defendan|; Michael, the surviving executor, had, on the 23d of October, 1306, obtained a decree in this court against the intestate of this plaintiff, for the sum of £1119 3s. 7d.; that the defendant Michael's testator left two daughters, his only children and heirs ; one of whom, Mildred, married the defendant Travers Daniel, and the other, Margaret, married the defendant John M. Daniel ; that these defendants, Travers and John, after their marriages, on the 13th of January, 1798, entered into a covenant with the executors of the late Thomas Stone, of whom the defendant Michael is the survivor, by which they, as executors, were to be saved harmless from the demands of the creditors, and discharged from all liabilitj' to the representatives of their testator ; and they, Travers and John, were to use the names of the executors, for the purpose of collecting and recovering all sums due to their testator; that this plaintiff's intestate was warned not to pay the amount of the decree against him to this defendant Michael ; in consequence of which, and being assured, and believing, that the whole amount was properly payable to these defendants, Travers and John, he paid in part satisfaction of the decree, the sum of three hundred pounds to the defendant Travers ; that this plaintiff has discov- ered, from the books of account of his intestate, that there is a large sum due from the defendant Prlichael to him ; that the defendant Michael had caused a fieri facias to be levied on the estate of this plaintiffs intestate, without giving credit for the amount of the book account ; and had only agreed, that the payment of three hundred pounds should be suspended until he should know the result of a suit instituted, in this court, against him by Alexander Scott, for the recovery of a debt alleged to be due from his testator ; and if that debt was recovered, tl^t then he, Michael, would cause the whole amount, including the three hundred pounds, to be levied under the fieri facias ; and it was in conclusion stated, that the defendants, Travers and John, tlien resided in the State of Virginia. "Whereupon the plaintiff prayed for an injunc- tion to stay the proceedings upon the execution, and for general relief. The bill was sworn to by the plaintiff. 29//i June, 1809. — Kilty, Chancellor. — The Chancellor, after some hesitation and doubt on the subject, has determined to order the injunction as prayed. There would have been less room for doubt, if the former complainant, M. J. Stone, had insisted on levying, at this time, the whole sum, without allowing for the £, 300 paid to T. Daniel ; but, inasmucli as the bill alleges, that although that sura is, for the present, suspended, the said M. J. Stone declares, that he will hereafter le\'y it, if necessary ; and it is a rule of this court not to suiler a creditor to proceed to the recoveiy even of what is due, when he demands also what is not due ; the injunction is ordered on that part of the bill. The Chancellor does not consider the debt stated to be due from M. J. Stone to Daniel Jenifer, to be sufficiently established from the appearance of the books ; nor is he satisfied, that it is proper to be discounted in this case. On account of the distant residence of the defendants, T. and J. M. Daniel, a motion to dissolve the injunction will bs heard without their answer. After wiiich the plaintiff, by his petition, prayed for leave so to amend his bill as to aver, that his intestate had paid to this defendant, Travers Daniel, through his solicitor, in further part satisfaction of the decree, the sum of $120, the vouchers of which payment this plaintiff had discovered since the filing of his bill. JONES V. MAGILL. 189 the register is directed to endorse, or send a copy of the order to be served along with the writ of injunction. (A) The defendant, by his answer, admitted the payment of the £300, as alleged, and that the decree had been to that amount satisfied ; he also admitted, that the covenant had been entered into with the defendants, Travers and John, as stated ; but averred, that he had not been saved harmless, as stipulated ; that he had been compelled to pay large sums of money, and was still liable for other claims as executor ; to meet all which he had a right to collect and retain the balance due on the decree. In regju'd to the allegations of the petition to amend, this defendant, by a separate answer thereto, and agreement, admitted the payment as alleged. After which, the usual order nisi was passed, requiring notice to be given to the plaintiif to shew cause why the injunction should not be dissolved. On the 22d of July, IS 10, an answer was put in for the defendants, Travers and John, apparently in the handwriting of the plaintifTs solicitor; who, by a note in WTiting, agreed to receive it as such without oath. By this answer these defendants admitted most of the statements in the bill ; they averred, that they had offered and were ready to indemnify the defendant jNIichael, according to their covenant, the copy of which, as exhibited by the plaintiff, they admitted to be correct ; they stated, that they had filed their bill in this court against the defendant Michael, to compel him to account ; that he is in very great pecuniarj- difficulties ; and if he is permitted to collect the balance due on the decree, they will.be wholly unable to recover it from him. 27th Julij, 1810. — Kilty, Chancellor. — The motion to dissolve the injunction in this case was argued at the present term. The equity, or cause of complaint, was removed by the answer of M. J. Stone, releasing the £300 paid to T. Daniel. The petition to amend, which was since filed, respecting the sums paid to counsel, amountin<' to 120 dollars, is also answered by the agreement of M. J. Stone, to relinquish his claim to that amount. So that there would be no grounds for continuing the injunction, as between these parties only. But the question is, as to the effect of dissolvino- the injunction between M. J. Stone, the executor of T. Stone, and T. and J. M. Daniel as his representatives. And on the circumstances of this case, the Chancellor is of opinion, that the interests of the latter ought to be attended to so far as to prevent the receipt by M. J. Stone of the money due from Jenifer at present. It may be objected to the bill of T. and J. M. Daniel, filed the 2d of July, 1810, that it is not on oath ; but it is accompanied by a ver}- important paper, viz. the covenant or agreement between them and the executors of T. Stone, which would probably have been sufiicient to have had the suit against Jenifer entered for the use of the former. Considering M. J. Stone as an executor; and, therefore, acting as a trustee, he cannot be injured by the money due from Jenifer being retained until a final settle- ment can be made ; and as to his claims, for payments made, they art not set forth with sufficient certainty in his answer. An order may hereafter be made for havin"- the money levied, and brought into court ; but, at present, it is Ordered, that the injunction be continued till further order ; with liberty, however, for the complainant, Jenifer, to bring into this court the sum due, after deducting the discounts claimed, and allowed, as appears by the proceedings. The answer of T. and J. M. Daniel to the bill of D. of St. Tho. Jenifer, has not been considered in making the above decision ; and the manner in which it is put in is liable to some exceptions. After some other unimportant proceedings, the case seems to have abated by the death of the parties. (A) DiFFEXDERFFER t'. HiLLEN. — ^This suit was instituted on the 10th of Decem- ber, 1808, by John Diffenderffer, Charles Tinges, and George Smith, against John 190 JONES V. MAGILL. It is an ancient and well settled general rule, that where there are several defendants to the bill, no motion to dissolve the injunc- Hillen and John Marsh. The bill states, that before Baltimore was incorporated as a city, the then commissioners of the town had so graded Baltimore street continued and York street, from Jones' falls to Harford street, as that the water, falling into them, was conveyed in nearly equal proportions in the opposite directions to Jones' falls and Harford run ; according to which graduation they had regulated their improve- ments ; that by tlie act of 1796, ch. 68, s. 9, the grade of no street can be altered without the consent of the proprietors of the lots adjoining such street ; that without the consent of these plaintiffs, and contrary to law, the defendants, as city commis- sioners, had altered the grade of Baltimore and York streets, whereby there is, and will be a very considerable increase of water and filth conveyed to Jones' falls before their property, and that of others in like situation ; which, especially in the summer season, is matter of no small moment ; and, that the defendants are now actively- engaged in cutting down and adjusting those streets to the new graduation. Upon which the plaintiffs prayed for general relief, and for an injunction to prevent the alteration of the grade of those streets. 10//t December, 180S. — Kilty, Chancellor. — From a perusal of this bill, and an examination of the act of Assembly refeiTed to, the Chancellor is at present of opinion, that there is ground for the complaint made ; and that the injunction ought to be granted. Whether the act of 1797, ch. 54, makes any alteration of the pro- visions in the 9th section of the act of 1796, ch. 68, he is not prepared to say. But to prevent the injury which might arise by the interference of this court, in case the commissioners should appear to be acting within their authority, it is to be understood, that a motion to dissolve the injunction will be heard at any time, on such notice as shall be directed, either before, or after answer. The injunction to be issued as prayed, and this order copied thereon. On the 12th of December, 1808, the defendant Hillen alone put in his answer, in which he stated, that the alteration in the grade of the streets, as stated in the bill, had been made with the consent of the proprietors of the immediately adjacent lots ; that the plaintiffs owned no lots nearer than from six to nine hundred feet from those streets ; and that these defendants then had employed nearly twenty labourers, with carts, making the alterations in those streets ; which, when made, would be highly beneficial to the public in general. Upon which this defendant moved to have a day appointed to hear a motion to dissolve. 12//t December, 1808. — Kilty, Chancellor. — Ordered, that a motion for dissolving the injunction be heard on the 20th instant ; provided a copy of this order be served on either of the complainants, or their solicitor, on or before the IStli instant. The plaintiffs' solicitor admitted the service of a copy of this order, and the motion came on to be heard. 20//t December, 1808. — Kilty, Chancellor. — The motion for the dissolution of the injunction issued on the 10th instant was, according to appointment, argued on tliis day. Although the presumption is, and ought to be, that persons acting under the charter and ordinances of a corporation, will conform to the limitations therein contained; yet when a case is stated, on oath, which apparently shews a contrary proceeding, it becomes the duty of this court to interfere. The answer of the defendant, denying the grounds of the application, is, however, entitled to equal attention. The Chan- cellor was under the impression, from the bill, that some of the parties held property JONES V. MAGILL. jgj tion can be heard until all of them have answered. (^■) But to this, as to all other general rules, there are exceptions. As where the immediately, or very nearly fronting on the part of the street in which the work was to be done. And he was not, nor is he now satisfied, that the consent of every person, holding property fronting on Baltimore street and York street, was necessary to be obtained. And, from tlie exhibits filed with the answer, there is reason at least to doubt whether the commissioners have acted wrong ; if not to believe, that they have acted right. It is thereupon adjudged and ordered, that the injunction heretofore issued in this case be and the same is hereby dissolved ; leaving the parties to proceed in equity or at law as they may think proper. After which, on the 7tli of July, 1809, this suit was dismissed, with costs, by the complainants' solicitor. Whereupon the defendants obtained a bill of their costs from the register, and moved, tliat the plaintiffs might be ordered to pay the amount. iWi March, 1811. — Kilty, Chancellor. — On motion, on behalf of the defendants, it is Ordered, that the complainants, John Diffenderffer, Charles Tinges, and George Smith, pay to the defendants, or either of them, or to their solicitor, or their or his order, the sum of twenty dollars fifty seven and one-half cents ; being the amount of tlie costs taxed by the register on the dismissal of the bill of the said complainants ; or that they shew cause to the contrary on or before the 10th day of April next. Provided a copy of this order be served on the said complainants, or either of them, or left at the place of abode of any one of them, before the first day of April next. (i) Pra. Reg. 200 ; 2 Harr. Pra. Chan. 263 ; 3 Bac. Abr. 658 ; Eden Inj. 66 ; Wright V. Nutt, 2 Dick. 691. Stewart v. Barry. — This bill was filed on the 31st of August, 1809, by James Stewart, William Lorman, and William Gwynn, as executors of the late William Evans, against Robert Barry, John Stewart, David McMechen, and Thomas Yates — in which it is stated, that the defendants Barry and Stewart were the assignees of the defendant Yates, a bankrupt ; that as assignees they set up for sale, at public auction, a piece of land called Springfield, the title to which was represented as clear- and unquestionable, and the late William Evans became the purchaser, for the sum of $29,169 82; that all these transactions took place with the knowledge and concur- rence of the defendant McMechen, who held a mortgage on the land, at the time, to secure a large debt due to him ; that the late- William Evans was put into possession of the land ; and, under an impression that the title of the vendors was good, he had paid a part of the purchase money ; that it has been since ascertained, that the title is much encumbered and entirely defective ; and that since the death of Evans, the assignees of the bankrupt had instituted suit, and recovered judgment against these plaintiffs for the balance of the purchase money. Whereupon the plaintiffs prayed, that the sale might be vacated, &c. ; and, that they might have an injunction to stay the proceedings at law against them. It appears, that at the time when this bill was filed, the Chancellor was absent; and, according to the long established course, under such circumstances, it was submitted to a solicitor of the court, who was in no way concerned in the case ; who declared, and endorsed it on the bill as his opinion, that it contained sufficient equity to authorize the issuing of an injunction. Uj)on which sanction the register issued the injunction as prayed, subject to the opinion of the Chancellor, on his return to the seat of the court. And on the 7th of September, 1809, the solicitor's order for the injunction was confirmed by the Chancellor himself. On the 5th of Deceinber, 1809, the defendant McMechen put in his answer, in 192 JONES V. MAGILL. trustee and cestui que trust were both made defendants, and the trustee would not answer, a motion to dissolve was permitted to be which he admits the sale as stated ; but denies, in general terms, the alleged delects in the title ; and then sets forth various particulars, not responsive to the bill, going to shew, as he avers, that the vendors had a good and valid title ; that he alone, from the peculiar nature of the case, was interested in having the injunction speedily- dissolved. See. Upon the tiling of his answer, and before the other defendants had answered, he entered upon the docket and gave notice of a motion to dissolve the injunction. On the 20th of February, ISIO, the other defendants put in their answers separately, in which they admit, that the sale was made as stated by the plaintiiis ; but deny that there was any misrepresentation, or defect of title. After which, the motion to dissolve the injunction was brought on to be heard, on the notice which had been given imme- diately after filing the answer of the defendant McMechen. 7ih March, 1810. — Kilty, Chancellor. — Before the expiration of the time limited by the order, passed on the first or second day of the term for the dissolution of the injunction nisi, the counsel for the complainants shewed cause to the contrary, which was noted on the docket. It was objected, on their part, that the notice of motion to dissolve was entered on the answer of the defendant McMechen only ; and, that the answers of the other defendants were afterwards put in without a repetition of the notice. The Chancellor considers, that, according to the rules and practice of the court, the defendants are not entitled to a hearing of their motion at this term. It is thereupon continued till the next term, to be then heard ; but it will be in the power of the defendants, if they think proper, to give notice also of the motion to be then made. The defendants then gave notice of a motion to dissolve the injunction at the next term, when it was regularly brought before the court. 9/A July, ISIO. — Kilty, Chancellor. — The motion for dissolving the injunction in this case, came on to be argued according to the notice given, since which the bill, answer, and exhibits, have been considered. The ground of the complainants' bill was, that a good title could not be made to the land purchased by the testator, William Evans, from Barry and Stewart, the assignees of Yates. It is alleged therein, that at the time of the said sale, and before, it was publicly stated by Yates, the acting auctioneer, that the title was unquestionable. This fact is not expressly denied, either by the answer of Yates, who is made a defendant, or of McMechen, who is principally interested in the suit ; although they allege, that the right of the assignee, and of the mortgagee, was all that was sold. But the equity of the complainants does not rest on tliat fact alone ; as the question of the title is proper to be considered without any such express statement or assur- ance respecting it. Although it was contended in the argument, that the right only being sold, the purchaser was bound to take it at his risk. This position cannot be admitted, except in cases where the title was expressly stated, or known to be doubtful, and a reduced price was given accordingly. It does not appear, from the several answers, that there is such a clear title to the land as those who claim under the purchaser ought to have before the money is paid. The legal title set up being only as to a part, and the equitable one being somewhat uncertain. The defendant McMechen states, that he believes Yates had a good and valid title to the land called Springfield, and that he bought the greater part from the Baltimore Company, the deeds for which are regularly acknowledged and recorded ; and the equitable title to a part derived from James McFadon is also set forth. The defendant Yates refers, likewise, to the Baltimore records. But it cannot be expected. JONES V. MAGILL. I93 tnade on tlie answer of the cestui que trust alone ; and indeed where there appeared to have been fraud and colkision, the cestui que trusty aUhough not a party to the suit, was allowed to move for a disso- lution of the injunction ;(;') and the injunction may be dis- solved as against some of the defendants only ; or it may be dissolved on the answer of an insolvent, who has no interest in the matter, upon his speaking to facts peculiarly within his own knowledge before his insolvency ;(/>:) and so where it appears from the nature of the case, that the responding defendant is the only one who can speak, from his ov/n knov.dedge, in relation to the facts on which the injunction rests ;(/) as where the defendants who have not answered are infants ; and so too where it appears, that the answer of a nonresident defendant cannot be material as to the facts on which the injunction is founded. (??2) that the injunction of this court should be dissolved upon the strength of titles thus set out, and not answering the interrogatories in the bill. The conduct and expression of Evans, in his lifetime, are relied on to prove his assent to the purchase, after the doubts as to the title were known. But the answer of the assignees shews only, that, although he was advised to the contrary, he was determined to abide by the contract, by paying for that part to which a good title could be given ; and that he washed to receive a good title for the whole. And the directions in his wull do not prove his consent to take the whole as it stood. Con- sidering that the equity, on which the injunction was granted, still subsists, to wit, the uncertainty of obtaining a valid title after the payment of the purchase money; and its application to the claim against the land. It is ordered that the said injunction be continued till the final hearing, or further order. Without any further proceedings being had in this case, it appears to have beea some time afterwards dismissed by the plaintiffs. (j) Nugent V. Smyth, Mosely, 354. (k) Joseph p. Doubleday, 1 Ves. & Bea. 497. (Z) Boheme v. Porter, Barn. Chan. Rep, 352; Rowcroft v. Donaldson, 1 Fow. Ex. Pra. 286. (wj) Sholbred v, Macmaster, 2 Anstr. 366. Williams v. Hall. — It appears, that a bill had been filed previous to the institu- tion of this suit, by James Williams and Solomon Hillen, against Edward Hall, David Stewart, and David C. Stewart, to obtain an injunction, which having been filed and submitted to the Chancellor, he granted the injunction, but suggested, that the bill seemed to be too indistinct and merely argumentative in regard to the plain- tiffs not being interested as partners with the Stewarts. In consequence of which the plaintifi's afterwards, by their petition, stating, that no process had been issued, or served, prayed leave to withdraw their bill and exhibits from the files of the court. Upon vvhich, on the 6th of July, 1S09, the leave was granted as prayed. This bill was filed on the 15th of July, 1S09, by the same plaintiffs, against the same defendants. From which it appears, that the plaintiffs were partners in trade, which they conducted by Williams then residing in the West Indies, and Hillen in Baltimore ; that Hall also then resided in the West Indies, carrj'ing on trade there as 25 ^ 194 JONES V. MAGILL. In the case under consideration the equity arises out of the facts as alleged in the bill, that Harding and Magill have not only a merchant ; and that the Stewarts were residents of Baltimore, and partners in trade under the firm of David Stewart &. Son ; that this firm of David Stewart &, Son had sent the schooner Holstein with a cargo on a voyage fo the West Indies, consigned to Hall, who had sold that outward cargo ; and, hy various dealings in i-elation to that vessel, had made sundry advances, by which those who owned her, and were jointly concerned in her, had become indebted to hLm in a very considerable sum ; that the defendant Hall had instituted a suit against these plaintiffs, with David Stewart & Son, as the joint owners of that vessel, and recovered judgment against them for the sum of $13,44S 53 and costs ; which judgment had been affirmed by the Court of Appeals ; and on execution being issued thereon the plaintiffs had superseded tlie judgment, and given bond with surety according to law ; that the defendants David Stewart & Son had become bankrupts, in consequence of which the whole liability and weight of the judgment had fallen upon these plaintiffs ; that the plaintiffs were in truth not partners of David Stewart &, Son, or in any way inter- ested with them in the schooner Holstein ; which fact, although well known to these defendants, these plaintiffs had been unable to shew and establish on the trial at law. And for the purpose of more perfectly illustrating and explaining the whole transac- tion, they prayed that the defendants might be ordered to produce their books of accounts, &,c. Wherefore they prayed for an injunction to stay the proceedings at law, for general relief, &,c. The plaintiffs, with their bill, offered an injunction bond with surety in the usual form, reciting, in the condition, the judgment of the Court of Appeals, but taking no notice of the supersedeas. 15th July, 1819. — Kilty, Chancellor. — Let subpcena and injunction issue in the usual form according to the prayer in the original bill. On further consideration of the bill on which the injunction was ordered as above, the Chancellor thinks it proper to state, that he will hear a motion for dissolving, if made according to the practice of the court in other respects, without waiting for the answer of Stewart Sc Son, who may not be interested in the event of the suit, and whom the other defendant cannot compel to answer. On the 1.5th of Februaiy, 1810, the defendant Hall filed his answer, in which the facts and circumstances set forth in the bill are fully answered, explained away, or denied ; and upon the filing of it, he caused to be entered on the docket a motion to dissolve the injunction ; and on the same day, obtained the usual order authorizing notice to be given to shew cause. But soon after obtaining this order, on discover- ing that the injunction bond was, as he conceived, defective, he moved for an imme- diate dissolution of the injunction on the ground of its having been improvidently granted. '2Slh February, 1810. — Kilty, Chancellor. — In this case, which stands on notice of a motion to dissolve the injunction, it was urged by the counsel for the defendant, that independent of the main question, the injunction ought to be immediately dis- solved on account of the bond not covering the judgment by supersedeas, which stands injoined with the first judgment. The practice has been, in case of any defect, or deficiency in the bond, to require further security and not to dissolve the injunction for that cause. It is therefore, ordered, that unless an injunction bond, as required by law, to secure the payment of the judgment confessed as a supersedeas mentioned in the bill, and in the injunction, be filed in the chancery office with sufficient sureties on or before the 12th day of March next ; the said injunction as far as it relates to th« JONES V. MAGILL. I95 fraudulently concealed and disposed of property which ought to have been applied in satisfaction of the debt with which the supersedeas, will, on application after that day be dissolved. Provided a copy of this order be served on the complainant Williams, or his counsel, or either of the super- seders on the judgment so confessed, before the 7th day of March next. In compliance with this order the plaintiffs filed another bond, in the condition of which the judgment confessed as a supersedeas was expressly recited in the usual form, which bond they submitted for approbation. loth March, 1810. — Kilty, Chancdlor. — The within bond is received for the pre- sent. If any objection should be made thereto, and ruled good, a further time will be fixed for the execution of another bond. On the 7th of July, 1810, the defendant, David Stewart, put in his separate answer, by which he explained away or denied most of the principal facts and circumstances stated in the bill. And on the 6th of August, 1810, David C. Stewart filed his answer, in which he refers to, adopts, and relies upon the answer of his partner and co-defendant, David Stewart. \2th September, 1810. — Kilty, Chancellor. — The motion to dissolve the injunction in this case came on to be heard according to notice at the present term, and was fully argued by the counsel on each side. In this case, as in others of a similar nature, whatever might be the result on the final hearing, it would be proper to continue the injunction if the answer was evasive and not full ; if the answer did not deny the facts on which the equity of the com- plainants rested; and also if the books and papers, exhibited in compliance with the prayer of the bill, shewed, that the facts were different from what the defendant con- ceived and represented them to be. But the answer of the defendant Hall certainly contains a full and complete denial of the equity stated in the bill ; and the documents called for by the complainants, go more to corroborate than to weaken that denial ; and Hall's answer is also sustained by those of Stewart St Son, filed since the notice of the motion to dissolve. Among the points, deducible from the charges made in the bill, the most important is, that the complainants Hiilen and Williams were not interested with Stewart & Son in the Holstein. It would make an end of the case, and was therefore most strenuously urged by the complainant's counsel. But it is a remarkable circum- stance, that, although the bill may be said to be argumentative with a view of induc- ing the court to believe this to be the fact, it is not in any part thereof expressly stated to be so. And the Chancellor is more particularly induced to notice this cir- cumstance, from his recollection of having pointed it out as one of the objections to the bill that was first filed. Upon the whole it is ordered, that the injunction heretofore issued in this case, be and the same is hereby dissolved. The plaintiffs, by their petition, filed on the 9th of February, 1811, without oath or aflidavit of any one, stated, that they believe, that further answers and documents which David Stewart could make and produce, relative to the matters and things contained in the bill of complaint, would materially promote the developement of the facts alleged in it, and particularly the following books, papers and docu- ments, viz. : The ledger of the said David Stewart &. Son, from the begin- ning of the year 1799, till the dissolution of their partnership ; their journal, day book, &c, &c. And therefore pray, that David Stewart fit Son may be ordered to 196 JONES r. MAGILL. plaintiff is charged ; but that they have done so, and indulged and settled with Harding, who was the principal debtor, in a manner produce in court all (he aforesaid books, papers and documents, if in their possession or control ; or if not, that they state particularly what has become of them, and in whose possession or control they now are. Wih Fcbniary, 1811. — Kilty. — Chancellor. — The Chancellor has considered the within petition. Tlie order prayed for cannot be made witliout a compliance with the requisites of the act of 179S, ch. 81. After which one of the plaintifls, Williams, filed his affidavit of the truth of the facts and allcg-ations stated in their petition, asking for the production of books and papers. loth February, 1311. — Kilty, Chancellor. — On considering again the within peti- tion, together with the afiidavit now annexed thereto : it is required and decreed, that David Stewart and David C. SteAvart, defendants in the suit referred to, in the said petition, do forthwith produce to this court, the following books and papers, viz. : The ledger of David Stewart &. Son, from the year 1799, till the dissolution of their partnership. See. &c. or that they forthwith produce to this court copies of the said several books and papers certified by a justice of the peace ; if the said books and papers respectively are in their possession or power. Provided, that inasmuch as the application is made by petition, and not by motion in court; any motion or cause shewn against this requisition and decree will be heard at any time during the first week of the ensuing February term. A solicitor of the defendants having been heard in shewing cause against making this order absolute : 25//t March, 1811. — Kilty, ClianceUor. — During the present term, cause wag shewn by R. G. Harper, counsel in this suit for Hall and Stewart, against the above decree ; but on considering the argument urged by him, the Chancellor does not think the cause shewn to be sufficient against the said decree, Avhich therefore remains absolute except as to the time of producing the said books and papers. Pro- vided, that a copy of this order and of the said decree be served on the said D. Stewart and D. C. Stewart, or cither of them, before the 10th day of April next. On the 25th of Jul}', 1311, David Stewart by his petition, on oath, stated, that the firm of David Stewart &. Son being embarrassed in their commercial concerns, trans- ferred all their property, estate and effects, including their books, papers, letters and accounts of every description, to Elias EUicott, William Winchester, and John Mun- nykhysin who is since deceased, in trust for the benefit of their creditors ; that David Stewart was appointed by them their agent to settle the affairs of the firm of David Stewart Sc Son, and in that capacity he has ever since held possession of those books and papers ; that Ellicott the trustee objects to the removal of them ; and therefore this defendant David Stewart submits, whether they are so far in his possession and control as to enable him to comply with the requisition. 25th July, 181 1. — Kilty, Chancellor. — The Chancellor has already passed such orders on the su.bject mentioned in the within petition as he thought proper. If the books and papers were in the possession of any other person, he would be ordered to produce them. The sentiments expressed by Elias Ellicott, and his unwilling- ness to have the books removed, can have no cffoct on the court, and are not proper to be stated as an excuse for not complying with the order thereof. After which tlie defendant having failed to produce all the papers as ordered : — JONES V. MAGILL. 197 very prejudicial to the testator of the plaintiff, who was only the surety of Harding ; and, therefore, that the plaintiff should be discharged. In answer to this statement of facts, Magilly as to some most material particulars, responds merely by way of hearsay from the defendant Gitfings ; and the answer of Harding, looking to the allegations of the bill, is that of a particeps J'raudis, and as such cannot be allowed to be of any avail to Magill, the creditor 2~ih Sepiember, ISll. — Kilty, Chancellor. — On motion of the petitioners, it is Ordered, that Stewart &, Son produce and lodc^e in this court, such of the papers mentioned in the former order as are not yet exhibited, before the first day of No- vember next. After which, the case having; been brought on for a final hearin;^, it was, on the 29th Februar)', 1816, decreed, that the defendant Hall pay or refiind to the plaintiffs the sum of $7,359 55, with interest from the 17th May, 1S08, and costs. Chapline v. Beatty. — This bill was filed on the Gth of January, 1S07, by Joseph Chapline against Charles A. Beattj*, Abner Ritchie, John T. Mason, and James Williams. It states, that the defendants Beatty and Ritchie had, as administrators of Charles Beattj', deceased, obtained a judgment in an action of debt against this plaintiff, for £351, with interest thereon from the 16th of February, 1791 ; and in an action on the case they had also obtained judgment against this plaintiff for the sum of £534 3s. bd., bearing interest from the 4th of December, 1801; which judgments were rendered at the same time upon an agreement between this plaintiff and the defendants Beatty and Ritchie, that there should be such deductions and discounts from them as could be made to appear within a limited time, to Walter S. Chandler; that this plaintiff had produced his vouchers to the arbitrator Chandler, who postponed the consideration of the matter to another time ; that the defendants Beatty and Ritchie then produced other claims against this plaintiff, not embraced by the judgments ; that the arbitrator, without notice to this plaintiff, or paying due regard to his vouchers, made and returned an av.ard before the appointed time, by which he gave to this plaintiff credit for less than he was entitled to, and applied the payments to one of the judgments only, leaving the other to bear interest from the longest time ; that afterwards the judgment in the action of debt was entered for the use of John T. Mason ; and that in the action on the case for the use of James Williams, who had caused writs o£ fieri facias to be issued and levied on the property of this plaintiff for the whole amount. Whereupon the plaintiff prayed for general relief, and for an injunction to stay the further proceedings at law. The plaintiff gave two separate injunction bonds, one to the defendants Beatty and Ritchie, for the use of Mason, and the other to Beatty and Ritchie, for the use of Williams, for the respective amounts of the several judgments. 9lh Jamianj, 1807. — Kilty, Chancellor. — Let subpcrna and injunction, or injunc- tions issue as prayed ; provided, that any motion for dissolving shall not be delayed for want of the answers of the defendants Mason and Williams. On the 18th of May, 1807, all the defendants put in their answers, in which they denied all the material matters of fact upon which the plaintiff's equity was founded. The answers of Beatty, Ritchie, and Mason, were sworn to before a justice of the peace, in the District of Columbia ; and the clerk of Washington county, of that District, certified, that he was then and there duly commissioned as a justice of thg jgg JONES V. MAGILL. and alleged party to the fraud, (n) The loan of the $500 was made by the defendant Gittings ; the note for it, on which the judgment at law was obtained, was given to him ; and it is admitted, that he, as having been privy to the whole transaction, is able to speak of the facts from his own knowledge ; and, therefore, it is important that he should answer, as well because he is disinterested, having settled his final account and been discharged as guardian, as because Magill, who claims under him, will be bound by his answer.(o) It is true, that a defendant has no direct means of enforcing an answer to the bill .from his co-defendant ; but, he may urge forward the plaintiff to do his duty in that particular ; and, certainly, at the instance of a defendant anxious to have the restriction of an injunction removed, the court would suffer no unreasonable delay from the plaintiff. A responding defendant may lay the plaintiff under a rule further proceedings, which the court will not hesitate to enforce so as to compel him to extract an answer from a tardy co-defendant with as little delay as possible ; or else the bill may be dismissed and the injunction dissolved ',{p) for, in equity as at peace. Upon these answers the defendants gave notice of a motion to dissolve; and on the 7th July, 1S07, the injunction was thereupon dissolved. (71) Bridgman 2\ Green, 2 Yes. 629. (0) Osborn v. U. S. Bank, 9 Wheat 832 ; Field v. Holland, 6 Cran. 24. (p) Anonymous, 9 Ves. 512 ; Depcyster v. Graves, 2 John. Ch. Ca. 148. ToNC r. Oliver.— This bill was filed on the 22d of October, 1S03, by William Tong against Richard Oliver, and also Robert Berrj' and Peter Snyder, adminisbators of Benjamin Abbot. It states, that the plaintiff, in the year 1798, purchased of the intestate a tract of land in Pennsylvania; that he paid part of the purchase money, gave his bond for £300, being the balance, and obtained possession of the land ; that Abbot gave an order on this plaintiff in favour of the defendant Oliver, for the whole sum due on the bond ; that on presentation of the order, the plaintiff paid £ 200, and executed his bond for the remaining £ 100 to, and in the name of the defendant Oliver; that the land was subject to an incumbrance for £32 at the time of tlie sale, which the plaintiff would be compelled to pay and satisfy ; and yet, that suit had been brought on the bond, judgment obtained, and an execution levied on the plain- tiff's lands ; that Abbot is since dead, and the defendants Berry and Snyder were his administrators ; upon which an injunction was prayed for and granted to stay the proceedings at law. On the 19th May, 180S, the defendants Berry and Snyder put in their joint answer ; the pui-port of which is sufficiently noticed in the Chancellor's order. On the same day, the defendant Oliver not having answered, they obtained the usual order to give notice of a motion to shew cause why the injunction should not be dissolved at the next term. 1st March, 1S09.— Kilty, Chancellor.— The motion for dissolving the injunction was made by the defendants' counsel, no counsel for the complainant being in court. But as, according to the rule and practice of the court, the defendants would have been entitled to a dissolution, if the answers were considered sufficient, it is JONES V. MAGILL. jgg law, where there are necessarily several defendants, the court will not continue the restriction which has been imposed upon one of deemed proper to determine the case as it stands, -without any cirgument by the complainant. The answer of Oliver is not filed. The Chancellor, without giving a positive opinion, is inclined to think, that unless it should be shewn, that he had some know- ledge of the transaction, or that his answer might be material, it might be dispensed with, as he was only the nominal plaintiif at law. But the answers of Berry and Snyder are not considered sufficient. The answers of administrators must always be taken with a view to the reasons for their belief or knowledge of facts. In this case they state such contradictory circumstances as give room to doubt their knowledge of them. The bill states, that the £ 300, for which the plaintiff gave his bond, was the half of the purchase money. The answer, without a positive denial of that fact, speaks of it as the whole consideration. The defendants allege, that the £200, received by Oliver from Tong, included the £32 lien on the Pennsylvania tract; and they after- wards state, that Tong purchased the land subject to that incumbrance, and many others ; and the argumentative part of their answer, as to the £300, has been already noticed. They further allege, that they believe the £32 was taken into consideration in Tong's bond to Abbot ; and, that they knew it was deducted in the bond given to Oliver. So that, according to their statement, this sum has been twice allowed; although the land was sold subject to it. It appears on the whole, that it will be the most equitable course to continue the injunction till final hearing or further order, with a view to ascertain the real state of the transaction ; and it is ordered to be continued accordingly. After which the responding defendants, with a view to urge forward the plaintiff to extract an answer from the defendant Oliver, or to bring the case to a final hearing, called on the court to compel him to proceed. 29th December, 1809. — Kilty, Chancellor. — On application of the defendants, rule further proceedings by the fourth day of Februarj' term, IS 10 ; provided a copy of this order be served on the complainant, or his counsel, before the first day of February next. On the part of the responding defendants, the case was afterwards again submitted to the court on notes by the defendants' solicitor, in which it was stated, that this cause stands under a rule further proceedings, which expired on the fourth day of February term ; that Oliver had not answered, and the responding defendants had no means of compelling him to answer. Upon this state of the case the defendants, who hatl answered, prayed a dismissal under the rule ; or that the injunction be dissolved, upon such terms as the Chancellor may deem proper. 1th April, 1810. — Kilty, Chancellor. — On that part of this application, praying for a dissolution of the injunction on the former notice, the Chancellor refers to his order of the 1st of March, 1809. On that part praying for a dismissal on the rule, the Chancellor considers the session of the court is not at present open for such a motion. And on the application in writing by the counsel for the complainant, it is ordered that a commission issue to the persons named by him, unless commissioners are named by the defendant so as to be struck before the first day of May next. Provided a copy of this order be served on the defendant's counsel before the 20th inst. After which a commission was issued, testimony taken, and the case submitted for final hearing ; without the answer of the defendant Oliver. 200 JONES V. MAGILL. them, unless the plaintiff shews, that he is using all due diligence to have all the others brought before the court. (9) These defendants, who now ask for a dissolution of this injunc- tion, have not yet, by a rule further proceedings, required the plaintiff to prosecute her suit without delay ; and, consequently, they cannot justly complain of the injunction being continued until the filing of the answer of the defendant Gittings ; which, it is evident, may bring into the case an acknowledgment of facts, that may go far to sustain, if not entirely to support the equity upon which the plaintiff's injunction rests. Hence, as there is now no ground to impute to the plaintiff any unreasonable neglect in the prosecution of her suit ; and the answer of a defendant, under whom this creditor, Magill, claims, who, it is admitted, can speak from his own knowledge of some of the material facts charged in the bill, has not yet been put in ; the hearing of the motion to dissolve cannot be taken up until his answer has been brought in ; or, until it may be inferred, from the laches of the plaintiff, in not endeavouring to have it brought in, that it would contain nothing likely to sustain her case ; or until such implied notice of the bill has been given to the non-responding defendant, if he be not resident within the State, as will enable the court to proceed without his answer, (r) 23d May, 1810. — Kilty, Chancellor. — The commission, which was ordered, at the present term, has been returned, and the case is submitted for final hearing ; an abstract being- made on the part of the defendants. Although the real state of ttie transaction is not disco\'cred very clearly from the proceedings ; yet, as it appears in proof, that the complainant refused to produce the agreement, thereby adding weight to the testimony of Peter Snyder respecting it, it is not considered necessary to continue the injunction in force. Whereupon it is Decreed, that the injunction be dissolved, and the bill dismissed, but without costs. (9) Gow.Part. 179. (r) Paul v. Nixon.— This bill was filed on the 25th of August, 1796, by John Paul against John Nixon, Benjamin Fuller, John Donaldson, and David H. Cunning- ham, surviving executors of William West. The bill states, that the plaintiff had, on the 23d of December, 1777, given his bond to the defendants' testator, with a condition for the payment of the sum of four hundred pounds, which he signed without reflection as to the interest reserved; that to correct the mistalce in this respect, the defendants' testator, soon afterwards, signed and delivered to the plaintiff a written agreement, whereby he, the obligee, agreed that he would demand no more than three per cent, per annum until the debt was paid ; that this agreement the plaintiff had lost; that the defendants had brought suit and obtained judgment for the whole amount, with legal interest, without giving him credit for certain payments, •which he had made ; and without having the sum really due adjusted, according to the terms upon which the judgment was given, which were, that the amount of interest accruing on the bond should be ascertained by William McLaughlin. JONES V. MAGILL. 201 Whereupon it Is ordered, that the injunction heretofore granted in this case be and the same is hereby continued until the comino" Whereupon, the plaintiff prayed for an injunction to stay the proceedings at law, &c., which was granted as prayed. The defendants put in their answer, in which they admit, that they had obtained a judgment as stated ; and as to the agreement, they aver that they have no knowledge of it ; but they say, that they verily believe, that there never was any such instru- ment of writing made by their testator. In regard to the payments alleged to have been made by the plaintiff, the answer is entirely silent. Upon these circumstances the case was submitted on the notes of the solicitors of the parties. 7th January, 1800. — Hanso%-, Chancellor. — This cause is before the Chancellor on a motion to dissolve made on filing the answer. The bill, answers, exhibits, arguments of counsel in writing, and all other proceedings, have been by him read and considered. By the written argument of the defendants' counsel, the Chancellor is informed, that they submit the cause for final decision on the bill and answer, but there is no submission on the complainant's part ; and it is only the motion to dissolve, which was made as aforesaid by the defendants' counsel on putting in Lheir answer, that the Chancellor can decide on at present without the complainant's consent. In fact the principles and practice of this court seem, on this occasion, not to ha\e been recollected. It is therefore proper to say something relative to the said princi- ples and practice. When a bill is filed stating, on oath, just grounds to be relieved from a jud"-ment at law, the complainant, on filing likewise a bond with sureties approved by the Chancellor, for securing to the defendants the money recovered 7iisi, &.c. obtains an order for an injunction, which is to continue until further order. If the defendant, by his answer on oath, denies those matters, on which the injunction was obtained, on motion to the Chancellor he generally obtains an order dissolving the injunction. The complainant, however, if he thinks proper, may proceed, after the dissolution, to establish, by proof, the allegations of his bill ; and if he succeeds, either the injunction is renewed, or other relief is granted by the final decree, as is proper for the circumstances of the case. Every complainant, on the filing of the answer by the defendant, is entitled to have tiie cause set down for final hearing on the bill and answer. And for this plain reason : by so doing he admits every thing contained in tlie answer to be true, and that nothing contained in his bill is tnae except what is admitted by the answer. So that it is impossible for the defendant to be injured by a submission on bill and answer. But, if a defendant were entitled to have the cause set down on bill and answer, it is plain, that he could thereby preclude the complainant fi-om the oppor- tunity of establishing his bill by inditl'erent testimony, and would in short have tlie cause only in his own power. For, it cannot be unknown, that on final hearing, nothing alleged in the bill is to be considered as established unless admitted by the answer, or proved by indifferent testimony. If indeed the defendant were entitled to have the cause set down for final hearing, on bill and answer, it must be on terms similar to those of the complainant's setting down; viz. that everything contained in the bill is ti-ue, that is to say, the rule must be reversed. But there is no such practice, nor does it by any means, in the present case, appear to be the meaning of the defendants to admit the complainant's allegations. On the contrarj-, they have denied, so far as they can deny, the said allegations. There never has been a case in this court, where the defendant had less reason 202 JONES V. MAGILL. in of the answer of the defendant Jolm F. GdttingSj and untfl further order. The defendant Magill, by his petition, referring to the previous proceedings, stated, that the defendant Gittings, for a long time previous to the fiUng of the bill, and then did reside out of the limits of this State : which, as he believes, was known to the plaintiff when she instituted this suit; and yet, she had not stated the fact in her bill and prayed for an order of publication, in place of a subpcena against him ; whereupon the petitioner prayed, that the plaintiff might be compelled to proceed against the defendant Gittings without delay, &c. than the present defendants have, to expect success on a motion to dissolve, made on filing the answer, witliout any submission on the part of the complainant for a final decision. Had the complainant made such a submission, it would have amounted to a total abandonment of his application for relief, because in case of such submission, as has already been said, eveiy part of the answer would be considered as admitted ; and no part of the bill, except what is admitted by answer, would be of any avail. Of comse the decree would be for immediate dissolution and dismission of the bill. The injunction was granted on two grounds. The bill alleged, 1st, an agreement in writing of the deceased to take only three per cent, interest, instead of six, for ■which judgment is entered : 2d, the payment of a sum for which no credit is given. The answer does not expressly d^iy the agreement ; although the defendants say they do not believe that it ever existed. As to the payment, which is the most sub- stantial ground, the answer says not a syllable. How then is it possible, on the pre- sent motion, to expect an order for dissolution. The Chancellor has taken the trouble of giving a full explanation ; because it is his custom, aim, and wish, to have the principle's and practice of this court under- stood, and particularly where some of the parties are not residents of this State. As the counsel complains of delay, and mentions the anxiety of his clients to obtain an early termination of tliis cause, the Chancellor must aver, that little delay has proceeded from this court. He will go further, as he conceives he may do with pro- priety, and suggest what is proper to be done for expediting the cause. The defend- ants may obtain a rule for further proceedings, &c. This wiU either oblige the complainant soon to take out a commission, or will soon put him out of court. And if a commission be t;iken out, a little diligence and vigilance on the part of the defendants will obtain an early return of the commission ; or put it in their power to shew, that delay is sought by the complainant. Now in cases of injunction, obtained on filing the bill, the Chancellor has always thought it his duty to discourage, a.s much as he could, consistently with a fair administration of justice, all studied or needless delay on the part of the com- plainant. It is ordered, that tlic injunction in this cause heretofore issued, shall continue until final hearinjr or further order. After which, on the 17th of December, 1803, by direction of the plaintiff, the injunction was dissolved, and the bill dismissed with costs. MARGARET HALL'S CASE. 203 Ibth J\})vemher, 1825. — Bland, Chancellor. — If the plaintiff fails to proceed against the defendant JoJm F. GittingSj for the purpose of compelling him to appear and answer, or of having the bill, as against him, taken pro confesso, or to cause publication to be made against him, as an absent defendant, on or before the tenth day of the next term, then the other defendants may again move, according to the usual course, to have the injunction dissolved. After which the plaintiff, with the leave of the court, so amended her bill as to state, that the defendant Gittings was a nonresident ; and, on the 1st of February, 1826, obtained an order of publication against him in the usual form. On the 27th September, 1826, the defendant Gittings filed his answer, after which the motion to dissolve was renewed. 3d March, 1827. — Blaxd, Chancellor. — This case having been submitted on the motion to dissolve the injunction, and all the defendants having now so answered, as completely to remove every ground of equity set forth in the bill, it is Ordered, that the injunction heretofore granted be and the same is hereby annulled and dissolved. MARGARET HALLS CASE. A w-idow, who elects to take the estate devised to her, in lien of dower, is to be deemed a purchaser for a fair consideration to the value of her dower, and must have her claim sustained as a lien, to that extent, in preference to creditors. This case arose upon a creditor's bill, filed on the 5th of October, 1825, by George Mackubin and Margaret Hall, the widow and executrix of Joseph Hall, deceased, against his devisees, Samuel Mattheios, and others ; alleging, that his personal property was insufficient to pay his debts, and praying, that his real estate might be sold for that purpose. A decree was passed on the 30th of June, 1826, for the sale of the realty accordingly ; and the trustee reported, that he had made sale of a part of it, which was finally ratified on the 1st of March, 1827. On the first of March, 1827, the plaintiff, Margaret, by her petition stated, that her late husband had, by his last will, devised to her a large portion of his estate, to hold a part during her life, 204 MARGARET HALL'S CASE. and another part for a term of years ; that she had elected to take under the will of her husband, huraediately after his death, when she was unacquainted with his affairs ; but that it is now ascer- tained, that the claims against his estate will absorb so much of it, as, if paid to her exclusion, will deprive her of all benefit intended by the will ; and leave her in a much worse situation than if she had rested altogether upon her common law rights. And, there- fore, as her election was improvidently made, and at a time when she was destitute of the information which alone could enable her to act knowingly upon the subject, she prays that it may be annulled, that she may be allowed the value of her dower, or be relieved according to the nature of her case, &c. bth March, 1827. — Bland, Chancellor. — This case having been submitted on the application and petition of Margaret Hall, the proceedings were read and considered. The will of the deceased husband of this widow lay before her, and presented to her a choice between the estate therein bestowed, and that given by the law. In her election to take under the will, there is no apparent room even to suspect fraud, nor has the exist- ence of any been intimated ; and it is difficult to perceive how there could have been any mistake. But, supposing it possible to show that a mistake had occurred, I should require from her a strong and clear case of misapprehension. She has heretofore formally made her election in the manner prescribed by law, and has solemnly reaffirmed that choice by bringing this suit. An election thus ■ deliberately made, repeated and adhered to, ought not to be lightly shaken or easily annulled. This widow, must, therefore, be held firmly bound by her election ; and can have no relief, but such as maybe altogether compatible with the choice she has thus made,(a) A devise, which is merely of the nature of a donation, or that appoints persons to take as heirs in place of those designated by the law, must certainly be considered as void against creditors. But a devise in lieu of dower, is one of a different character, and of much higher merits. It discharges a highly favoured debt due from the testator ; it relieves his real estate from a lien imposed by the law in favour of his wife, in preference to all others, with which he himself could have encumbered it, by any contract of his own. In the language of the act of Assembly, a widow electing to take (a) Butricke v. Broadhurst, 1 Ves. jun. 171 ; S. C. 3 Bro. C. C. 83 ; Wake u.Wake, 1 Ves. jun. 333. MARGARET HALL'S CASE. 205 under the will of her husband, is to " be considered as a purchaser with a fair consideration. "(&) It is clear, therefore, that this devise is fraudulent, as against creditors, only so far as it exceeds the value of the dower, in lieu and discharge of which, it was given, and has been accepted. The creditors have associated themselves with the widow and devisee of the deceased, and have asked to have the real estate sold for the payment and satisfaction of all. But these creditors now, it seems, propose to have their claims first satisfied, in pre- ference, and exclusion of the devise to the widow. They who are the widow's opponents, would thus bind her to her election to take under the will, which satisfied her claim that had a preference over theirs ; and yet they would leave her to take, by that devise, nothing, or less than the amount of her legal claim. This cannot be allowed. They who ask equity must do equity. These creditors must either permit the widow ta take to the whole amount under the will, as is her choice, or allow her to obtain full satisfaction for her dower ; because to the value of that, at the least, she is both at law and in equity, " a purchaser with a fair consideration ;" and to that extent, therefore, the devise must be sustained. The widow is clearly entitled to one, or the other ; either the devise, or the dower ; and since her taking the whole of the subject devised, which was and is her choice, has been objected to, she must be allowed to take, as devisee, to the full value of the dower which she has relinquished, but no more.(c) Therefore it is Ordered, that the said Margaret Hall be, and she is hereby allowed one-seventh part of the proceeds of the real estate in the proceedings mentioned, in bar and satisfaction of all that portion of the real and personal estate devised to her by her late husband, Joseph Hall, and which property so devised she had elected to take in lieu of her dower. (b) 179S, ch. lOL subch. 13, s. 5; Suj. V. &. P. 257.— (c) Burridge r. Bradyl, 1 P. Will. 127 ; Blower r. Morret, 2 Ves. 420 ; Davenhill i-. Fletcher, Amb. 244 ; Heath v. Denby, 1 Russ. 543. 206 HANNAH K. CHASE'S CASE, HANNAH K. CHASES CASE. Where a matter, -which is properly the subject of a petition, is brought before the court in that form, the new facts tlierein set ibrth, which are not denied by a written answer on oath, must be taken to be true. The appointment of a receiver does not involve a determination of any right ; but it can only be made at the instance of a party who has an acknowledged interest, or a strong presumptive title in himself alone, or in common with others ; and where the property itself, or its rents and profits are in danger of being materially injured or totally lost. If a defendant demurs and pleads to the same matter, his plea overrules his demurrer ; and so if he pleads and answers to the same matter, his answer overrules his plea. To make a decree a good bar in a subsequent suit, it must be shown, that the matter of the bill was res judicata ; that there was an absolute determination by the court that the party had no title. A solicitor is not permitted to reveal the confidential communications made to him by his client, either before or after the termination of the suit ; but, as it is the privilege of the client, he may waive it, and thus make the solicitor a competent witness. An absolute sale to the husband, with a condition for a re-purchase, not being a mortgage, vests in him an estate in fee simple, of which his wife is dowable. The acknowledgment of the wife, in the form prescribed by the act of Assembly of a lease for years made by her husband, can only operate as a bar of her dower during, and to the extent of the lease. In equity the widow may have an account of the rents and profits of her dower from the time her title accrued. Where the property is incapable of division, dower may be assigned in the form of a rent, distrainable of common right. This bill was filed on the 22d of November, 1821, by Hannah K. Chase, as the widow of the late Samuel Chase, against Samuel CJiasey and others, his heirs, and some others, to recover dower in a house and lot in the city of Baltimore, called the Fountain Inn. To which bill all the defendants answered, and testimony was taken. The heirs alleged, that the late Samuel Chase had not such a legal interest in the property in question as to entitle the plaintiff to dower ; and that even if she ever had been entitled to dower, she had relinquished her claim, as was shown by the records and the agreement by which former suits, in relation to this same claim, had been brought to a close. The letter of the solicitors of this plaintiff, dated 28th of September, 1816, and addressed to her, in relation to the bringing of those then pending suits to a close, is in these words : " Dear Madam — " Understanding that an amicable adjustment of your suits in chancery with the legal representatives of the late Judge Chase, was likely to take place, conformably to your request, we have HANNAH K. CHASE'S CASE. 207 turned our attention to the points in controversy involved in those suits, and particularly to the property known and distinguished by the name of the Fountain Inn, in which we are of opinion, you have no title of dower during Bryden's lease, having relinquished your dower therein during said lease, which will expire in 1821. Whether, upon the termination of said lease, you will be entitled to dower, is a question of some difficulty^ and perhaps can only be solved by some further proof in point of fact, relative to the nature and effect of the contract between the late Judge Chase and Bryden. If it depended entirely upon the title papers, we should be of opinion, that dower in that property would be clearly demandable. But papers have been exhibited with the answer of Mr. T. Chase, which create a difficulty in determining whether the original contract with Bryden was in the nature of a mortgage, or an absolute purchase. If the first, dower is not claimable ; if the latter, you are entitled to it as a matter of course. It was certainly not designed to have the effect of a mortgage by the late Judge Chase. We do not think, that the difficulty should prevent a settlement as to the residue of the property, in which dower is asserted, in relation to which, we have reason to believe, no opposition wiU be made to your claims. If before the lapse of five years, the question as to Bryden'' s property should not be settled, the question between you wiU be narrovred down to a single point, in the adjustment of which, we suppose, no great difficulty can take place. We are, &.c. JoAn Stephen, A. C. Magruder.^'' The agreement, upon which the suits spoken of in the afore- going letter, were brought to a close, was marked in this suit as exhibit S. M., and is expressed in these words : ^'■Hannah K. Chase and John P. Paca v. Samuel Chase and others ; Hannah K. Chase v. Samuel Chase and others ; and The same v. The same : " It is agreed, that a decree shall pass in the first of the above cases, for the payment of the sums of money, with interest thereon, secured to be paid to the complainant Hannah K. Chase, by the two bonds in. the proceedings mentioned and exhibited, executed by the Honourable Samuel Chase, deceased ; one to John P. Paca, of Queen Ann's county, as trustee of the said Hannah K. Chase, dated on the 14th day of February, A. D. 1809, for the payment of two thousand five hundred dollars ; the other to the said John P. Paca, as trustee aforesaid, dated on the tenth day of July, A. D. 1810, for the payment of one thousand four hundred and 208 HANNAH K. CHASE'S CASE. thirty-seven dollars, together with costs of suit. It is also further agreed, that in the two last of the above causes, decrees shall pass, giving the complainant dower in the following tracts, pieces or parcels of land, to wit, one lot on Jones' Falls ; one lot called the Garden, and one other lot adjoining the same, (the said three lots or parcels of land being the same now advertised to be sold on the 7th of Auo-ust next, by the trustees for the sale of the real estate of Samuel Chase, deceased;) also in a lot of ground situated on the west side of Jones' Falls, conveyed by the said Samuel Chase, deceased, to William Camp, sometime in the month of April, A. D. 1811 ; also in two lots between Water and Pratt streets, in the city of Baltimore, conveyed by the said Samuel Chase, deceased, to a certain John Gross, and by the said Gross afterwards conveyed to Jlndrew Myer ; also in a certain lot or parcel of ground, advertised by the said trustees as aforesaid, situate on Whetstone Point : provided it shall appear to the satisfaction of the Chancellor, by the exhibition of title papers, or otherwise as he may order, that the said Hannah K. Chase hath a right to dower in the same. And it is further agreed, that a compensation in money shall be paid to the complainant by the defendants, for and in lieu of her dower in the property above mentioned ; and that such compen- sation shall be fixed by the Chancellor, upon evidence offered to him of the value of the said respective pieces or parcels of land by the actual sales, where sales are to be made by the trustees as aforesaid ; and for want of sales by depositions, showing such value, to be taken before some justice of the peace for Baltimore county, residing in the city of Baltimore, by either party, upon giving three days' notice. And it is further agreed, that the said bills be dis- missed as to all the property in the proceedings mentioned, not specified and included in this agreement, and that the complainant pay the costs. It is agreed, that all sums for which Mrs. Chase may be indebted to the estate of Samuel Chase, deceased, for furniture, &c. obtained from the administrator, or at the appraised value, shall be deducted from her claim ; the amount whereof shall be ascertained by Luther Martin and Jonathan Meredith.'''' This agreement w^as signed by H. K. Chase, T. Chase, S. Chase, and their solicitors. Several deeds were exhibited, proved and relied on by the par- ties, to show the nature of the title of the plaintiff's late husband to the property, in which she now claimed dower. The deed dated on the 4th of February, 1806, and on the same day ac- knowledged and delivered from James Clarke to Samuel Chase, the HANNAH K. CHASE'S CASE. 209 late husband of the plaintiff, recites and sets out his title in the following words : " Whereas Harry Dorsey Goughj on the fifth day of April, in the year seventeen hundred and eighty-six, agreed with Daniel Grant of Baltimore town, now the said city, to sell and give his bond to convey to him, his heirs and assigns, clear of all incum- brances, all that lot or parcel of ground lying in Baltimore town and contained within the following courses and distances, to wit : begining, &c. &c. with its appurtenances, for the consideration of three thousand seven hundred and eighty pounds in English guineas at thirty-five shillings each, and weighing five pennyweights and six grains, payable on the fifth day of April seventeen hundred and ninety-three, with annual interest thereon until paid. And whereas the said Harry Dorsey Gough, afterwards, to wit, on the twenty-ninth day of September, in the year seventeen hundred and ninety-five, agreed with the said Daniel Grant, to sell and give his bond to convey to him, his heirs and assigns, clear of all incum- brances, all that other lot or parcel of ground lying in Baltimore town aforesaid, now the said city, and situate immediately below the buildings of the said Daniel Grant, 'to wit : beginning, &c. &c., for the consideration of five hundred and twenty-one pounds in English guineas, at tliirty-five shillings each, and weighing five pennyweights and six grains, payable in one year, with annual interest thereon until paid. And whereas the said Daniel Grant, afterwards, to wit, on the thirtieth day of September, in the year seventeen hundred and ninety-five, sold the said two lots or parcels of ground wnth the appurtenances unto James Bryden of the said city of Baltimore, for the consideration of the sum of three thou- sand four hundred and sixty-four pounds, six shillings and five pence, current money, to be paid by him to the said Harry Dorsey Gough, and of the sum of five thousand and thirty-five pounds, thirteen shillings and seven pence of like money, to be paid by him the said James Bryden, unto him the said Daniel Grant. And whereas the said James Clarice, with John Smith, became security for the said James Bryden, for the payment of the said two seve- ral sums of money ; and the said Daniel Grant for their indemni- fication, on the said day and year last mentioned, assigned to them, the said James Clarke and John Smith, tdl his right, title and inter- est of, in and to the said two bonds of the said Harry Dorsey Gough, for the conveyance of the said two lots or parcels of ground in the said two bonds mentioned. And whereas the said Javnes 210 HANNAH K. CHASE'S CASE. Bryden afterwards paid unto the said Daniel Grant, the said money with the interest due thereon : and whereas the said James Clarke, at the request of the same James Bryden, hath paid unto the said Harry Dorsey Gough, the sum of seven thousand two hundred and sixteen dollars and forty-two cents, money of the United States, being the balance due unto him for principal and interest ; and thereupon the said James Bryden delivered up unto the said Harry Dorsey Goug/i, his said two bonds for conveyance as aforesaid, and the said Harry Dorsey Gough at the request of the said James Bryden, did on the third day of February, in the year one thousand eight hundred and six, convey and make over the said two several lots or parcels of ground with the appurtenances, unto the said James Clarke, his heirs and assigns, for ever, as by his deed to the said James Clarke, duly executed and acknowledged, reference being thereunto had, will fully appear. And whereas the said Samuel Chase on the day of the date of this deed, at the request of the said James Bryden, hath paid to the said James Clarke the sum of seven thousand two hundred and sixteen dollars and forty- two cents, being the sum paid by him for the said James Bryden to the said Harry Dorsey Gough as.abovementioned. And whereas the said Samuel Chase, on the date of this deed, hath also paid to the said James Bryden the sum of ten thousand two hundred and eighty-three dollars and fifty-eight cents, the receipt whereof is testified by his being one of the subscribing witnesses to the exe- cution of this deed. Now this indenture witnesseth, that the said James Clarke,''^ &c. conveying to Samuel Chase an absolute estate in fee simple. The lease from the late Samuel Chase to James Bryden, bears date on the 26th day of February, 1806, of this property for the term of fifteen years, reserving an annual rent of two thousand dol- lars, is in the usual form, and the acknowledgment of it by Chase and his wife, the present plaintiff, is in the form required by law. The recital and condition of the bond in the penalty of forty thou- sand dollars, of the same date, from Samuel Chase, the plaintiff's late husband, to James Bryden, is expressed in these words : " Whereas it has been agreed, on the day and year abovemen- tioned, by and between the said Samuel Chase and the said James Bryden as follows, to wit: that the said Samuel Chase, his heirs and assigns, at and upon the expiration of fifteen years from the day of the date hereof, in the year of our Lord one thousand eight hundred and six, and not before, and at any time within one HANNAH K. CHASE'S CASE. 221 year from the expiration of the said fifteen years, and not after- wards, and upon the payment to him, the said Samuel Chase, his heirs or assigns, by the said James Bryden, his heirs, executors, administrators or assigns, of the sum of seventeen thousand five hundred dollars, in specie money of the United States, or gold coins as established by act of Congress, passed on the ninth day of Feb- ruary one thousand seven hundred and ninety-three, and not in paper of any kind ; although the said James Bryden or his assigns should by law be authorized to pay paper money in lieu of specie ; and in case of the said James Bryden or his assigns not paying the said sum of seventeen thousand five hundred dollars in manner as aforesaid at the expiration of the said fifteen years, but within the one year thereafter abovementioned, then upon the payment of the said principal sum, with legal interest thereon until payment within the said year, in manner and form aforesaid, shall and will well and truly convey by deed duly acknowledged and recorded according to law, unto the said Jam,es Bryden and his heirs, all that lot or parcel of ground lying in Baltimore town, now the said city of Baltimore, and contained within the following courses and dis- tances, to wit : beginning for the same, &c. &c. together with all buildings and improvements erected upon the said two lots or par- cels of ground, and which are particularly described in a deed duly acknowledged and recorded, and bearing date on the fourth day of February last, for the conveyance of the said two lots or parcels of ground hy James Clarke to the said Samuel Chase, and in a deed bearing date on the day of the date hereof, for the lease of the said two lots or parcels of ground by the said Samuel Chase to the said James Bryden, for the term of fifteen years from the date of the said lease, and free from all incumbrances and right and title of dower whatsoever. Now the condition of the said obligation is such, that if the said Samuel Chase, his heirs or assigns, shall well and faithfully observe, perform and keep the said agreement on his part, according to the true intent and meaning thereof, then the said obligation shall be void, otherwise in full force and virtue in law." All the other material circumstances of the case are sufficiently noticed by the Chancellor in delivering his opinion after the final hearing. On the first of March, 1826, the plaintiff filed her petition, in which she stated, that the defendant, Samuel Chase, who had the control and management of the property in which she claimed 212 HANNAH K. CHASE'S CASE. dower, had, since the institution of this suit, taken the benefit of the insolvent law ; and that if he were permitted to continue either directly or indirectly to receive the rents and profits, they would be wholly lost. Upon which she prayed that a receiver might be appointed. Upon this petition an order was passed, allowing the defendants to show cause on the 22d of the same month. After which the matter was brought up for a final decision upon the cir- cumstances as stated by the court. 2Q)th Jlpril, 1S2G. — Bland, Chancellor. — The petition for the appointment of a receiver standing ready for hearing, the parties- were heard by counsel, and the proceedings read and considered. The defendants have not thought proper to put in a formal answer in writing to the plaintiff's petition, but have been content with showing cause verbally. If a petition of this kind, bringing before the court a matter which could not have been made the sub- ject of a mere motion, because of the necessity of putting upon the record the new facts therein set forth, and apprising the party of all the circumstances on which the application is made, so as to enable him to controvert them, if he can ; be not regularly and properly denied by a written answer on oath, the whole, or so much of it as is not denied must, by analogy to the course of this court in similar cases, be taken to be true. (a) I have so recently had occasion to consider the general nature and utility of the power of this court to appoint a receiver,(6) that it will be unnecessary upon this application to notice what has been said in argument as to the novelty, or the unsettled nature of the authority of this- court to make such an appointment, or as to the very oppressive purposes to which, it is said, it may be applied. It will be sufficient here again to observe, that I consider the matter as having been long since fully settled, and the power as one of as great utility as any which belongs to the court. It has been mainly urged, that the court will not appoint a receiver against the legal title, but upon very special and strong ground. This is admitted. But the matter in controversy between these parties is a legal title, or it is nothing. This is a bill for dower, a mere legal deinand ; and the relief the plaintiff seeks is to have her particular estate set apart out of the general estate of the defendants, and to have the rents and profits thereof accounted for. (a) Shipbrookc v. Hinchingbrook, 13 Yes. 393 ; 2 Harr. Pra. Chan. 40, 129, 133. {b) Williamson v. Wilson, 24th April, 1S26, post 000. HANNAH K. CHASE'S CASE. 213 To this it is objected, that a receiver cannot be appointed, because the claim of the plaintiff does not extend to the whole, but only to one-third of the property in controversy. The appointment of a receiver does not involve the deter- mination of any right ; or affect the title of either party in any manner whatever : but still an application for such an appointment can only be made by those who have an acknowledged interest ; or where there is strong reason to believe, that the party asking for a receiver will recover. I am of opinion, that the plaintiff has a sufficient presumption of title, to rest this application upon.(c) But unless she has also shown, that the rents and profits are in imminent danger, a receiver cannot be appointed. A manifest abuse of a trust by an habitual and prospective course of dealing, bringing the property into danger, has been held to afford sufficient ground for the appointment of a receiver : but in no case has there been the least hesitation in making such an appointment, where the party in the actual receipt of the rents and profits was shown to be insolvent. Here the property is in the hands and under the control of the defendant Samuel Chase : and it is shown by the exhibits attached to the petition, that he has, pending this suit, actually obtained the benefit of the insolvent laws. He is, therefore, legally and in fact insolvent. Hence, it clearly appears that the rents and profits of the property in question are exposed to immi- nent danger, or indeed to inevitable loss. A receiver is appointed for the benefit of the interested party who makes the application, and for any others who may choose to avail themselves of it, and who may have an interest in the pro- perty proposed to be put into the hands of a receiver. The immediate moving cause of the appointment is the preservation of the subject of litigation, or the rents and profits of it, from waste, loss or destruction ; so that there may be some harvest, some fruits to gather after the labours of the controversy are over. The ulte- rior objects of the appointment are those contemplated by the suit itself; they are the several kinds of relief, which may be asked for and obtained by the complainant's biO. Where the plaintiff claims the whole, as a purchaser or by a superior title, if he suc- ceeds, it eventuates that the appointment was entirely and exclu- sively for his benefit, (d) (c) Stitwell V. WiUiams, 6 Mad. 49 ; Clark r. Dew, 1 Rus. & Myl. 103; Davis ». Marlborough, 2 Swan. 146.— (rf) Lloyd v. Passingham, 16 Ves. 59 ; Davis v. Marl- borough, 2 Swan. 125. 214 HANNAH K. CHASE'S CASE. But SO far from such iDeing the only kind of cases in which a receiver has been appointed, they are in fact of the most rare occurrence. Where the plaintiff was a mortgagee, or a creditor suing in his own right alone, or for himself and other creditors, whose claims might or might not cover the whole amount ;(e) or where the object of the bill was to obtain a fair division of the property and to have debts paid;(/) or where the portions to which the contending parties would be respectively entitled was uncertain until a division should be made by the court ; or where one tenant in common took the whole rents and profits to the exclusion of his co-tenant ; if the merits of the case required it, a receiver has been appointed and directed to take charge of the whole estate. And at the instance of a plaintiff who claimed as a purchaser, such an appointment has been made, even before answer, although it was urged in argument, that a married woman, who claimed a life estate under a post nuptial settlement, would be stripped by it of " her only means of defence and sub- sistence, "(o-) It does not appear from any of the cases, that such an objection as this now relied upon, has ever before been made by any one in relation to the appointment of a receiver; and, consequently, it cannot be regarded as of any weight whatever. I shall, therefore, put a receiver upon this estate. But as no per- son has been nominated by the parties for that ofhce, I must let the selection of a suitable person lay over until I hear from them. Ordered, that a fit and proper person be appointed as a receiver, as prayed by the complainant's petition, with full power and autho- rity to enter upon and take possession of the messuage, and tenement in the bill of complaint mentioned ; and to take care of, rent, or otherwise dispose of the same pending this suit, in such manner as he may deem most advantageous to the parties inter- ested therein, subject to the further order of this court. And also wnth full power and authority to demand, -sue for and recover any rent now due or which may hereafter become due for the same. And for the faithful performance of the trust reposed in such per- son to be appointed to act under this order, or which may be reposed in him by any future order of this court in the premises, (e) Thomas v. Dawkins, 3 Bro. C. C. 508 ; Bowersbank v. Collasseau, 3 Ves. 165; Wilkins v. Williams, 3 Ves. 588 ; Hughes v. Williams, 6 Ves. 459 ; Bryan v. Cor- mick, 1 Cox. 422; DalmeriJ.Dashwood, 2 Cox.37S.— (/) Skipv. Hanvood, 3 Atk. 564. (g) Metcalfe v. Pulvertoft, 1 Ves. St Bea. 180. HANNAH K. CHASE'S CASE. 215 he shall give bond to the State of Maryland in the penalty of ten thousand dollars, with surety or sureties to be approved by the Chancellor. The compensation of such receiver shall be here- after determined on a consideration of his trouble, skill, and diligence in the premises. And it is further ordered, that on the fifth day of May next, a proper and suitable person wiU be appointed a receiver under this order ; provided, that on or before that day the parties may nominate and recommend for the appointment to the Chancellor, such person or persons as they or either of them may think proper. Two of the defendants, Matilda Ridgely and Ann Chase, on the 4th of May 1826, filed their petition, objecting to the appointment of a receiver, which petition was then submitted to the Chan- cellor : but a decision upon it was postponed until a nomina- tion of a receiver should be made. After which, on the 10th IVIay 1826, a nomination was made, and the case was again sub- mitted to the Chancellor. 9tk June, 1826. — Blais'd, Chancellor. — Ordered, that the peti- tion of Matilda Ridgely and Ann Chase, be dismissed with costs ; and that Peter H. Cruse, of the city of Baltimore, be and he is hereby appointed a receiver under and according to the order of the 26th of April last. After a receiver had been thus appointed and he had taken the property under his care, the case was prepared and brought on for a final hearing. 28^A April, 1827. — Bland, Chancellor. — This case standing ready for hearing, the solicitors of both parties were fully heard, and the proceedings read and considered. It appears from the bill as amended, and the plaintiflf's exhibits, that the late Samuel Chase, after and during his marriage with the plaintiff, became seized in fee simple of a certain real estate, situated within the city of Baltimore, called the Fountain Inn ; which property, on the 26th day of February, 1806, he leased to James Bryden for the term of fifteen years, reserving an annual rent of 2000 dollars. The plaintiff, on a pri^-y examination, ac- knowledged the validity of this lease, and made a relinquishment of her dower in the usual form. Samuel Chase, the husband of the plaintiff, died on the 19th April, 1811. The lease to Bryden expired on the 26th February, 1821. Those who claimed under 216 HANNAH K. CHASE'S CASE. the late Samuel Cliase leased this property to Basil Williamson, who had the possession thereof when this bill was filed. The jjlaintiff claims one-third of this property as her dower ; and she also claims a remuneration for the rents and profits of her third part from the death of her husband; and thereupon prays, that dower may be assigned to her ; that the property may be sold for the payment of the rents and profits due to her ; or that the future accruing rents to which the defendants are entitled, may be sequestered or placed in the hands of a receiver to be paid over to her until she is satisfied ; and generally, that she may have such relief as is suited to the nature of her case. The defendants Barney and wife, and Cole and wife, submit the case to the justice of the court. The defendant Williamson declares, that he is totally ignorant of the plaintiff's pretensions ; and, therefore, leaves her to sustain them ; but admits, that he holds as tenant' under some of the other defendants. The defendant Richard M. Chase disclaims all interest in the matter in contro- versy. And Hester-Ann, Matilda, and Frances T. Chase, the three infant children of the late Thomas Chase, who have been made defendants as heirs of their father, who was a defendant and died after he had answered, state their ignorance of the whole affair, and pray to have their interests protected. But, their father does not seem to have had any interest in this property, which could have been affected by the plaintiff's claim ; or if he had, it will be fully considered and disposed of in passing upon the defence which he jointly made, before his death, with three others of his co-defendants. Consequently, all these defendants may be safely passed by without any further notice, and the case may be at once disencumbered of every thing in relation to them. The defendants Samuel Chase, Matilda Ridgely, and Ann Chase, have put in a joint and several plea and answer. They alone claim the property, called the Fountain Inn. They contest the plaintiff's claim altogether and in every shape. The whole opposition and the entire brunt of the controversy rest with them. They have couched their defence in the form of a plea and answer. The matter of their plea is extended over a wide surface in the foreground ; and sets out all that mass of particulars of which their defence is composed. The matter of this plea amounts to this, that the plaintiff filed a bill against them on the 5th of July 1813, and another on the 14th of February 1814, in both of which HANNAH E. CHASE'S CASE. 217 she claimed dower in this same property ; that the matter of those suits was finally settled, and thus they were dismissed ; and there- fore, they plead those suits, the agreement, and the dismissal of them in bar of the claim nov>^ made by the plaintiff. But these defendants, not content with resting their case upon the matter thus set out by way of plea, have gone on to repeat the whole of the same matter, and to rely upon it by way of answer. The bill always calls for an answer from the defendant as to all the matters of fact therein set forth. But one of the peculiar and proper offices of a plea is to present such a defence as shews, that the defendant cannot be compelled to make, or may well be excused from making such an answer as the bill calls for ; and therefore, upon the ground of inconsistency, the defendant cannot be per- mitted, by way of plea, to aver, that he ought not to be compelled to answer, as called upon in relation to any particular matter, and at the same time to put his defence, as to the same matter, into the form of such an answer as the bill calls for. Hence if a defendant answers to any thing as to which he has pleaded, he thereby overrules his plea ; for his plea is only why he should not answer, so that if he answers he waives his plea to the same mat- ter. The same principle is equally applicable to demurring and answering, and to demurring and pleading to the same part. (A) The plea of these defendants must, therefore, be totally rejected; as being overruled by the subsequent answer, covering exactly the same matter ; and I have the less hesitation in thus striking it out, because it is evident, from the answer, that nothing at all neces- sary to the sound merits of the defence will be lost. But in the answer itself, of these defendants, there are matters which may be safely banished from it without in the least enfee- bling the force of the defence. That which is related of the matter of the bill, filed on the 17th of February, 1813, by this plaintiff and John P. Paca ; what is said about the letter, and the conveyances from John E. Howard to the late Samuel Chase ; what is related of the late Samuel Chase''s intentions to make advancements of property to his children ; and the allegations respecting the rough draft of his will, with some other particulars of less note, cannot certainly be at all material to the defence. I shall, therefore, lay them aside, as in no way necessary to the present matter in con- troversy. (A) Gilb. For. Rom. 58 ; Mitf. Tr. 320 ; Beams' PI. Equ. 39. 28 218 HANNAH K. CHASE'S CASE. The defence rests on the following grounds -.—first, that the plaintiff has heretofore sued for dower in this property, and by the final termination of those suits her claim, if she ever had any, has been fully released or barred ; secondly , that if she has not been tlius solemnly barred, yet she is not in law dowable of this pro- perty, because her late husband never had a fee simple estate therein, but held only a mere equitable interest, as a mortgagee to secure the payment of money lent by him ; thirdly, supposing these objections removed, that still her claim can be carried no further back than to the 26th of February, 1821, when the lease to Bryden and her relinquishment of dower up to that period expired ; and lastly, supposing her claim to be valid, that yet the two-thirds of this property, belonging to these defendants, can neither be sold nor sequestered as a means of satisfying the amount of the rents and profits, v/hich may be decreed to her. These are the gi-eat points of defence. The nature and validity of each of which must now be carefully considered and determined. With regard to the first point. The defendants Samuel, Matilda, and Ann claim this property, called the Fountain Inn, and allege, that the plaintiff has released, or is barred of dower therein, by the agreement, and the manner in w^hich two suits, heretofore insti- tuted in this court, to recover dower in the same property, have been finally adjusted and determined. If this allegation be well founded, there is an end of the case ; since it cannot be necessary to inquire, wdiether the plaintiff had been previously thereto dowable of this property ; and much less to determine the extent to which she might have been entitled to recover. This plaintiff, with John P. Paca, her trustee, filed a bill on the 17th of February, 1813, in this court, against the representatives of the late Samuel Chase, to recover a certain amount of money alleged to be due to her. After which she filed one bill on the 5th of July, 1813, and another on the 14th of February, 1814, in %vhich she presented herself as the widow of the late Samuel Chase, claiming dower in every parcel (the Fountain Inn, among the rest) of the real estate of which her late husband had been seized during their marriage, against his heirs, and all others, whom she had found in possession of any part thereof. To these suits the defendants appeared and answered ; when the parties came to an agreement, designated in this case as the exhibit S. M., by which the matters in dispute in all three of them were to be adjusted or withdrawn. This written agreement is without date ; HANNAH K. CHASE'S CASE. 219 but the letter of Stephen and Magruder, dated on the 28th of Sep- tember, 1816, speaks of propositions for compromising these suits as then depending. And the Chancellor remarks, at the foot of his decree in the first cause, dated the 17rh of July 1817, that " it is passed as being considered within the meaning of the agreement signed by the parties." Consequently, this agreement S. M. must have been executed some time between those dates. By the agreement S. M., a decree was to be passed in the first case in favour of the plaintiff for the amount demanded, with costs ; ■which was done accordingly on the 17th of July, 1817. As to the second and third, or the dower cases, as they may be called, the instrument of writing declares, that " It is also further agreed, that in the two last of the above causes, decrees shall pass giving the complainant dower in the following tracts, pieces or parcels of land, to wit," — going on to specify certain property, without the least allusion to the Fountain Inn ; and then proceeds in these words : " Provided, it shall appear to the satisfaction of the Chancellor, by t-he exhibition of title papers or otherwise, as he may order, that the said Hannah K. Chase hath a right to dower in the same. And it is further agreed, that a compensation in money shall be paid to the complainant by the defendants, for and in lieu of her dower in the property abovementioned, and that such compensation shall be fixed by the Chancellor, upon evidence offered to him of the value of the said respective pieces or parcels of land, by the actual sales, where sales are to be made by the trustees as aforesaid, and for want of sales, by depositions shewing such value; to be taken before some justice of the peace for Baltimore county, residing in the city of Baltimore, by either party, upon giving three days' notice. And it is further agreed, that the said bills be dismissed as to all the property in the proceedings mentioned, not specified and included in this agreement. And that the complainant pay the costs." The motives, which induced the parties to enter into this agree- ment, are not expressed in the instrument itself; nor can they be clearly inferred from any thing that is said in it. The first suit, instituted by Hannah K. Chase and John P. Paca, seems to have no sort of connexion with the subsequent dower cases. According to the agreement, the plaintiffs, in that case, were to have a decree for all they asked ; and then it proceeds to speak of the dower cases, wnthout making any allusion whatever to that case. There- fore, while confining our contemplation to the agreement alone. 220 HANNAH K. CHASE'S CASE. the first case, and every thing relative to it, may be wholly laid aside. Looking at this agreement, in relation to the dower cases alone, it seems to be wholly gratuitous, without any valuable consideration whatever moving from either party. The plaintiff was to recover nothing to which she could not produce a clear subsisting title. She was to be endowed of certain specified ]^ropertj^ provided she satisfied the court, that she was entitled to dow^r therein. It is neither said nor insinuated, that she w^as to be endowed of any one parcel of land, in consideration of her relinquishing dower in any other parcel. In short, she was to be endowed of no land in which she was not legally entitled to dowser ; and to no greater amount than its exact value, to be determined by the court. The plaintiff agreed to dismiss her bills claiming dower, as to all the property not included in the agreement, and to pay all costs. This concluding branch of the agreement is perfectly in character with every other part of it. Like the rest, it is merely gratuitous ; and, consequently, according to every principle of equity, it cannot be construed into a release of any right, beyond the express and irrisistible sense of the terms used. The words of the agreement are, that " the bills be dismissed.''^ Suppose this agreement had been followed out by a formal decree, then the court must have dealt with the matter in the manner in which it was submitted ; that is, it must have determined upon the rights of the parties as to all the jiroperty specified in the agree- ment ; and as to the residue, it could only have ordered, in pursu- ance of the agreement, " that the bills he dismissed toith costs.^\i) To make a decree a good and available bar, in any subsequent suit, it is not sufficient merely to shew, that the bill was dismissed ; but the party must go further, and shew, that the matter of the bill was res judicata ; that there was an absolute determination by the court, that the party had no title. (J) But the Chancellor could not, in those cases, have given any determination in relation to the plain- tifTs title to dower in the Fountain Inn ; because he was deprived of the means of doing so by the agreement, which simply directed, that those suits as to that property should be dismissed with costs. No decree which the Chancellor could have pronounced in pursu- ance of that agreement, could have given to it any additional extent (i) Rowe V. "Wood, 1 Jac. &. WaUc. 345.— (J) Erandlyn v. Ord, 1 Atk. 571 ; Mitf. Tr. 238; 2 Mad. Cha. 312; Beam. PI. Eq. 218. HANNAH K. CHASE'S CASE. 221 or force as a bar against the present plaintiff. There was, however, no formal decree ever passed in those cases; -they were closed on the 19lh of July, 1819, by the short docket entry " agreed," evidently in reference to this written agreement. The question, therefore, recurs upon the agreement alone. It is stipulated, that the bills be dismissed as to the property not included in the asfreement. It is a contract to abandon those suits ; but it is not a relinquishment of the right claimed by them. The two things are substantially different ; and that difference, it appears from the whole phraseology of the agreement, was in the then contemplation of the parties. Much is directed to be done, to facilitate the speedy progress of the suit ; the usual formal and tedious mode of collecting testimony, necessary to a correct decision upon the rights of the parties, is dispensed with ; and the suits are to be brought to a close in a summary way ; but no right is ceded, no title is relinquished by either party. On the contrary, we are told, that the plaintiff is to recover; provided, and only provided the Chancellor shall so determine. The defendants concede to the plaintiff nothing, absolutely nothing. They, there- fore, can have no equitable ground to claim from her an abandon- ment of her rights. The agreement, that the bills be dismissed must be considered as referring to a mere voluntaiy dismissal by the plaintiff herself, which would leave her rights and interests untouched and unimpaired in all respects whatever. This agreement is not so explicit as it might, and perhaps ought to have been ; but, after mature consideration, I find enough in it to bring my mind satisfactorily to the conclusion, that it cannot be deemed a relinquishment of the plaintiff's right of- dower in the Fountain Inn. The solicitors on both sides have contended, that it is entirely unambiguous ; and yet they have had recourse to the proofs and circumstances to aid the interpretation respectively con- tended for. A few remarks upon those circumstances and proofs seem therefore to be required. To the lease from the late husband of the plaintiff to Bryden, of the Fountain Inn, she made a formal relinquishment of dower. This lease did not expire until the 26th of February, 1821, some years after the commencement of the two former dower suits. This was an embarrassing circumstnnce. These defendants admit it to have been so considered at that time ; for they say, in their answer, that, as they have been advised, the plaintiff's acknow- ledgment of the lease to Bryden did not operate as a bar of her 222 HANNAH K. CHASE'S CASE. dower ; but merely as a suspension of execution during the term ; and that the right to dower might have been determined in those suits. But, these defendants, not satisfied with teUing us of the advice they had obtained, as to this apparent difficulty, have drawn forth that which was given to the plaintiff upon the same subject. The policy of the law does not permit a solicitor to divulge the secrets of his client. Such confidential communications are not to be revealed at any period of time, either before or after the suit has been brought to an end, or in any other suit ; for, as to all such matters his mouth is shut for evev.{k) A solicitor may refuse to act further for his client, but he cannot go over to the opposite party. (/) But this obligation of secrecy is the privilege of the client, not the incompetency of the solicitor. In this case, the defendants have called on the plaintiffs solicitors to tell of their advice and opinions to their client ; and the plaintiff has not objected. She has waived her privilege. Hence her solicitors are legal and competent wit- nesses. It appears by their depositions, that their recollection of facts and occurrences which happened at the time of the agreement, about the two former dower suits, is very obscure and general. But there is no ambiguity in their letter of the 28th of September, 1816. Their advice respecting this estate called the Fountain Inn, is remarkable ; it is expressed in these words : — " We are of opinion you have no title of dower during Bryden's lease ; having relin- quished your dower therein during said lease, which will expire in 1821. Whether upon the termination of said lease, you will be entitled to dower, is a question of some difficulty ; and, perhaps, can only be solved by some further proof in point of fact relative to the nature and effect of the contract between the late Judge Chase and Bryden.^'' And, after some further observations as to this contract, they say : — " We do not think, that this difficulty should prevent a settlement as to the residue of the property in which dower is asserted ; in relation to which, we have reason to believe, no opposition will be made to your claim. If, before the lapse of five years, the question, as to Brydeii's property, should not be settled, the question between you will be narrowed down to a single point, in the adjustment of which we suppose no great (/c) Vaillant v. Dodemead, 2 Atk. 524 ; Sandford v. Remington, 2 Ves. jun. 1S9 ; Richards v. Jackson, IS Ves. 472 ; Parkhurst v. Lowten, 3 Mad. 121 ; Arnot v. Biscoe, 1 Ves. 95 ; Wilson v. Rastall, 4 T. R. 753 ; Bui. N. P. 284.— (/) Cholmon- deley v. Clinton, 19 Ves. 272. HANNAH K. CHASE'S CASE. 223 difficulty can take place." After the receipt of this advice the plaintiff signed the agreement S. M. These circumstances and this letter fortify the construction I have put upon tlie agreement S. J\I. The plaintifPs agreeing to dismiss her bills, as to the Fountain Inn, and also to submit to the payment of costs, is satisfactorily accounted for. It thus clearly appears, that so far from relinquishing any right, she then merely withdrew from before the tribunal, with a fixed resolution to return to the contest at a more convenient season ; unencumbered with matters which might be then disposed of and finally adjusted. It is, therefore, my opinion, that neither the institution and termination of those suits, nor the agreement S. M., can in any manner whatever be considered as a bar, or release of the right now asserted by this plaintiff. The next question is, whether the late husband of the plaintiff had an estate in the Fountain Inn during^ their marriage, of which she is dowable. It is admitted on all hands, that the legal estate in fee simple of this property was originally in Harry D. Gough; all who are any way concerned in this controversy deduce their interests from him ; and, consequently, the only question now is, whether James Clarke^ to whom Gough conveyed, and the late Samuel Chase, to whom Clarke conveyed, held as mortgagees from Bryden, or any one else ; or whether Clarke, and from him Chase, obtained an absolute indefeasible legal estate in fee simple, or only an equitable interest. It appears, by the recitals in the conveyance, dated the 4th of Februaiy, 1806, from James Clarke to the late Samuel Chase, that Harry D. Gough, who was seized of an estate in fee simple in the land covered by the Fountain Inn, had agreed to sell it to Daniel Grant, and gave his bond with a condition to convey it to him when he paid the purchase money. Grant sold his interest, and assigned this bond to James Bryden ; and Jame,) The mode of conveyance by fine is couched in the form of a suit upon an agreement ; as to which the wufe is examined by the judges of the court apart from her husband, so that it may appear to them, that she perfectly understands what she is about to do, and freely gives her consent to it ; and if they doubt of her age, they may examine her upon oath, before they pronounce (r) Co. Litt. 343; Lampet's case, 10 Co. 49.— (s) Pow. Mort. 677, note D. (0 Ohvay v. Hudson, 2 Vern. 584 ; Moore v. Moore, 2 Ves. 601 ; Everall v. Smalley. 1 Wils. 26.— (7t) 18 Ed. 1, Stat. 4; Kilt. Rep. 146.— (t») Richards v. Chambers, 10 Ves. 587. HANNAH K. CHASE'S CASE. 229 their judgment.(w) Upon which a peculiar efficacy is ascribed to the agreement, so that it is not open to objections which would be fatal to an agreement of a married woman, authenticated in any other way : for there is no other form in which a court of common law can, with the consent of a feinx^ covert, give validity to her agreement concerning her estate ; and there are few cases in which even a court of equity can, with her consent, enable her to dispose of her property, real or personal. (x) This solemn and embarrassing mode, by which alone married women are enabled to dispose of their rights and interests in real estate may have been, and may yet be well suited to the circumstances and state of society in England ; but it is obviously unsuited to the state of things in our country, and much more so formerly, when land titles were so frequently and informally transferred from one to another as to have been, for some time, among the most current instruments of traffic among the colonists ;(y) than now when real estates have become better settled and more permanently held. In Pennsylvania, and many of the other colonies, it had become usual for married women to dispose of their lands or to relinquish their right of dower by a common de^d, or instrument of writing executed and authenticated as if they had been sole; which con- veyances were afterwards confirmed, and the custom of makino* such deeds, with their consent, taken on a private examination, was adopted by legislative enactments, (c) In Virginia, where the mode of conveyance by fine was never in use, following, as it would seem, a local custom of Wales, or of London,(a) it had become usual for married women, in order to effect a valid con- veyance of their lands, or relinquishment of their dower, to make an acknowledgment of the deed in a private examination before the general or county court, (5) which mode of conveyance was afterwards confirmed and adopted by the colonial legislature. (c) In Maiyland, although it is said, that lands were sometimes con- veyed by fine passed in the provincial or county court, (. HENDERSON. indivisible contract, utterly incapable of being broken up into dis- tinct parts. The subject of it, taken in either alternative, may be divided. The land may be reconveyed in separate parcels, and the purchase money may be satisfied in many small payments ; but, yet the one original contract covers all, and can exist only as a whole. The parties themselves may alter^ relinquish, or receive satisfaction for the whole or any part of it, at their pleasure ; but, to the court, it is a sacred unalterable v.'hole, which must stand or fall together. A plaintiff cannot be permitted to put his case in the alternative, so as to evade any of those settled rules which have been estab- lished by the court for the protection of its suitors from unreasonable vexation ; as by giving to his bill such a disjunctive frame and alternative prayers, as, that it may be treated either as a bill of review, or as a bill of revivor and supplement, so as thereby to elude the protective operation of those ndes by which a party is restrained from filing a bill of review at his pleasure. (?i) And as a plaintiff must state a clear case of equitable jurisdiction, much less can he be permitted to call on the court to act upon a hypothetical bill praying relief, either at law or in equity ; since he must dis- tinctly determine for himself whether his case is at law or in equity. (o) But it is not irregular to bring a bill in which the case, taken in any way, being within the jurisdiction of a court of equity, is stated in the disjunctive or with two different aspects ; so that if the plaintiff fails to sustain by his proof the one alternative, he may, by authenticating the other, obtain the relief he seeks. Qj) Here, however, the alternative presented to the court is that of a conveyance in trust ; or an absolute sale, with an incident equitable lien ; so that, whether the plaintiffs sustain by their proof the one alternative or the other, they have, by their bill, presented a case which, without invading any rule, com.es entirely within the cogni- zance of a court of equity. But the originally contracting parties were both of them dead when this bill was filed. The plaintiffs are the legal representatives of Jnnies M. Lingan, deceased ; and the defendants legally repre- sent the late John Henderson. The rights, as well as the liabilities, under this contract, have thus passed into other hands and devolved (n) Perry r. Phelips, 17 Ves. 176.— (o) Edwards v. Edwards, Jac. Rep. 335. (p) Cresset v. Kettleby, 1 Vern. 219; Bennett v. Vade, 2 Atk. 325 ; Jones v. Jones, 3 Atk. 111. LINGAN V. HENDERSON. - 253 upon other persons. The plaintiffs derive their right to the thing in controversy from James M. Lingan ; they stand exactly in his place, and can all of them together claim nothing more than what might have been demanded by him. Any one of them may assign, or release his or her own undivided right, so far as it extends, with- out prejudice to the others ; which transfer would, however, only operate so as to substitute the assignee for the assignor ; and con- sequently this contract, as stated in the bill,, is as entire and as utterly indivisible, as these plaintiffs have succeeded to it, as it wag in the hands of James M. Lingan, the originally contracting party'. Then, on the other hand, the liability to which John Henderson was subject, by this contract, has devolved upon these defendants as his legal representatives. Considering it as a conveyance in trust, his administratrix is liable for the rents and profits, as for so much personalty, gathered by her intestate from the real estate which had been so conveyed : and his heirs are liable ; because that real estate itself has, by operation of law, been cast upon them. In the other alternative, considering this contract as a bar- gain and sale, Henderson'' s administratrix is liable, as the holder of his personal estate, for the purchase money as one of his debts, for the payment of which, that part of his estate is primarily liable ; and his heirs are liable, because the real estate itself, encumbered with an equitable lien for the payment of the purchase money, has passed into their hands ; and also because of any other real estate of the intestate which may have descended to them, in case his personal estate may be found insufficient to pay his debts. But, it must be recollected, that the liability of each, and of all of these defendants is only in respect, and to the extent of the assets which may have come to their hands from the deceased contractor, who they thus far and no farther represent. But to the amount, that may be necessary to give to the plaintiffs complete and entire satis- faction, all the estate of JoJm Henderson deceased in the hands of these defendants is liable, and no part of it can, by any act of any one, or all of them together, be disengaged from that liability with- out making to the plaintiffs a full and entire satisfaction. The court may, in some cases, like this, so marshal the bearing of the liability, provided it be attended with no delay or risk to the plain- tiffs, as to place its burthen equally upon every part, or upon that portion of the estate by which it ought first to be borne ; but as every part of the estate of the deceased is liable for the whole claim of the plaintiffs, no portion of it can be discharged until they have 254 LINGAN V. HENDERSON. Veen fully satisfied. Hence it is clear, that this contract as against these defendants is as absolutely indivisible and incapable of being broken up into separate parts by them, or in their favour by the court, as it was against John Henderson during his lifetime. It appears, that, of these five defendants, David English and Lydia his wife, alone have put in such an answer as the bill calls for ; that after they had done so, and the bill had been amended, the defendant Richard Henderson filed a plea of the statute of limi- tations, to which answer and plea the plaintiffs put in a general replication ; and that the order of publication has been published as required, so that the bill may now be taken pro confesso against the absent defendants Sarah Henderson and Jaiiet L. Henderson. In this situation the case has been brought before the court for a final decree upon the whole matter in controversy. The defence of Lydia English^ goes to the whole; because she admits, that such a contract as is stated in the bill was actually made, but avers, that it was satisfied ; in others words she con- fesses and avoids the whole charge ; and therefore, if her matter in avoidance be true, the plaintiffs can have no relief against her ; because she would thus shew, that the whole claim had been actually satisfied. The defendant David English is passive ; with- out expressly denying any thing, he admits nothing; and therefore, unless the plaintiffs establish their claim, as set fortli, they can have no relief against him to any extent whatever. The defendant Richard Henderson rests his defence upon a plea of the statute of limitations. This defence also goes to the whole. It admits, that although a contract may have been made as alleged, yet it has been barred by the lapse of the prescribed length of time ; and there- fore, if this plea be properly applicable to the case and true, the plaintiffs can have no relief against this defendant, Richard Hen- derson. But the defendants, Sarah Henderson and Janet L. Hen- derson, having failed to answer, the bill may be taken pro confesso against them, and any relief may be awarded to the plaintiffs which can, under their general prayer, be sanctioned by the nature of their case. Whence this important question necessarily arises ; whether the court, in any suit against a plurality of defendants, where any one of them makes, and sustains such a defence as goes to the whole, can pass a decree against any other of them, who Jias made no such defence, or as against whom the bill might otherwise be taken pro conjesso ? LINGAN V. HENDERSON. 255 Although the pleadings in this court are much more informajl and loose than in courts of common law, yet they must be sub- stantially sufficient in this as well as in all other courts ; for other- wise the tribunal would have no means of ascertaining svhat was the real nature of the matter in controversy, nor of applying to it the rules of law by which it was to be decided. It is not neces- sary, that a plaintiff or ai defendant should here, as in a court of common law, strictly adhere to any prescribed form of stating his cause of complaint, or ground of defence. (g') But it is in all cases as indispensably necessary here, as in a court of common law, that the plaintiff should set forth fully and substantially a cause of action or ground of complaint as then existing at the time of the institution of his suit ; with this addition here, that it is in some essential particular such a case as comes properly within -the cognizance of a court of equity ; for if, on the final hearing, the case should not appear to be one of that description, the plaintiff can have no relief, and the bill must be dismissed. (r) If it appears upon the face of the bill, that the case is not one of that descrip- tion, the defendant should demur ; yet if he fails to do so, the court can grant no relief, but must order the bill to be dismissed. (5) Although the case presented may be such an one as, if true, and the bill had set forth the whole truth and nothing but the truth, would entitle the plaintiff to relief, yet if the defendant shews, by way of plea or answer, that there are other facts making a neces- sary component part of it, which have not been set forth, and which give to it an entirely different complexion, the plaintiff can- not be relieved ; because it is thus shown, that he has no cause of action, nor any just grounds for asking relief in the case he speci- fies. So on the other hand, if the defendant shews, that some facts have been stated which in truth compose no part of the case, so as to give to it an equitable character which does not belong to it, the plaintiff can have no relief, because his case is not substantially that upon which he has asked it. Hence, as it is the cause of action, as substantially stated in the bill, upon which alone the court can grant relief; and as, if, upon its face, it appears to be one of which the court cannot take cogni- zance ; and as, if the facts, thus stated, be not substantially tbe whole truth, without any material suppression or addition, the (q) Kemp v. Pryor, 7 Ves. 245.— (r) Mitf. PI. 44, 1.54.— (s) Barker v. Dacie, 6 Ves. 686. The King of Spain v. Machado, 4 Russ. 22.5. 256 LINGAN V. HENDERSON. plaintiff cannot be relieved ; so likewise, if no such cause of action ever did exist ; if it did once exist, but is shewn to have been, since, and before the institution of the suit, wholly barred, satis- fied, or extinguished in any way whatever, the plaintiff cannot have any relief; because it appears, that when he instituted his suit he had no cause of action, no just ground of complaint what- ever as alleged. For it is a fundamental /principle in the adminis- tration of justice in whatever form, or by whatever tribunal it may be administered, that where there is no cause of complaint there can be no foundation for granting relief (i) But however self-evident this principle may appear to be, when contemplated in relation to a suit brought by one plaintiff against no more than one defendant for relief, upon a simple, entire, and indivisible cause of suit ; yet, it does not appear to have been so readily and distinctly perceived where the cause of action has been compounded of various items ;. or where the satisfaction for the cause of suit is asked for in damages, or to an indefinite amount to be ascertained by an estimate of the nature and extent of the injury ; and especially w^here that complexity has been increased by the relief being sought from a plurality of defendants. The cause of suit, at law as in equity, may be made up of a variety of parts joined together as one whole, or it may be an injury which can only be satisfied by some pecuniary equivalent ; or the cause of suit may be the right to a subject which is in itself divisible ; or it may be that the several defendants, although interested and connected as privies and parties, are yet liable only disjunctively, or in separate proportions. Thus w^here the next of kin of the deceased filed their bill to recover their respective distributive shares of the surplus of certain portions of his personal estate, alleging, that he had died intestate as to those portions of it, and on the hearing it being shewn, that he had died intestate only of his silver jilate, the plaintiffs had relief as to that, but as to the rest the bill was dismissed. The defence made and sustained going to a part only of the subject claimed, it appeared", that the plaintiffs had a valid cause of suit, and were therefore relieved. (») So, in general, if a man brings an action for two things, for the recovery of both of which the action will lie, but on the trial fails to sustain his claim to one of them ; (0 Ri^rcway's Case, 3 Co. 52; Brace r. Taylor, 2 Atk. 253 ; Piggott v. Williams, 6 Mad. 95.— (u) Sprigg v. Weems, 2 H. k McH. 266. LINGAN V. HENDERSON. 257 yet he may have judgment for the other, his right to which he estahlislies.(t;) Or suppose, that as a cause of suit the plaintiff alleges, that he has a right to a hundred acres of land which has been withheld from him ; there, as the subject in controversy is divisible in its nature, the defendant may take defence for only a part, or he may defend for the whole ; but if the plaintiff estab- lishes a title which covers a less number of acres, he may be relieved ; because so far he shews, that he has a sufficient cause of action. Or suppose the suit to have been brought against two or more defendants, each of whom makes a separate defence, and the defence of one, applicable to himself alone, shews, that he ought not to be charged ; and the others fail in tlieir defence ; the plaintiff may have his entire relief against them, although the bill must be dismissed as to the one who had successfully defended only so far as he himself was charged ;(w) because no defence going to the whole, and showing, that the plaintiff had no cause of action having been estabhshed, he. may be relieved as against all the other defendants who had either made no defence, or faded to establish either any such general defence as went to the whole, and to show that the plaintiff had no cause of suit whatever ; or any such particular defence as went to show, that although there might be such a cause of action against others, yet he, that defendant, could not be charged by it. In these and in all similar cases, where the cause of action is made up of several distinct items ; or in so far as the subject of it is divisible in its nature ;(j:) or where it bears upon the several defendants in a disjunctive, separate, or limited manner, the relief gi-anted may be accordingly for the whole or for a part only of that which is the subject of the cause of suit; or it may be granted against all the defendants, or against some or one of them only, or against each pro rata, or in different proportions. (y) But in all cases, in equity as well as at law, the relief is, and can only be granted, because of its having been admitted or established, that there is and was, when the suit was instituted, a valid and existing cause of action, of which the court might take cognizance, and which by no defence, going to the whole, had been shewn by all, or any one of the defendants to have been entirely barred, satisfied or extinguished in any way whatever. These are general well {v) (Godfrey's Case, 11 Co. 45 ; Gregory v. Moleswoith, 3 Atk. 627. — (lu) 2 Will. Ex'rs. 1218.— (.1) Robinson v. Bland, 2 Burr. 1082.— (»/) Mason r. Peter, 1 Mun. 437. 33 258 LINGAN V. HENDERSON. established elementary principles by which all courts of justice, as well those of common law as of equity, are governed. They are merely modifications of the one great fundamental rule, which declares, that in so far, and no farther than there is a cause of com- plaint can there be any foundation for relief. This matter is thus explained and exemplified by Lord Coke : " In a plea personal against divers defendants, says he, the one defendant pleads in bar to parcel, or which extendeth only to him that pleadeth it, and the other pleads a plea which goeth to the whole, the plea that goeth to the whole, that is, to both defendants, shall be first tried ; and of this opinion was Littleton in our books, for the trial of that goeth to the whole ; and the other defendant shall have advantage thereof, for in a personal action the discharge of one is the discharge of both. As for example, if one of the defendants in trespass plead a release to himself, which in law extends to both, and the other pleads not guilty, which extends but to himself; or if one plead a. plea which excuses himself only, and the other pleads another plea which goeth to the whole, the plea which goeth to the whole shall be first tried ; for, if that be found, it maketh an end of all, and the other defendant shall take advantage hereof, because the discharge of one is the discharge of both. But in a plea real it is otherwise ; for every tenant may lose his part of the lands. As if a praecipe be brought as heir to his father against two, and one plead a plea which extendeth but to himself and the other pleads a plea which extends to both, as bastardy in the demandant, and it is found for him, yet the other issue shall be tried, for he shall not take advantage of the plea of the other, because one joint tenant may lose his part by his misplea."(c) In an action of trespass for taking certain goods and chattels, against two defendants, the one pleaded a special justification, and the other not guilty ; upon both of which pleas issue being joined, a jury was sworn, who found a verdict for the defendant on the special plea, and found the other defendant guilty, and assessed damages and costs. Upon a motion in arrest of judgment it was held, that if the one defendant justifies by the gift of the goods so as to destroy the plaintiff's title, and shews, that he could not have cause of action, which is found accordingly for that defendant, although the other- defendant be found guilty, yet no judgment (z) Co. Litt. 125. LINGAN V. HENDERSON". 559 shall be against him, because it appeared to the court the plain- tiff had no cause of action, (a) An action of covenant was brought against two for not building a house for the plaintiff according to their covenant ; judgment was against one by default ; the other pleaded performance, and it was found for him. Wliereupon it was moved in arrest of judgment, that no judgment nor writ of enquiry' of damages could be against him, against whom the judgment was by default ; because, although in trespass, one may be guilty and the other not ; yet in covenant, debt or other contract where it is joint, the one cannot be convicted without the other; and here by the verdict for one of the defend- ants, that the covenant was performed, it appeared, that the plaintiff had not any cause of action ; and therefore should not have judgment; and so should it be, although the defendant against whom the judgment was by default had confessed the judgment. It was also resolved, tliat the defendant should have costs on the verdict against the plaintiff, for now it was a verdict against him^ and that he should have neither costs nor damages against the other.(6) In an action of trespass brought by Biggs against Benger 4' Greevfield for entering his close and taking away his goods and chattels, judgment was given against Benger by default; but Greenfield as to the force and arms pleaded not guilty, upon which issue was joined ; and as to the entry and taking away of the goods he pleaded, that Benger had leased to the plaintiff the close therein mentioned for a certain rent, which being in arrear, he, the defendant Greenfield^ took the goods as a distress, and thereupon the plaintiff requested and gave him license to sell the goods, and to pay the money arising thereby to the defendant Benger in satis- faction of his rent, which was done accordingly. Upon which issue was also joined; and a jury having been sworn to try the issues and assess damages against Benger^ they found a verdict on the issues for the defendant Greenfield^ and assessed damages against Benger. Upon a motion in arrest of judgment against Benger it was held, that this case of a license cannot be distin- guished from a gift of goods, or a release which destroys the cause of action as to all the defendants ; and therefore the judgment was arrested as to both.(c) (a) Martin v. AylifTe, Cro. Jac. \?,\.—{b) Porter v. Harris, 1 Levintz, 63; Mor- gan V. Edwards, 6 Taunt. 394; Weaver v. Prentice, 1 Esp. N. P. C. 369.— (c) Biggs c. Benger, 2 Ld. Eaymd. 1.372 ; 8 Mod. 217. 260 LINGAN V. HENDERSON. Upon this general rule, that the shewing in any way whatever, that the alleged cause of action never existed, or that it had been extinguished, furnishes a complete answer to all claim to relief, it has been settled, that if an obligee, by his will, makes one of the obligors his executor, and dies, the action at law is thereby discharged as against all ; because there being at law but one duty, extending to all the obligors, the discharge, or suspension of the action as to one, extinguishes it as to all.(c/) And although in equity, and by the act of Assembly, the debt due from such executor is to be considered as assets in his hands, yet the principles of law have not been altered in any other respect whatever.(e) If there be several executors they may plead different pleas ; each of them may put in, for himself, none other than the plea of plene adminis- travit ; and as such a defence does not controvert the existence of the cause of action, but merely denies a sufficiency of assets wherewith to satisfy it ; if the one of such pleas should be found for and the other against him who pleads it, yet the plaintiff may have relief against that one executor, although his suit must be dismissed as against the other, (y) But if, in addition to such a plea, one of the executors should plead a release, or rest his defence upon any matter going to the whole cause of action, and it should be found for him, the plaintiff must be barred, and can have no relief wdiatever ; although the other executor had even acknow- ledged the action, or made default ; because it would appear upon the whole record, that the plaintiff had in fact no cause of action, (o-) The wife, executrix to her husband, married a second husband. A bill is exhibited against them to discover the trust ; the husband and wife disagree in the matter, and put in severally their answers ; the husband denied the trust, but the wife confessed it. The cause proceeded to hearing, and the plaintiff proved the trust only by one witness, which the plaintiff insisted on with the wife's confession, to be sufficient ; the matter being but in that wherein she was concerned as executrix. But the bill was dismissed, quia -the wife's answer shall not bind the husband. (A) But upon a bill brought against husband and wife for lands held by them in her right, the husband having made default, the wife got an order to answer separately ; and thereupon answered, setting forth a title to herself {d) Clieotham v. Ward, 1 Bos,& Piil. 630; 2 Will. Ex'rs. 812.— (e) Berry i>. Usher, 11 Ves. 87 ; Simmons v. Gutteridge, 13 Vcs. 264 ; 1798, ch. 101, subch. 8, s. 20.— (/) 2 Will. Ex'rs. 1218.— (g-) Elwell v. Quash, 1 Stra. 20; 3 Bac. Abr. 33; 2 Will. Ex'rs. 1193.— (//) Anonymous, 2 Ca. Cha. 39. LINGAN V. HENDERSON. 2gX of the inheritance. It was held, that there could be no decree against her ; but the bill was taken j^^'o confesso against the husband only, and he Avas ordered to account for all the profits of the land received since the coverture, and the profits which should be received during the coverture, &c.(i) Whence it appears, that in equity as at law, where the defence made by any one defendant extends only so far as to cover nothing- more than the interest of him by whom it is made, the plaintiff may yet have relief if he establishes his claim against the other defend- ants ; but that where the defence made by one defendant goes to the whole cause of complaint, and the plaintiff fails to establish his case in opposition to such defence, he cannot be relieved in any way whatever, although his claim should be confessed by the other defendants. In a case where Wliistler had given his note to JolUffe for the payment of $4500, in Turkey, where JolUffe continued to reside some time before his return to England, Whistler^ after the giving of this note, made his will, appointing Pitt his executor, and died. Some time after Pitt having come to England and qualified as executor, JolUffe filed a bill in chancery against him, and some others, the creditors of his testator, for an account of tlie assets and for the recovery of this debt. The defendant Pitt submitted to do as the court should direct ; but the defendant creditors insisted the plaintiff was bound by the statute of limitations. The Chancellor inclined to the opinion, that the statute of limitations was not to take place. The time till JVJiistler^s death being answered, and the executor being beyond sea, the statute of 4 and 5 Aniie, c. 16, s. 19, took place, which saves the right of action as well where the debtor is beyond sea as where the creditor is beyond sea. Whereupon the case was referred to the master to take an account and to allow the plaintiff's claim, &c.(j) This is all that is said by the court in relation to the bearing of the several defences ; whence it is evident, that had not JolUffe^s claim been taken out of the statute of limitations, as relied on by only a part of the defendants, he could have had no relief, even although the executor had submitted to do as the court should direct. A fejne covert before her marriage, with the consent of her then intended husband, conveyed an estate to her separate use, and after her marriage she borrowed ^£25 upon her bond : ten years after- (i) Ward V. Meatli, 2 Ca. Cha. 173.— (>) JollUfe v. Pitt, 2 Vein. 694. 262 LINGAN V. HENDERSON. wards she made her will, thereby giving several specific legacies, and made A and B executors ; on her death her husband possessed himself of moneys which she left, to the amount of .£24 ; after which the obligee in the bond brought a bill against the executors and the husband ; and one of the executors confessed assets ; but the husband insisted upon the statute of limitations. Master of the Rolls. It is true, that the bond given by \he feme covert is merely void, and in that respect differs from a bond given by an infant, which is only voidable. It is likewise true, that the defendant, insisting upon the benefit of the statute of limitations by way of answer, shall, at the hearing, have the like benefit of the statute as if he had pleaded it. But in this case, all the separate estate of,- the feme covert was a trust estate for payment of debts, and a trust is not -wdthin the statute of limitations. From whence it seems as if the plaintiff ought to be at liberty to prosecute all the defendants, in order to be paid out of the separate estate left by the feme covert, to which purpose such part of the separate estate, as is undisposed of by the will, ought to be first applied. In the next place, if that be not suflScient, the creditors are to be paid out of any money-legacies given by the feme covert ; and lastly, sup- posing there is still a deficiency, all the specific legatees ought to contribute in proportion. Neither can it be material, .so as to excuse the other defendants, that one of the executors of X\iQ feme covert has admitted assets ; for he might admit assets, and yet have none, nor any estate of his own. And it would not be reasonable, that this should prevent the plaintiff, the creditor, from prosecuting the other executor, or the husband, who may have possessed themselves of part of the separate estate, and ought to be responsible. For which reason, let all the executors account for what they respec- tively have in their hands of the feme coverVs personal estate, or the produce thereof, and let the same be liable in the order afore- said, reserving costs. (/c) From this case two points, in relation to the matter under con- sideration, seem to have been treated as settled : first^ that a plea of, or a reliance in answer upon the statute of limitations by one defendant alone, if sustained, would be a sufficient bar of the whole, although the claim should be admitted by all the other defendants ; and secondly, that the confession of assets by one executor, without actual satisfaction, is no bar to a recoveiy against (7c) Norton v. Turvill, 2 P. Will. 141. LINGAN V. HENDERSON. 263 the other executor; because until the entire cause of suit has been barred or satisfied, each executor is liable for the whole, so far as he may have assets. And so upon a bill of revivor against several, although but one of the defendants by his answer insisted, that he had no title to revive : it was held, that the plaintiif must at the hearing shew, that he had a good title to revive, or he could take nothing by his suit.(/) A bill was filed in the Court of Chancery of New York, by Morris and Mowatt, as assignees of Sands, a bankrupt, against Clason and Stanly. From which case, among a v) Toplis V. Baker, 2 Cox. 123 ; Pow. Mort. 361, note T. .39.3 note, 1153, 1155. (X) Bidlake v. Arundel, 1 Rep. Cha. 93 ; Hunton v. Davies, 2 Rep. Cha. 44 ; Mar- thews Presuin. 395.— (?/) Pow. Mort. 96C, note G. ; Hughes v. Edwards, 9 Wheat. 494. LINGAN V. HENDERSON. 283 perfectly evident, that the statute of limitations, in no form in which it could have been relied on as a defence, could operate as a bar to the equitable lien by which this land was bound to the plaintiffs for tlie payment of the purchase money. And it being entirely clear, from the pleadings and proofs, that the purchase money agreed to be paid by the late John Henderson^ for the four hundred and tw^enty acres of land he purchased of the late James M. Lingan, never has been paid by any one ; and that the vendor's lien for its security never has been abandoned, or in any way extinguished, the plain- tiffs must be relieved, under their general prayer, in the most advantageous and effectual manner authorized by the nature of their case. Whereupon it is Decreed, that the bill of complaint as against the absent defendants, w^ho have not answered, be taken pro con- fesso. Decreed, that the statement of the auditor be confirmed ; and that the defendants, on or before the 8th of June next, pay or bring into this court, to be paid unto the said Janet Lingan, as administratrix of /a7?i€sJlf.Zt«o-a??, the sum of $11, 924 14, with legal interest on $5573 33, part thereof, from the fifth day of the present month until paid or brought in. And Decreed, that upon the failure of the said defendants to pay or bring into court the said sum of money as aforesaid, that then the said land and property in the proceedings mentioned, be sold for the payment of the same ; that Louis Gassaioay be and he is hereby appointed trustee to make the said sale, &c. &c., in the usual form. The defendants appealed from this decree, and at June term, 1830, the Court of Appeals reversed the decree, and dismissed the bill of the complainants with costs, but filed no opinion. In the case of McCormick v. Gibson, 3 Gill ^ Joh. 18, the Court of Appeals have, however, concisely stated their views of this case. 284 OGDEN V. OGDEN. OGDEN V. OGDEN. The statute of frauds does not embrace mutual promises to many, but extends only to agreements to pay marriage portions ; and in such cases according to the proper si"-nification of the word agreement ; the whole, the consideration as well as the promise, must be iii writing. If a person \\Tites a letter promising to give a fortune with his daughter or niece to a man if he should marry her ; and, under the encouragement of the letter, the man does many her, he shall recover ; the agreement having been executed as far as it could be on his part ; but the court must be satisfied, that the letter imports a concluded agTeement, or affords sufficient materials for a more fonnal agreement. This bill was filed in Baltimore County Court, on the 7th of June, 1818, by Jo/m W. Ogden and wife, to recover of the representatives of their late uncle Aminos Ogden, a marriage portion, which the bill alleges, he had promised to give her. After the answers had come in, and testimony had been collected, under a commission issued from that tribunal, the case w^as removed to this court under the act of 1824, ch. 196, and- the proceedings filed here on the 15th of May, 1826. Some time after which the case was brought on for a final decision. All the circumstances are fully and carefully stated by the Chancellor. bth June, 1821. — Bland, Cliancellor. — This case standing ready for hearing, and the solicitors of the parties having been heard, the proceedings were read and considered. Laying aside such of the allegations of the parties as are neither admitted nor sustained by proof, with the irrelevant testimony, and the case is this : — Amos Ogden, owing to some unhappy circum- stances, had separated, and lived apart from his wife, during a period of about thirty years before his death; he had no children; and his wife survived him. At the time of his death he had a considerable estate ; consisting of lands lying in Baltimore county, lands in the Big-bend of Green river in Kentucky, and some personal property. About ten years before his death, his niece JVancy Ogden, then about seventeen years of age, was brought to live with him. He maintained and educated her ; and she managed his household affairs ; in which situation he became so attached to her as to con- sider her as his adopted child. Some time in the early part of the year 1817, John W. Ogden, a nephew of Amos\ and a cousin of JVancy^ s, visited and address- ed lier ; a mutual attachment was formed, and they became engaged to be married at a convenient time thereafter. On the OGDEN V. OGDEN. 285 first of May, 1817, Amos Ogden bound himself, by a bond, to dis- tribute most of his personal property ainong Amos Ogden of Stephen, JVancy Ogden, and Sarah Barket. Under these circumstances, on the 22d of IMay, 1817, he wrote a letter to his brother Benjamin Ogden, the father of John W. Ogden, of which the following extract is all that is material to this case : — " DeAr Brother — " With joy, on the 17th of April last, I received your favour by your son Capt. John W. Ogden, together with my land papers on Phillips, and have to regret, that I have been compelled in giving you so much trouble in the arrangement of my business. But mean to compensate, if giving the largest part of that land will compen- sate, to your children. I shall deed to your daughter Mary T. Harpenden, and your son StepJien T. Ogden, two hundred acres each, and the remainder to your son John W: Ogden, and his expected spouse JVancy Ogden of our dear brother Stephen, as joint tenants, and to the survivor in fee simple for ever. I have got to inform you, and my loving sister JVancy Ogden, your dear wife, that my dear adopted daughter JVancy Ogden of Steplien, and your son John W. Ogden, is expected to be married some time between this and next spring, as will best suit his return to Maiyland. I can tell you, my dear brother, (though my heart bleeds at the idea of her leaving me forlorn of any child to comfort me in my advanced age of life,) I rejoice to think, that she is agoing to be connected to so worthy a man as your son ; and I have no doubt but that the Lord will bless them in their afiections. She has lived with me nearly ten years, and has conducted herself in such an amiable manner, that both at home and abroad she is beloved. As to the things of this vrorld, I shall bestow on her, at her parting with me, about six thousand dollars worth of real and personal property ; and at my death, if blessed by Divine Providence, at least as much more. You and I do not agree as to the real value of the land in the Big-bend ; I should be loth to convey that land to a stranger for less than ten dollars per acre. You will recollect, brother, that there is a great many people in Europe, and as soon as opportunity will admit, will emigrate to America." This letter was endorsed in the same handwriting, thus : — " Copy sent Benj. Ogden."*^ Amos Ogden, on the 27th of IMay, 1817, a few days only after he had written this letter to his brother, made his will, in which, among other things, he says : — " And whereas it is agreed and 286 OGDEN V. OGDEN. expected, that my nephew John Wesley Ogden of Benjamin, and my niece JVancy Ogden of Stephen, will be married to each other some time early this ensuing winter ; therefore I give unto them the said John Wesley Ogden nnd JYancy Ogden, as joint tenants and to the survivor in fee simple, seven hundred acres of land in. the State of Kentucky, it being a part of a tract of land, that I purchased from a certain Philip Phillips, out of his twenty-two thousand one hundred and seventy,, on the north side of Green River, and to begin at the upper corner of said survey," &c. " I also give to them the said John Wesley Ogden and JVancy Ogden, as joint tenants and to the survivor in fee simple for ever, part of a tract of land lying and being in Baltimore county, and known by Taylor's Purchase, it being part of that part of Taylor's Purchase that I bought of the real estate of William Lux, and was deeded to me by Samuel Moale, Esqr. as trustee by order of the Honourable Chan- cellor, and to be strictly included within the following metes and bounds, courses and distances," &c. "But it is to be understood, and so my will is, that the said John Wesley Ogden and JVancy Ogden, shall not be entitled to the said part of Taylor's Purchase, except they shall pay, or cause to be paid, such debts or balances of such debts, and to such persons as I shall charge against her the said JVancy Ogden, and only charged and credited on the pages of this my will, and that in my own handwriting," &c. "And whereas I have had many services from Ainos Ogden and JYancy Ogden and Sarah Burket, and to secure them in part for such services, I have given to them my bond for the conveyance of all my personal property as hereto annexed, and dated 1817," &c. The marriage of John W. Ogden and JYancy Ogden was solem- nized on the 25th of December, 1817, and they lived with their uncle until his death, which happened on the 10th of February following, without his having altered or revoked the will he had so made and published. The original letter of the 22d of May was received by Benjamin Ogden, to whom it was directed ; and was sent by him to John W. Ogden, but miscarried, and has been lost. The copy now produced was seen in the hands of John W. Ogden as early as the month of August previous to his marriage ; but how he obtained possession of it does not appear ; it has been however proved to be an exact copy, and altogether in the handwriting of the late Amos Ogden. The witnesses speak of the verbal declarations of the late Jlmos Ogden of his affection for his niece JVajicy ; of his intention to give OGDEN V. OGDEN. 287 her a marriage portion ; to bestow upon her some of his property, or to provide for her in some way or other ; and some of the proofs describe a contract essentially different from that deduced from the letter. But the plaintiffs cannot be allowed to use the letter as evidence of a contract in connexion with a part only of the verbal testimony, rejecting the rest. The whole must be taken together ; and then the verbal proof, instead of sustaining, materially differs from and falsifies the terms of that contract, which it is contended is shewn by the letter. (a) The bill rests the plaintiff's pretensions upon the ground, that the late Amos Ogden induced John W. Ogden to marry JVancy by a promise, that he would give her twelve thousand dollars as a marriage portion ; , and refers to the letter of the 22d of May, and certain other circumstances, as evidence of that promise. The defendant Amos Ogden admits, that the copy exhibited is in the handwriting of the late Amos Ogden ; but all the defendants posi- tively deny having any knowledge whatever of any such promise ox inducement to the marriage as is charged in the bill. None of the defendants have, in their answers, relied upon the statute of frauds ; but it has been mainly insisted upon by them, in argument, at the hearing. The statute of frauds, so far as it is applicable to this case, is expressed in these words : — " No action shall be brought whereby to charge any person, upon any agreement made upon consideration of marriage, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. "(6) This clause was at one time supposed to embrace mutual pro- mises to marry, but that notion has long since been abandoned, and it is now held to extend only to agreements to pay marriage portions, or to such cases as the one now under consideration. (c) The word " agreement," it has been settled, must not be loosely construed, but be taken in its proper and correct sense, as signify- ing a mutual contract on consideration between two or more parties ; the whole of which, the consideration as well as the promise, must be in writing. (d) (ffl) Cooper V. Smith, 15 East, 103.— (6) 29 Car. 2, c. 3, s. 4.— (c) Harrison v. Cage, 1 Ld. Raym. 387.— ((Z) Wain v. Warlters, 5 East, 10; Stadt v. Lill, 9 East, 348; Randall v. Morgan, 12 Ves. 7-1. 288 OGDEN V. OGDEN. In cases of this kind the defendant may be compelled to answer fully to all the material allegations of the bill, whether he insists upon the benefit of the statute of frauds or not. But, if the statute is relied on, there can be no decree for the plaintiff, although the parol agreement should be admitted by the answer ; and, con- sequently, to obtain relief, in such case, the plaintiff must either prove an agreement completely in writing, or such a part perform- ance of the parol agreement admitted by the answer, as will take the ease out of the statute. But if the defendant does not say any thing about the statute, then he must be taken to have renounced the benefit of it.(c) The sole question is, then, whether the late Amos Ogdcn did sign an agreement in writing in consideration of this marriage, binding himself to give his niece JYancy, a marriage portion of twelve thou- sand dollars as is alleged ; or whether there has been such a part performance as should induce the court to enforce a compliance with any parol agreement to that effect. Marriage alone is not considered as a part performance of a contract of this nature ;(/*) yet if a person writes a letter promis- ing to give a fortune wuth his daughter or niece to a man if he should marry her ; and, under the "encouragement of the letter, the man does marry her, he shall recover ; the agreement having been executed, as far as it could be, on his part.(o-) And such a letter addressed to the father, or a friend of the man, on his behalf, will be as obligatory as if addressed to the man himself. (A) But here, as no parol agreement has been admitted or proved, it will be unnecessary to say what should be deemed a binding partial per- formance of a contract in consideration of marriage. The whole of this case rests upon the letter of the 22d of May, 1817. If that cannot be considered as an agreement within the meaning of the statute of frauds, there is an end of the case. The cases in which letters have been considered as constituting such an agreement, have gone fully as far, perhaps farther, than a just construction of that statute will warrant. They all, however, go upon the principle, that the court must be satisfied by a fair interpretation of the letters, that they import a concluded agree- ment ; or afford sufficient materials for a more formal agreement. (c) Whitchurch v. Bevis, 2 Bro. C. C. 567 ; Cootb v. Jackson, 6 Ves. 37; Blagdeii ;•. Bradbear, 12 Ves. 471 ; Rowe v. Teed, 15 Ves. .375.— (/) Taylor v. Beech, 1 Ves. 297.— (,f?) Scairood v. Meale, Prec. Cha. 560.— (/() Moore v. Hart, 1 Vern. 201 ; Wclford V. Bcczely, 1 Ves. 6 ; S .C. 3 Atk. 503. OCDEN I'. OGDEX. 289 But if it be reasonably doubtful, whciher wliat passed was only a treaty, let the progress towards the confines of an agreement be more or less, or if it be doubtful, whether the language used was intended as expressive of an agreement, the court will not decree the specific performance of that which appears doubtful as a contract, (i) But this letter is deficient in almost every substantial particular. It is not a promise in any sense. The writer speaks of circum- stances which have occurred ; of a marriage then contemplated ; of what he intended to do ; and of the manner in which he meant to dispose of his propert}\ But there is not the least intimation that he had brought about the courtship, or had encouraged John W. Ogden to marry his niece by any promise of a fortune with her. He does not undertake, agree, or oblige himself to give any things He tells his brother what he means to do, should the marriage take place ; but he binds himself to nothing ; every thing is reserved entirely within his own power.(j) The plaintiffs had resolved to marry before this letter was written : therefore, even supposing it had been shewn to John W. Ogden, it could not have been the inducement upon which he addressed and became engaged to marry Ifancy Ogden. Whatever were his hopes and expecta- tions, they existed prior to, and independently of this letter; they could not have arisen in any respect from it.(/t) There is no proof, that the late Amos Ogden had induced tlie plaintiffs to enter- tain any hopes or expectations of his bestowing any thing upon them in consideration of their marriage. After they had become engaged, he then expressed his entire approbation, and he then formed his liberal determination ; but there is no proof that he himself communicated it to them prior to their engagement. And in his letter to his brother, there is nothing which gives to that determination the character of a contract. Being perfectly satisfied upon these grounds, that the plaintiffs have not established such a case as to entitle them to any relief whatever, I deem it wholly unnecessary to say any thing in rela- tion to the doctrine of satisfaction and election ; or how far the devise to John W. Ogden and his wife, and their having actually elected to take under the will, is to be considered as a satisfac- tion and election in bar of their claim ; since it is my opinion (i) Huddleston v. Briscoe, II Ves. 583 ; Stratford v. Bosworth, 2 Ves. & B. M\ \ Allen r. Beiinct, ."> Taunt. 173.— (7) Randall v. More;an, 12 Ves. 07; Morison v Turnoiu-, 18 Ves. 175.- (/f) Ayliffc v. Tracy, 2 P. Will. 65. 37 290 REBECCA OWINGS' CASE. that the testator had not bound himself to them by any contract whatever. Whereupon it is decreed, that the bill of complaint be, and the same is hereby dismissed with costs, to be taxed by the register. REBECCA OWINGS' CASE. A person who is actually non compos mentis, but who has not been found to be so under a writ Be Lunatico Inquirendo, may be permitted to sue, as co-plaintiff, with another; who may be treated as his committee, and required to give bond to account for any money directed to be paid to him lor the use of the lunatic. The granting of a writ De Lunatico Inquirendo is, in some measure, discretionary with the Chancellor ; and may be dispensed with for good cause for the benefit of the lunatic. Although the court cannot dispose of the person, or estate of a citizen who is a lunatic, without his having been found to be so by a regular inquisition ; yet it may, under particular circumstances, extend its protection to his person or estate, with- out any such previous inquest. A charge of an annual sum upon lands, for the support of a lunatic, though not a rent, is an incumbrance, following the estate, the prompt payment of which may be enforced, either as against the person, or personal property of the holder, or by putting a receiver upon the estate. This bill was filed, on the 3d of September, 1819, in Baltimore County Court, by Rebecca Owings and John Cromwell and Urath his wife, against William Owings, to recover an annual sum of money given to Rebecca, by the will of her father. After the defendant had answered, and testimony had been taken, the case was removed to this court, under the act of 1824, ch. 196 ; and the papers were filed here, on the 9th of February, 1827. Some time after which it was brought before the court ; and, on the 9th of June, 1827, the case was referred to the auditor to state an account of the amount then due to Rebecca Owings. The auditor made and filed his report accordingly, on the 14th of June. The circumstances of the case are sufficiently stated by the Chancellor, in delivering his opinion. Ibth June, 1827. — Bi^k^h, Chancellor. — This case standing ready for hearing, the solicitors of the plaintiffs having been heard, and no counsel appearing for the defendant, the proceedings were read and considered. It appears, that the late Samuel Owings left, at the time of his death, a large estate, consisting of real and personal property; and, REBECCA OWINGS' CASE. 291 among others of his children who survived him, are two of the plaintiffs, Rebecca and Urath, and the defendant William. His daughter Rebecca being unable, by reason of her mental imbecility, to take care of herself, he made for her a special provision by his will, in connexion with the devise to his son William ; to whom he gave a large portion of his real estate. " To hold the same," (these are the words of this testator,) " to him the said William, Owings, his heirs and assigns, for ever, upon these express condi- tions, that he and they, or the person or persons to whom the estate devised to tlie said William OwingSy may eventually pass, maintain my daughter Rebecca, or pay sixty pounds current money a year for her maintenance during her natural life." This will bears date on the 7th of May, 1803, and the testator must have died soon after, although it is not stated when ; because it appears to have been proved on the 2oth of June, in the same year. Rebecca, after the death of her father, continued to reside with her mother, the late Deborah Owings, until her death, which hap- pened in December, 1810 ; and was taken care of and altogether maintained by her. The late Deborah, under an apprehension that the provision made by Rebecca's father for her maintenance, might not be regularly applied, or that it might be inadequate, by her will, also made provision for her support. After some specific legacies, she gives all the residue of her estate to her eight daughters by name, including Rebecca, to be equally divided ; and then says : — " It is my will and desire, that the portion of my estate, above bequeathed to my daughter Rebecca shall, so soon as convenient after my decease, be laid out by my executors, herein after named, in the purchase of bank stock ; and the said stock, when so pur- chased, shall be held in the name of my said daughter Rebecca. And I do hereby authorize and empower my daughter Urath Cromwell to demand and receive the interest or dividends arising from the said bank stock, and to apply the same to the support and maintenance of my said daughter Rebecca during her natural life ; it being understood, that my said daughter Rebecca is to be removed to the house of my said daughter Urath Cromwell, and fi-om and after the decease of my said daughter Rebecca, I do give and bequeath the bank stock aforesaid unto my said daughter Urath Cromwell, as a compensation for her trouble in providing for and taking care of my said daughter Rebecca.^' After the death of this testatrix, Rebecca went to reside with the plaintiffs, Cromwell 292 REBECCA OWL^^GS' CASE. and wife, by whom she has been taken care of and maintained ever since. The bill does not introduce Cromwell and wife as the next friends of Rebecca^ but merely in the character of co-plaintiffs ; and then states, " that Rebecca being, by the providence of God, gifted from her birth with but a small share of reason and judgment, and inca- pable, of herself, without the help and kindness of her friends, to take care of herself, or to manage and dispose of property." But it is not alleged, nor does it appear, that she has, by any judi- cial proceedings, been found to be a person of unsound mind, or non compos mentis. Nor do the plaintiffs Cromioell and wife show, or claim any interest whatever in the matter in controversy. All these facts are admitted by the defendant ; and he also admits, that he has never, at any time, maintained, or paid any thing towards the maintenance of Rebecca. But he alleges, that he has always been ready and willing to maintain her, wdien called upon ; and, that he would have done so, if he had been permitted. The acquittance from his mother, which he has exhibited, and seems to place some reliance upon, may be at once laid aside as having no material bearing upon this case. The plaintiffs, by their bill, pray specially, that the defendant William Owivgs may be compelled to pay to John Cromwell and Urath his wife, for the use and benefit of the said Rebecca Owings, ■whatever may be now due, or may hereafter become due to her under her late father's will : and generally, that the plaintiffs may have such other relief as may be agreeable to equity and right. Thus it appears, that justice is demanded in behalf of one of that unfortunate class of persons who are held to be most peculiarly under the guardianship of this court. The case is of a delicate and anomalous nature ; yet it is one in which, it is quite evident, that relief, by some means or other, ought to be gi'anted. There are, however, difficulties in the way, which must be overcome or removed. The first of them which presents itself, is as to the parties. If all those who have an interest in the subject, and w^ho ought to have been brought before the court, have not been made parties, it may be taken advantage of by demurrer, by plea, or at the hearing. On the other hand, if a person be made a defendant unnecessarily, the bill may be dismissed as to him, and proceed as to the others. (fl) (a) 2 Mad. Chan. 174. REBECCA OWIXGS' CASE. 293 The predicament of this case is different. The right is admitted to be exclusively in one only of the plaintiffs ; and the special prayer is, that the relief may be decreed to the two, who have no interest, for the use of the one who has the right. Cromwell and wife, it is clear, can have none, or a very remote interest in the matter now in controversy. The care of Reheccci's person was commended to them by the last will of her mother. But it is not even intimated, that they have been thus clothed with the charac- ter of her testamentary guardians ; and there is in fact not the least foundation for their assuming any such office. They are not the procheiri amys of Rebecca, because they do not so present themselves ; nor do they state her to be an infant, J^eme covert, or lunatic ; or to be in that situation in which they would be author- ized to accompany her into court as prochcin amys. It may be inferred from what is said in one of the books of practice, that a lunatic may sue by prochein amy ;[b) the expressions of the com- piler are, however, unwarranted, in that sense, by any adjudged case whatever. But according to the loose proceedings of the Land Office, it seems, that a warrant of resurvey was obtained by his next friend for the benefit of one who was then non compos mentis, although not found to be so by inquisition, (c) A lunatic, that ia, one who has been found and returned to be non compos mentis, can only sue by his committee. [d) Rebecca has not been judicially declared a lunatic ; and consequently she can have no committee by whom to institute any suit. It follows, therefore, that if there are no other principles upon which Cromwell and wife may be associated in this suit with Rebecca, no relief can be granted upon this bill as it now stands, but it must be amended or dismissed. (e) Generally and technically speaking, those only are called luna- tics who have been so found and returned. Without an inquest and return thereon, no one can be judicially treated as a lunatic, and be debarred of his liberty, or have the management of his pro- perty taken from him. The power to divest a citizen of his per- sonal freedom and of his property is one of a most extraordinary and delicate nature ; and should, .therefore, never be exercised without observing every precaution required by the law. But, although this court will, in no case, undertake to go all lengths ; (6) 1 Harr. Pra. Chan. 773.— (c) Land H. A. Io0.-^{d) 2 Mad. Chan. 175; 1 Ilarr. Pra. Chan. 762.— (e) The King of Spain v. Machado, 4 Russ. 225. 294 REBECCA OWINGS' CASE. and to confine or dispose of the person of any one, as a lunatic, until he has, upon solemn inquisition, been found to be non compos mentis ; yet it will grant relief and protection to such persons without and previous to their being adjudged to be non compos. On a proper application, the granting of a writ de lunatico inqui- ■rendo is generally a matter of course ; but still it is discretionary. If the Chancellor sees, that the interests of the subject of it, may be promoted, or his health benefited by withholding or suspending it, he may do so. The object of the Chancellor's authority in matters of lunacy is to protect and take care of citizens, who are intellectually unfortunate ; hence, it has been always so exercised as most effectually to attain that object.(y) If the execution of a commission of lunacy would in all probability have a tendency to confirm the lunatic in his insanity ; or if his estate or income is too small to defray the expense of its execution ; or if the object in view may be attained as safely and as fully in all respects without it ; the execution of the inquisition may be suspended or dispensed with altogether. In short, there are many instances in w'hich the court will recognise and act upon the fact, that a person is in a partial or complete state of insanity, without requiring that fact to be established by a return to a writ de lunatico inquirendo.{g) I am of opinion, that this may be considered as one of those instances. The pension given to Rebecca by her father is not more than sufficient for her comfortable maintenance ; there is none to spare. It should certainly not be involved in any expense that can be avoided. The court is now only called on to enforce its payment and application ; which may be as safely done now as after an inquisition has been taken ; and certainly with more advantage and economy to Rebecca. I shall, therefore, proceed without requiring Rebecca to be formally declared a lunatic, and a committee of her person and estate to be appointed. It is stated and admitted, that the plaintiff Rebecca is, in fact, so far insane as to be incapable of managing her property. Her late parents have made a provision for her maintenance. But to order the property they gave her to be paid into her own hands would not be extending to her proper and adequate relief and pro- (/) Ex parte Tomlinson, 1 Ves. &. Bea. 57 ; Brodie v. Barry, 2 Ves. & B. 36. (g) Sheldon v. Aland, 3 P, Will. Ill, note; Lord Donegal's ca.se, 2 Ves. 408 ; Ma- chin V. Salkeld, Dick. 634 ; Bird v. Lefevre, 4 Bro. C. C. 100 ; Eyre v. Wake, 4 Ves. 795 ; Ex parte Cranmer, 12 Ves. 446 ; Wartiiaby v. Wartnaby, Jac. Rep. 377 ; 1 Mont. Dig. 39 ; Shelf. Lun. & Idiots, 436. REBECCA OWINGS' CASE. 295 lection ; or rather it would amount to an absolute frustration of the good intentions of her parents. The relief must, therefore, be so conducted as to accomplish the object in view; that is, the main- tenance of Rebecca. This cannot be done without the instrumen- tality of a trustee, who may be charged with the receipt and appli- cation of the fund that has been appropriated for that purpose. One of her provident parents has made a selection of trustees for her ; which, so far, seems to be conceded to have been a judicious one. I shall, therefore, confirm and act upon it. Not because I recognise the least right in the late Deborah Owings to appoint a trustee or guardian of the person or property of her daughter ; but, because I believe it to be my official duty to protect persons in the condition in which I find Rebecca ; and to do so effectually, I must appoint and use a trustee or agent. And Cromwell and wife hav- ing been recommended by one of the parents of Rebecca, (for so I consider what is said in the will of the late Deborah,) as suitable trustees ; and they having assumed that character ; with which, upon a proper application I might have clothed them ; I shall now sanction and confirm it to them ; — upon the ground that this court always retrospectively sustains and ratifies that which has been usefully and fairly done ; and which it would have ordered to be done. I shall require John Cromwell to give bond for the faithful application of the money I shall decree to Rebecca, and order to be placed in his hands for her use,(/i) And I shall accordingly regard this suit as having been instituted by Rebecca Owings, together with John Cromwell and Urath his wife as trustees of Rebecca, and thus pass over this first difficulty, as to the proper parties. The next question is, what is the nature of the bequest of the late Samuel Owings to his daughter Rebecca 9 The defendant seems to have a notion, that his father gave him the right to take charge of the person of his sister, and to maintain her as he thought pro- per. But the devise conveys no such idea; and if it did, it is clear, that although a father may appoint a guardian of his infant children ; yet he cannot dispose of the custody of his adult chil- dren whether of sound mind or non compos mentis, in any way whatever. (i) It is evident, however, that the testator had no reference to the custody or the place of residence of his daughter ; his expressions show, that his thoughts w^ere directed exclusively to her maintenance, in whatever place she might dwell. And that (/t) Bird V. Lefevre, 4 Bro. C. C. 100.— (i) Ex parte Ludlow, 2 P. Will. 635. 296 REBECCA OWINGS' CASE. maintenance he endeavours to make as unalterably and imperisha- bly certain as the nature of things would admit. His son William was to take the estate he gave him expressly upon the condition, that he maintained Rebecca. William has taken the estate ; and, consequently, he has assumed this duty to Rebecca, and has become personally bound to her, in consideration of the estate he has thus taken and now enjoys. But this condition is not confined to Wil- liam Owings personally and only ; it is extended to " the person or persons to whom the estate may eventually pass." It is a con- dition, that runs with the land ; and is a continuing charge upon it.(^-) It is an incumbrance to which the land is liable in the hands of every one, (not having a better title than the devisor,) during the life of Rebecca. This charge upon the land devised to Willia7n Owings cannot be deemed a rent of any description ; nor can it properly be considered as an annuity ; because by an annuity the person alone is charged ; no land is encumbered with it. But here the land is charged, and the person only in respect of the enjoyment of that land. This devise, therefore, has given to Rebecca 2i particular interest in the land.(/) It has imposed upon it an incumbrance, which follows it into the hands of William and every other holder during the life of Rebecca. It is a kind of legacy, the punctual payment of which this court will, and, per- haps, only can enforce. It is then clear, that these plaintiffs are properly here ; and that they ought to obtain relief: the mode in which it should be granted is the only remaining enquiry. Under the general prayer the court is left free to adopt any mode by which it can most rea- dily and effectually administer that relief which the equity of the case demands. Where the relief asked is maintenance ; a subsist- ance for one who is utterly unable to take care of herself; and it is determined to be equitably due ; the court should, if practicable, leave no room to escape from or palter with its mandates. When helplessness is to be furnished with bread, the judgment which awards it should be clear, prompt, and easily enforced. According to the common law, if a party brought his lorit of annuity, and obtained judgment, that judgment stood as a security as well for the amount then due as for that which should thereafter (/c) The Mayor of Cone;leton v. Pattison, 10 East, 130 ; PowelPs Case, Nelson, 202 ; Elliot V. Merryman, Barn. Ch. Rep. 82.— (Z) Clark v. Rcss, Dick. 529; Few. Mort. 221, 10.32 ; Co. Litt. 4, 122 ; West v. Bi&coc, 6 H. U J. 460 ; Attorney General V. Christ's Hospital, 3 Bro. C. C. 165. REBECCA OWINGS' CASE. 297 become clue ; and the payment of the future instalments might be enforced hy fieri facias sued out within the year after every day of payment, though it might be many years after the judgment. (?7i) And in an action of debt upon a bond conditioned for the payment of certain sums of money on certain days by way of instalments ; or upon a bill in equity for the arrears of an annuity ; under a judgment for the penalty, or decree for the annuity, it was ruled, that the plaintiff should be allowed to levy by execution the sum found due at the trial; and that the judgment or decree should stand as a security for the future arrears, with liberty to apply from time to time to sue out fresh executions thereon. (?j) So in this court, wdiere alimony, or the payment of a certain sum annu- ally had been decreed ; the payments as they became due were enforced on petition and order in a summary way.(o) And where an estate has been mortgaged, the tenant for life in possession will be ordered to keep down the interest ; and if he does not do so, a receiver may be put upon the estate with directions to take, and apply the rents and profits to the interest as it becomes due on the mortgage, and to pay the surplus to the tenant.(7j) Upon these suggestions and analogies, I shall decree, that Wil- liam Owings forthwith bring into this court, or pay to the plaintiff John Cromwell^ the whole amount now due, with interest on each annual sum as it became due until brought in or paid ; and let the decree stand as a security for what may hereafter become due. The payment of the several sums, as they may hereafter become due, may, on petition, be enforced by a summary proceeding, either as against the person or personal property of William Owings ; and should he fail to pay the whole amount now decreed, or which may hereafter become due, I may be induced, on a proper application, to put a receiver upon the estate devised to him, with authority to take and apply the rents and profits of it under the directions of the court. The devise gives sixty pounds a year ; but does not distinctly say from what date it is to be computed. This charge, from its nature, should take effect from the day of the death of the testator ;(9) but as the date of that event has not been clearly shewn, I shall direct the years to be reckoned from the 25th (m) 2 Inst. 471 ; Gilb. Excu. 12.— (n) Ridgely t;. Lee, 3 11. & McH. 94 ; Marshall v. Thompsou, 2 Mun. 412 ^ Sparks v. Ganigues, I Bin. 152; Kanclaugh v. Hayes, 1 Vern. 190.— (o) Darne y. Catlett, 6 H. &t J. 476 ; Uvwitt r. Hewitt, ante, 101. (j>) Pow. Mort. 300, note.— (-?) 2 Mad. Chan. S3. ^8 298 REBECCA OWINGS' CASE, of June, 1803, the day on which the testator's will was authen- ticated. Whereupon it is decreed^ that the report of the auditor be con- firmed ; that William Owings forthwith pay, or bring into this court to be paid unto John Cromwell, for the use of Rebecca Owings, the sum of $6476 91, together with legal interest on $3834 67, part thereof, from the 13th day of the present month, until brouo-ht in or paid ; that John Cromwell and Urath his wife are hereby appointed trustees of the property of Rebecca, with full authority to demand, receive and apply the same towards her main- tenance and for her benefit, under the directions of this court ; which property and money they shall deliver up, pay or bring into court, as may be required ; and they shall render an account thereof on oath to this court from time to time, at least once in each and every year during the life of Rebecca, or until the further order of this court ; that Jo/m Cromwell, before he and the said Urath his wife shall enter upon the duties of this trust, give bond to the State, in the penalty of fifteen thousand dollars, wuth surety to be approved by the Chancellor, for the faithful performance of the trust reposed in them by this or any future decree or order in the pre- mises ; — and that the defendant pay to the plaintiffs their full costs, to be taxed by the register. Upon the application of the plaintiffs z. fieri facias was on the 3d of April, 1828, ordered in general terms on this decree, but it does not appear that it was ever executed or returned. On the 6th of January 1830, John Cromwell, one of the plaintiffs, by his petition stated, that Rebecca Owings died on the 19th of August 1828 ; that he had maintained her in his house, with every comfort, dur- ing eighteen years prior to her death ; and had often attended her in his professional character of a physician ; that he had expended considerable sums of money in fees to lawyers, and costs of suit in defending her rights and interests ; and that no part of the amount decreed to her had been paid. Upon which he prayed, that the whole amount of his account might be ordered to be paid out of the sum of money so decreed to the late Rebecca Owings. 12th January, 1830. — Bland, Chancellor. — The sum decreed to the late Rebecca Owings should have been paid to her trustees as directed by the decree ; but that not having been done, as is alleged by this petitioner, and the case having abated by the death of Rebecca, it must be regularly revived before the decree can be CUNNINGHAM v. BROWNING. 399 enforced for the benefit of any one. On the death of Rebecca all the rights and authority of the petitioner John Cromwell^ as trustee, immediately ceased for every purpose whatever ; except that of closing his accounts and delivering over the property, if any, in his hands, to the legal representatives of Rebecca. But it does not appear, that this petitioner, who was appointed by the decree as the trustee of Rebecca, ever gave bond or qualified as required. The case w^as afterwards revived and the amount ordered to be paid to John Cromwell., which order on appeal was affirmed, and so the case was closed. CUNNINGHAM v. BROWNING. The manner of obtaining a patent grant for land. The objects of an inquest of office ; the cases in which it is required ; and the mode of proceeding by caveat to prevent the emanation of a patent in England and in Marjdand. The origin of the Land Office, considered as a branch of the Chancery Office ; the jurisdiction of the Judges of the Land Office, under the Proprietary Government, and of the Chancellor, at present, in relation to proceedings in the Land Office. The five several kinds of Land Warrants. The first designation of the land aimed at by one who wishes to purchase from the State, from the date thereof, by a special warrant in the Land Office, or by a special location on the surveyor's book, or by a certificate of survey, gives an incipient title against all others. The right thus acquired is not an equitable interest ; but an imperfect legal title, which, when completed, by a patent gi'ant, is considered as a legal title, by relation from the date of the incipient title. A special warrant, or a special location, to be deemed an incipient title, must so describe a space or area of land, as to distinguish it from all other tracts. It appears that James Cunningham, as assignee of two common warrants, on the 31st of October, 1826, placed them in the hands of the surveyor of Allegany county for execution; who on that day, in pursuance of the rules and orders established by the gov- ernor and council, noted down in his book the receipt of them, and designated the place at which Cunningham desired to have them located, in these words : " I hereby locate the within warrants for Jaincs Cunningham at a large spring on the west side of the North Fork of the Little Crossings, and near a large oak tree, marked J. C. ; and adjoining the south corner of lot number 2370." By virtue of these warrants, on the third day of November follow- ing, the surveyor laid out and surveyed a tract of land for Cunning- 300 CUNNINGHAM v. BROWNING. ham, containing two thousand four hundred and eighty acres and one-half acre, to be held by the name of Cheviot Bale. The certificate of survey was returned to the Land Office on the 8th of January, 1827, and on the same day the caution money was paid. On ihejirst day of November, 1826, Meshak Browning obtained from the Land Office, a special warrant for two hundred and ten acres of land, lying in Allegany county, in which warrant the description of the location of the land is expressed in these words : " On or near the head of the North Fork of the Little Crossings, and at the large spring, called Browning''s Spring, and also near a place called Patke's Pane, and near the foot of the Meadow Mountain." By virtue of this warrant the surveyor says, in his certificate, bearing date on the fifteenth day of the same month, that he had surveyed a tract to be held by the name of Browning's Hunting Ground, containing two hundred and ten acres, the loca- tion of which he thus describes : " Beginning in^the centre between two bounded sugar-trees near the head, and on the west side of the North Fork of the Little Crossings, and south twenty-six degrees and three-fourths of a degree, west al^out eight perches from the head of a large spring, called Browning'' s Spring, and south five degrees and one-half degree, east about eight and one-half perches from a large white-oak tree marked J. C, and running thence north sixty-three and one-fourth of a degree, east forty-five perches to a bounded hemlock tree standing at the Panthers' Pen, north sixty- nine degrees ;" and so on, describing a tract lying in the form of a narrow oblong ficjure, in about the middle of the one side of which are found the several marks which denote the place of beginning. This certificate was returned to the Land Office on the 23d of March, 1827, and on the same day the caution money was paid. On the third day of April following, a caveat was entered upon this certificate of Browning'' s by James Cunningham. An order was passed appointing a day for hearing, authorizing the parties to take testimony before any justice of the peace, on giving notice as usual, and directing the surveyor to lay dow'n and return a plot of the lands. Under this order a plot was accordingly returned, upon which the pretensions of both parties were laid down without any counter location from eitlier; from which it appears that Browning^s Hunting Ground extends entirely across Clieviot Dale. Some depositions were also taken and returned ; but, as they develope nothing of any importance, it is deemed unnecessary to state the facts proved by them. CUNNINGHAM v. BROWNING. 301 20//i Juney 1827. — Bland, Chancellor.- — This caveat standing ready for hearing, and the argument of the caveator's attorney having been heard, and the notes of Browning^s counsel having been read, the proceedings were thereupon read and considered. The Chancery Court of England has always been considered as the prototype of that of IMaiyland ; and, that the one has been in fact the exemplar of the other, in almost every respect, might be shewn by a comparison of the various offices, powers, and juris- dictions of each of them. The chancer}^ of Marjdand, as well as of England, was originally resorted to as an Officina Brevium. In cases of scire facias^ to repeal letters patent, and in some others, in which the Chancellor sits as a court of common law, his authority is substantially the same in Mar}land as in England. As mere courts of equity', there is scarcely any difference between the Court of Chancery of Mar^-land, and that of England. And the form of proceeding by caveat^ according to which the Chancellor is now called upon to act, is one which has been derived from the chancery of England ; and is regulated by forms and principles similar to those by which the English mode of proceeding by caveat is governed. It may be well, therefore, for the better under- standing of this, and all similar cases, briefly to review the mode of obtaining a patent grant for land in England, and in this State ; and^the general doctrine in relation to caveats^ before the merits of the case, now before the court, are taken up, considered and determined. The king of England being invested with a limited sovereignty over the realm, all public property belongs to him in that capacity; and all lands are said to be held directly or indirectly of him. The king is also invested with authority to create corporations, to grant franchises, and to dispose of any lands, or public property, at his pleasure. Anciently, a large proportion of the king's revenue arose from lands granted by him ; as to which the Chancellor and Trea- surer had checks upon one another. The Chancellor made out all patents for lands ; for, no real estate was to be parted with by the crown without the great seal; but then the rents of such tenures were to be accounted for before the Treasurer. (a) The granting of a franchise, or of any estate of inheritance in lands, could only be done by a regular patent under the great seal, specifying par- ticularly the franchise, or estate granted. But the same degree of (a) Gilb. Exch. 9, 10. 302 CUNNINGHAM v. BROWNING. solemnity and caution was not required in disposing of all other things ; for, the king might dispose of a chattel under his privy- seal ; or he might make a lease for years of any crown lands without a patent under the great seal. (6) But, after any land had been once legally granted by the king, it could, in no case, be fully and particularly revested in him, so as again to become the subject of a new patent to an individual, without office found, or something equivalent to an inquest of office ; for it is said to be a part of the liberty of England, that the king's officers should not enter upon other men's possessions, till a jury had found the king's title. Therefore, where the king's title appeared on record, his officers might enter without any office found ; as where the lands were held of the crown and the tenant died without heirs, the officers of the king might enter; because the tenure whereby the king's title appeared was upon record. So by the common law, where lands belong to nobody, the king's officers may enter ; because by the law, the land is in the crown ; for the law entitles him where the property is in no man ; but if any body else were in possession, the lands could not be divested without matter of record. There are two kinds of offices, one an office entitling J that vests the estate and possession of the land in the king where he had but a right or title before ; and another called an office of instruction, and that is when the estate of the land is lawfully in the king before, but the particularity of the land does not appear of record. And therefore, although, where the king is entitled by matter of record, there is no need of an office to entitle him ; yet there was always an office of instruction found, in order that the land might be distinctly ascertained and speci- fied ; for until that was done, although the title was in him, he was prohibited, by statute, (c) from making any grant of them to an individual. And therefore, in all cases, where it is proposed to place any lands, which had been held by an individual whose right had been confiscated or forfeited ; or whose estate was escheatable, because of its being such as he was incompetent to hold ; or whose title had escheated, because of his death intestate with- out heirs, it was deemed necessary to have the facts found by an inquest of office taken under a commission, or a writ of escheat, a diem clausit extremum, a mandamus, a melius inqui- rendo, or the like ; or by an inquest of office taken by the escheator {b) Gilb. For. Rom. 12.-(c) S H. 6, c. 16, and 18 H. 6, c. 6. CUNNINGHAM v. BROWNING. 303 in virtue of his office. ((i) But it not unfrequently happens, that the king's title to lands, which has thus accrued to him by confis- cation, forfeiture or escheat, remains wholly unknown to the public officers whose duty it is to have it distinctly and specially replaced in his hands by an inquest of office ; therefore, in such cases, where an individual by petition to the kingjirst makes known the fact, that there is such an interest ; and prays some reward upon the ground of discovery, if it can be made out ; the proper proceedings are thereupon instituted ; and if the escheat be established, the petitioner is usually rewarded with a lease of the property for his discovery. (e) Considering the numerous and various matters of public con- cern by which the attention of the king is presumed to be unceas- ingly engaged ; in order to prevent mistake, imposition and fraud, it is provided, that all his grants must pass through certain pre- liminary grades and forms. The proposed grant is by a warrant from the crown first put into the form of a bill by the attorney and solicitor general, which is then to be sealed with the privy signet by the principal secretary of state, and approved and signed by the king ; it is then carried to the keeper of the privy seal, who makes out a writ thereupon to the chancery, which, if no objec- tion be apparent, or then interposed, is a warrant to affix the great seal to the patent. Upon which it is enrolled, within the time limited by law, in the Petty Bag or the enrollment office, which appears to have originally constituted a part of the court itself, and which is, for all such purposes, a legal court of record. (y) But if before the great seal has been put to the patent the proposed grantee dies, the application so totally fails, that the whole pro- ceeding must be revived, or renewed by the heir or person who succeeds to the pretensions of the applicant. (o-) The object of all these several forms is, that the proposed grant may be narrowly inspected by all those officers whose duty it is to inform the king if there be any thing contained in it which is improper or unlawful to be granted ; indeed, it is said to be the duty of all the king's subjects to see, that he is fully informed as to such matters. (A) (d) Raysing's Case, Dyer, 208 ; Page's Case, 5 Co. 52 ; Doe Lessee of Hayne v Redfern, 12 East, 96 ; F. N. B. 566, 569 ; 4 Inst. 225 ; Gilb. Exch. 103, 109 ; 2 Blac Com. 244; 3 Blac. Com. 253 ; Shelf. Lun. & Idiots, 75.— (e) Moggridge v Thack well, 7 Ves. 71.— (/) "Vernon v. Benson, 9 Mod. 48 ; Ex parte Koops, 6 Ves. 599 Ex parte Beck, 1 Bro. C. C. 578 ; Attorney General v. Stewart, 2 Meriv. 153 1 Mad. Chan. 4.— (§•) 1 Boz. His. Mary. 258.— (A) Com. Dig. tit. Patent C. 5 & D ; Bac. Abr. tit. Prerogative F. ; 2 Inst. 555; Gilb. For. Rom. 12 ; The Case of Alton Woods, 1 Co. 52. 304 CUNNINGHAM v. BROWNING. But those officers whose duty it is, thus carefully to examine and consider the nature of the proposed grant, before they pass it, cannot be presumed to know any thing more of it than what appears upon its lace, or than what is represented to them by the applicant ; and yet there may be a variety of circumstances, not so apparent, or disclosed, which, if made known, would clearly demonstrate the great impropriety and injustice of passing it. Hence, in all such cases, where the interests of a third person are likely to be materially affected by the granting of a patent, its emanation may be opposed by such third person ; for, when the immediate possession of land is granted to two several persons, it begets suits and troubles, which the common law will not suffer in the king's grants under the great seal ;(i) and therefore, to prevent such mischief, it is said, that there are three several stages at which the making out of a patent may be opposed ; first, when it is under the consideration of the king ; secondly, when it comes to the. privy seal; and thirdly, hj a caveat vihen it comes to the great seal.(j) This last appears to be the most formal and usual course. In putting the great seal to a patent the Chancellor acts in his legal capacity; and therefore, in hearing and deciding upon any controversy which may arise, as to the propriety of passing a patent, he sits as a court of common law;(/c) and so long as an application thus stands before' the Chancellor for the great seal, he may indulge the parties with further time upon' such terms as he may deem equitable and proper ; but after the great seal has been once put to the patent, then all further control over it by the Chan- cellor in a summary way on a caveat ceases. (/) A caveat in chancery is a petition or suggestion entered by the party, who supposes himself likely to be injured by the granting of a patent, respectfully cautioning the Chancellor not to put the great seal to the instrument until the applicant has been called upon to make out a proper case for his patent; and, also to shew cause, if any he has, why the objections thus made to its being granted should not be allowed. Upon which a day is appointed for the hearing, of which the applicant is notified ; and in the interval the parties are allowed, if required, to take testimony in relation to any controverted facts. And at the hearing, the applicant for the patent, considered as a plaintiff, or as holding the afHrmative of the (i) The Case of Alton Woods, 1 Co. 50.— (y) 1 Mad. Chan. IS. 1 €hal. Opin. Em. Law, 55.— (A.) 3 Blac. Corn. 49.— {/) Ex parte Bock, 1 iiro. C. C. 57S ; Ex parte Koops, 6 Ve.s. 599. ' CUNNINGHAM v. BROWNING. 395 matter thus put in issue, is allowed to open and conclude the argu- ment. After which the Chancellor may overrule, or allow the objections ; from which there is no appeal : but no costs are given if the caveat be not unreasonable. (??i) If the objections are over- ruled the caveat is discharged, and the great seal is at once put to the instrument, and the grant is thus perfected and issued ; but if the Chancellor sustains the objections, he then withholds the great seal, and represents the whole matter to the king ; who may never- theless order a patent to be issued or not at his pleasure. (7^) The charter of Maryland gave to the lord proprietary an abso- lute right of soil to all the territory comprehended within its speci- fied boundaries ; and constituted him vice-roy over the province. Thus clothed with an unqualified title to all the lands, and a limited, yet large extent of sovereignty over the projected State, he commenced the settlement of the country in March 1634 ;(o) and, as might have been expected, from the nature of things, the par- celling out and sale of lands called for his earliest attention. It appears accordingly, that among the first things done by the pro- prietary, was to adjust and publish the terms upon which he pro- posed to dispose of his lands, and the manner in which an individual might obtain a legal title to any specified quantity he might want ; but of those terms, or conditions of plantation, it will here be unne- cessary to say any thing further, in regard to original grants from the proprietary, than that lands were given to emigrants as an encouragement to their coming into and settling the country ; or they were sold at a low, but stipulated price payable in money. But, large quantities of land, after having been thus alienated, were continually reverting to the proprietary, considering him merely as (wi) Ex parte Fox, 1 Ves. St Bea. 67. («) Leighton's Case, 2 Vern. 173; Ex parte O'Reily, 1 Ves.jun. 112; 1 Chal. Opiii. Em. Law, 152 ; Ex parte Beck, 1 Bro. C. C. 578 ; Slingsby's Case, 3 Swan. 178, note ; 1 Mad. Chan. IS ; 1 Hal. Con. Eng. 489, note ; 2 Virg. Stat. 523, 531, 537. The process of obtaining a patent for a new invention ; and the mode of prevent- ing the emanation of such a patent, in England, by a caveat, is substantially similar to that here described. Weslm. Rev. Jan. 1835, art. 12. It would Seem, that, under the colonial government as well as since the revolution, the exclusive right to a new invention could only be secured to the inventor by a special act of the legislature, I Virg. Stat. 374 ; 1784, ch. 20 ; 1786, ch. 23 ; Jpril 17S7, ch. 21, as the English sta- tute of monopolies, 21 Jac. 1, c. 3, did not extend to the colonies, 1 Chal. Opin. Em. Law, 202. But this matter now belongs to the government of the United States, and has been regulated by the acts of Congress of the 21st February, 1793, ch. 11, and 15th February, 1819, ch. 19. (0) 1 Boz. His. Mary. 274; Land Ho. Ass. 13, 64, 255; Cassell v. Carroll, II Wheat. 134, 170. 39 306 CUNNINGHAM v. BROWNING. one of the contracting parties ; because of the purchasers failing to comply with the conditions of plantation on their part; or the lands which had been so disposed of by the proprietary were returned to him by forfeiture or escheat. By several proclamations of the proprietary, the first of which was published in November 1725, it was made an express condi- tion of all future contracts between himself and the purchasers of his lands, that the purchaser should, after the survey, pay the whole purchase money and take out a patent within two years from the date of the warrant ; or, on his failing to do so, he should forfeit the imperfect title he had so acquired, if any one should thereafter discover the fact, and take out a warrant, and obtain a patent thereon for the same land ; who as a reward for his discoveiy was allowed a warrant on the payment, at the time, of one-tenth of the amount of the composition money then due, and the remaining nine-tenths on the returii of the certificate. (p) This may be regarded as a kind of escheat ; and the power of the pro- prietary, in such cases, to make a new disposition of the land as being thus, according to the terms of the contract, restored to him by operation of law without any inquest of office whatever ; for the contract between the proprietary and the then immediate purchaser and holder, being upon record, was considered as equivalent to an inquest of office. (5-) But where, after the whole legal estate in fee simple had passed out of the proprietaiy, the individual owner had, by being con- victed of a crime, forfeited his estate ; or where the lands which had been so granted had, by the death of the owner intestate and without heirs, escheated, it seems to have been deemed necessary, during the earlier periods of the proprietary government, here, as in England, to have the fact of such title and of the nature and extent of the lands ascertained by an inquest of office before the same lands could be again disposed of by the proprietary. The first settlers being, for the most part, poor adventurers, it often happened, that they died intestate without leaving any /mown heirs ; and, therefore it was, that, for many years after the setUe- ment of the country, cases of escheat for want of heirs were so very frequent. (?•) The inquests in all such cases, although there was at one time an escheator,(s) were ordered to be taken here, as (p) Land Ho. Ass. 319, 462, 469 ; 1795, ch. 8S, s. 10.— (9) Land Ho. Ass. 1S6 ; Gilb. Exch. 89 ; 1 Chal. Opin. Em. Law, 150.— (r) Land Ho. Ass. 154, 245.— (c) Land Ho. Ass. 224. CUNNINGHAM r. BROWNING. 3Q-7 in England, -by a writ of mandamus, or a diaii clausit extremum directed to the sheriff of the county in which the lands lay ; upon the return of which, as a reward to the discoverer, at whose instance the mandamus had been issued, he was allowed to have the pre-emption of the land so escheated at two-thirds of its value, or that it should be sold, and one-third of the proceeds of sale paid to him.(i) But, in that interval of time, between the years 1692 and 1715, when the government of the province was taken into the hands of the king, although the proprietary's right of soil was admitted, it was yet found difficult, or impracticable to have any such inquests of office executed for his benefit, and as a safeguard to the rio-hts of the citizen ; and therefore, during that time, his agents issued warrants, and made out grants for all escheated lands without any previous inquest. After the government was restored to the lord proprietary, the granting of escheated lands without any previous inquest of office was still continued •,{u) and this practice having been followed up in the same way ever since, under the State government, the holding of an inquest of office in any such case must now be con- sidered as having been thus virtually abolished. (z^) He who disco- vers the escheat and sues out an escheat warrant, is entitled, as formerly, to have a patent for the land on paying two-thirds of its value ; which value, instead of being ascertained, as formerly, by inquest, is now estimated and returned by the surveyor under his oath of office. (t/;) It has been laid down since the revolution, that the State, as to the lands of the proprietary, stands in his place; and that they remained subject to all claims and rights created and acquired under the proprietary ;(j:) and further, that by the acts of confiscation, passed during the revolutionary war, all British pro- perty was seized and vested in the State without office found, (y) What is here said, in regard to inquests of office, must how- ever be understood as applying only to cases where the lands of a citizen have escheated on his death intestate without heirs ; for (0 Land Ho. Ass. 102, 114, 174, 194, 261, 233, 319; Lord Prorietary v. Jenings, 1 H. ^ McH. 119 ; Kilt. Rep. 14 Ed. 3, c. 8, & 8 H. 6, c. 16 ; Land Records, lib. C B. 13, &c. ; Chan. Pro. lib. C. D., 78 ; lib. P. L. fol. 90 ; lib. J. R. fol. 242, kc (j<) Greaves v. Dempsy, 1 H. &, McH. 65 ; Lord Proprietary v. Jenings, 1 H. &, McH 119, 138 ; Thomas v. Wootton, 4 H. & McH. 428.— (r) Land Ho. Ass. 160, 162, 176 Owings V. Norwood, 2 H. & J. 96.— (?«) Land Ho. Ass. 319, 435, 438 ; 1800, ch. 70 (x) Land Ho. Ass. 300 ; Ringgold v. Malott, 1 H. & J. 317.— (y) Land Ho. Ass 301, 332 ; Ringgold v. Malott, 1 H. Sc J. 317 ; Owings r. Norwood, 2 H. & J. 96 ; Hall V. Gittings, 2 H. &. J. 112. 308 - CUNNINGHAM f. BROWNING. as to an alien, it has been held, that his title, which he has acquired by purchase, is good against every body but the State, and cannot be divested without office found ;(z) although it would seem, that, as regards the interests of creditors, it may be consid- ered as having devolved upon the State without any previous inquest of office, (a) It is now unnecessary to say any thing of forfeited lands, of which it w'as formerly made the duty of sur- veyors to give notice, (6) since it has been declared, that no con- viction or attainder shall work corrujotion of blood or forfeiture of estate. (c) In the original conditions of plantation, it was declared, that a legal title should be made to all purchasers from the proprietary by a grant under the Great Seal of the Province ;{d) thus indicating at once, and from the outset, to all purchasers, that there should be a Chancellor, or keeper of the Great Seal of the Province ; whose duty it should be here, as wms the duty of the similar officer in England, to pass upon and authenticate all patent grants for lands. (c) But although by a commission, dated on the 1 5th of April, 1637, the first governor was constituted " chancellor, chief justice, and chief magistrate Vv^ithin the province, until officers and ministers of justice should be appointed ;"(/") yet grants for lands to the first settlers were issued and authenticated under the hand and seal of the governor alone ; and it was not until about the year 1644, that patent grants w'ere authenticated by the Chancellor under the Great Seal of the Province, according to the English mode of making out such deeds, (o-) From that time, however, to the present, patent grants have been made out and authenticated according to the form now in use. The increase in population, and the spreading out of the settle- ment of the country, so multiplied the demands for the proprietary's lands, that in the year 16S0, for the greater regularity and despatch of business in that respect, a Land Office w^is established ; in which it w^as directed, that authentic records of all proceedings in relation to the sale and granting of lands should be made and kept,(/i) ■certified copies of w^hich, as of any other records, are held to be legal evidence, (i) This office was appended to the common law (2) McCieery v. AUender, 4 H. & McH. 409 ; McCreery v. Wilson, 4 H. &. McH. 412 ; Fairfax v. Hunter, 7 Cran. 619.— (a) 1799, cli. 79, s. 7.— (6) Land Ho. Ass. 439.— (c) Dccl. Riu:hts, art. 24; 1809, ch. 133, .s. 10.— (d) Land Ho. Ass. 30, 39. (c) Land Ho. Ass. 64.— (/) 1 Boz. His. Mary. 292; Land Ho. Ass. 64.— (g) Land Records, lib. No. 1, folio 195.— (A) Land Ho. Ass. 103, 232, 283.— (i) Thornton v. Edwards, 1 H. k McH. 153. CUNNINGHAM v. BROWNING. - -^ 309 side of the Court of Chancery of Maryland, and was evidently considered as corresponding, in almost all respects, to the Petty Bag, or enrollment office of the English Court of Chancery. For, in all the proceedings in chancery, in relation to the repeal of letters patent for land by scire facias, and to the business and records of the Land Office, the court is always specially designated as "T/iC Chancery Court of Records ;^\j) for the express purpose, as it appears, of distinguishing its common law jurisdiction, in relation to patent grants for lands, in which respect it was, by analogy to the English system, deemed a court of record, from its jurisdiction as a mere court of equity, in which capacity, according to the English law, it was not a court of record, (i't:) The expres- sion, " the Chancery Court of Records," answered veiy well at the time, and may still serve, with a recollection of the English law to which it refers, as a sufficiently apt and clear designation of the distinction between the two sides of the Court of Chancery, between the two capacities of common law and equity in which it acts ; but at present, the Court of Chancery of Marj-land must be considered as in all respects a court of record ; since all its proceedings, as well in equity as at common law, are recorded ; and it has all the powers incident to the jurisdiction of such courts of record. The lord proprietary's lands always yielded him a very large proportion, and sometimes the only revenue he derived from his Province ; and therefore here, as in England, the mode of obtaining titles to lands seems to have been regulated, as well with a view to the safe collection of this branch of the revenue, as to the assuring of justice and fairness to the contracting parties. Before the establishment of the Land Office, here, as in England, the applicant for a patent commenced by obtaining a warrant from the sovereign, under his seal at arms, or tlie Lesser Seal of the Province ;(/) by which, on the purchase money being paid to the treasurer,(7?i) the surveyor was authorized to lay out the land as required ;(w) and upon a certificate of the survey being returned to the, Chancery Office, the secretary, who was then the recording officer of the Court of Chancery,(o) if he approved of the proceedings, made out the patent grant, (;;) which was to be finally passed upon and authenticated by the Chancellor. ((7) (j) Land Ho. Ass. 114, 122, 178, ISl. —(/.•) Com. Die;, tit. Chancery C. 1 & 2; 2 Mad. Chan. 712.— (/) Land Ho. Ass. 43, 65, 76, 9S.— (?«,) Land Ho. Ass. .54, 56, 62, 128.— (71) Land Ho. Ass. 75.— (0) Land Ho. Ass. 43, 65.— (;j) Land Ho. Ass. 41, 66, 82.— (j) Land Ho. Assrl26. 310 CUNNINGHAM v. BROWNING. It must be recollected, however, that the lord proprietary, like the king of England, had the power, and actually did make a multitude of leases for years of his lands, without the solemnity of a patent grant under the great seal. These leases w'ere rarely or never at any time signed or sealed by the Chancellor, nor could he in any way check or control the making of them, as he might the passing of a patent grant for an estate of inheritance when it came for the great seal, if a caveat should be then filed ; and therefore it need only to be observed here, that none of the proceedings which may be met with in our records, in regard to those pro- prietary leases, can have any relation to the matter now under consideration, (r) But after the establishment of the Land Office, the mode of proceeding to obtain a legal estate of inheritance in lands, from the proprietary, was somewhat differently, and much better regulated. The Constitution of the Republic directed that there should be two registers of the Land Office appointed, one for the Western, and the other for the Eastern Shore. (s) And these Land Offices were organized accordingly by a re-establishment of the connexion which- had formerly subsisted between the Court of Chancery and the Land Office, and an adoption of all the regulations and the law by which that office had been formerly governed, in so far as they were consistent v.'ith the new frame of government. (^) There were under the proprietary's government, and still are, five different modes of beginning to obtain a title to lands ; or, in other words, five several kinds of warrants, all of which are now issued by the register under his signature and the seal of his office,(zi) by which an applicant may obtain a patent for the land he proposes to purchase. If it be his object, in general, to obtain a certain quantity of vacant land, any where, without regard to any particular space, or tract, then, on paying one-half of the stipulated price to the treasurer, he gets from him a titling ;(ii) upon which the register of the Land Office gives him a common warrant, directed to the surveyor, commanding him to lay out the specified quantity of land as required. But if required by the applicant, on presenting his titling, the register will insert a particular description of the land aimed at in the warrant itself; which specification gives to it the denomination of a special warrayit ;{w) or the register may, with- er) Land Ho. Ass. 219.— (s) Constitution, art. 51.— (<) Land Ho. Ass. 300, 305, 307; November, 1781, ch. 20, s. 12.— (m) Land Ho. Ass. 466.— (y) Land Ho. Ass. 232, 261, 275, 2S2.— (u;) Land Ho. Ass. 318, 367, 470, CUNNINGHAM r. BROWNING. 3X1 out any such titling, issue a common or a special loarrant, for vacant land, in lieu of warrant remaining unexecuted in whole or in part ; or in lieu of deficiency found, on resurvey, in original tracts, and for composition paid in cases in which the certificate, or grant shall afterwards have been vacated ; or where certificates ordered for correction become void by not being afterwards returned within the lime prescribed by law.(x) Or if the applicant, after having thus obtained a common vjarrant^ causes a particular descrip- tion of the land he wishes to obtain to be noted on the sur- veyor's book, it has, from the date of such entry, all the effect of a special warrant. {y) But, if the applicant had already obtained a title to a tract of land, by having had it surveyed, and a certificate returned, or by having obtained a patent for it, and only wished to add to it some contiguous vacancy, he may obtain at once from the register of the Land Office, a warrant of resurvey^ directed, in like manner, to the surveyor. (z) So if any one had caused a parti- cular tract of land to be surveyed, but had failed to comply with the conditions of plantation, and formerly, to take out a patent, or now to compound on the certificate, within the one year, as for- merly limited by the proclamation, and now by the law, (a) any one else, by an application to the register of the Land Office, and paying to the treasurer one-tenth of the composition then remain- ing due,(&) may obtain from the register a proclamation warrant authorizing the applicant to take up the same lands, (c) But when, by reason of the sickness or death of the examiner-general, warrants could not be examined and returned in time, the Chancellor has, by a general order, suspended, for a time, the right to take out pro- clamation warrants. ((^) And finally, any one by an application, setting forth that a certain designated tract of land had actually escheated by the death of the last individual owner intestate and without heirs, may obtain immediately from the register of the Land Ofhce, an esclieat warrant authorizing^ the applicant to obtain a patent for the land so specified. (e) After the applicant has procured any one of these five kinds of warrants, his next step is to have the land surveyed in the man- ner prescribed by the rules and orders laid down for the direc- (x) Land Ho. Ass. 322; Steuart r. Mason, 3 H. & J. 507.— (j/) Land Ho. Ass. 2S5,435.— (^) Land Ho. Ass. 1-J9,322.— (a) November, 1781, ch. 20, s. 6.—(b} Land Ho. Ass. 469.— (c) Land Ho. Ass. 186,359.— (rf) Per Kilty, Chancellor, 26th April, 1815, and per Bland, Chancellor, 6th June, 1834; Land Ho. Ass. 443. — (c) Land Ho. Ass. 173, 362, 470 ; Hall v. Gittings, 2 H. & J. 12a. 312 CUNNINGHAM v. BROWNING. tioii of surveyors ;{/) a certificate of which was formerly returned to the Land Office, but now to the examiner-general, (o-) to be by him critically reviewed ; and if upon such examination, it is found to be erroneous, it is sent back to the surveyor for correction ; after which it must be lodged in the £and Office within ejofhteen months from the date of the warrant on which it was made, or it will be deemed void;(A) and if ordered by the Chan- cellor to be corrected, it must be returned, together with the erro- neous certificate, within nine months from the date of the order, otherwise it can never be received, (i) If the certificate is approved by the examiner-general, it is then taken to the treasurer, who, upon payment of the whole amount of the purchase money, endorses upon it a receipt, specifying that it has been fully compounded on ;(j) after which the certificate is received into the Land Office, and the day of its being so returned endorsed thereon as being then ready for a patent, if not opposed by a caveat. [k) The dealing out of the vacant lands, which had never before been held in separate parcels, not merely as in England, at the time of the Norman conquest, or as after a rebellion in Ireland, among a few of the monarch's favourites ;(/) but of the whole territory of the State, to an entirely new set of emigrants, who undertook to reduce the wilderness to cultivation, was then a proceeding of the most novel and interesting character. (??i) The mode of granting lands by the king naturally suggested itself to the viceroy of Maryland as the best ; and, as has been shewn, was accordingly as closely followed as the nature of things Avould permit. But when the Land Office was established, the business of disposing of the vacant lands had become, and was then rapidly swelling to a magnitude, that engrossed a large share of the attention of the government. - It was only by means of this department of the Chancery, called the Land Office, that a large proportion of the revenue derived from the sale of vacant, confiscated, or escheated lands, could for- merly, or can now be ascertained ; and consequeptly in that point of view, it must have been formerly regarded as a very important revenue office, (71) as it continues even yet to be productive. But contemplated in another point of view, it is evident, that it must (/) Land Ho. Ass. 62, 65, 435.— (g) 1795, ch. 8S, s. l.—{h) Land Ho. Ass. 273, 325, 466.— (i) Land Ho. Ass. 466.— C^") Land Ho. Ass. 256, 260, 261, 275, 319, 322. (/c) November, 17S1, ch. 20, s. 3 & 6; Dlgges v. Beale, 1 H. & McH. 67 ; Lord Proprietary v. Jenings, 1 H. &. McH. 140.— (0 Godw. Com. Eng. b. 4, c. 27. (m) Land Ho. Ass. 299.— (») Land Ho. Ass. 302. CUNNINGHAM v. BROWNING. 313 be considered as the fountain and depository of the primitive muni- ments of title to all the landed properly in the State ;(o) in which respect, the surveys returned to, and the patents recorded in it, together constitute a domesday book, in which a more accurate description of all the lands of this State is to be found, than of the lands in the records of any other country whatever, (yj) Hence, instead of committing the affairs of this vastly important oflfice, in the absence of the lord proprietary, to the care of a mere ministerial officer, called " The Clerk and Register of the Land Office," a council for lands was established, (1684,) to whom was assigned the duty of supervising the Land Office, and of determin- ing upon all matters relating to land which might be brought before them, " by any of the inhabitants suing for acts of grace and favour therein ;" according to a set of instructions specially describing their powers and duties; (5') which powers and duties were, some years after, confided to a single person specially com- missioned (1695,) for that purpose, (r) After which, by an order of the lord proprietary, (1721,) reciting, that the power of granting warrants for taking up waste, cultivated and uncultivated, and surplus land, and the finishing such warrants by making the grantees an estate of fee simple, had then chiefly centred in the deputy secretary ; and that the hearing and determining differences arising between contending parties in land affairs, which had usually been heard and determined in the Land Office, must naturally fall under his cognizance ; he was empowered to judge and determine in those affairs, " as fur as he legally might, according to right, reason, and good conscience. "(s) More than ten years after which, by a special and distinct commission, one person was appointed (1732,) to be judge and register of the Land Office, wdth full power and authority to act, hear, judge, and determine in land affairs, according to right, reason, and good conscience, and the several instructions and orders which should from time to time, be given to him by the proprietary. (^) Accordingly, in the instruc- tions soon after sent to the Chancellor, as well as in those given to the judge and register of the Land Oflice, it was expressly declared, that he should be assisted in his determinations by the Chancel- lor, (u) And it moreover appears, that there was, for some time, an appeal allowed, during the provincial government, from the judge (0) Cockey i-. Smith, 3 H. & J. 26.— (p) Land Ho. Ass. 300.— (9) Land Ho. Asa lOS, 112.— (r) Land Ho. Ass. 127.— (s) Land Ho. Ass. 227.— (<) Land Ho. Ass. 231, 260, 268, 269.— («> Land Ho. Ass. 232, 23-1. 40 314 CUNNINGHAM v. BROWNING. of the Land Office to the Board of Revenue, and at other times, as to some matters, to the Chancellor, (y) After a certificate was returned to the Land Office, it was formerly, as now, necessary that it should remain' there six months to afford an opportunity to any one concerned to enter a caveat against the emanation of a patent. (?«) But apart from, and in addition to the reo-ular proceeding by caveat before the Chancellor, which it appears always might have been instituted, as at present, in any case where there was a proper ground for it, there were a variety of other causes of applications for relief, where nothing like a judicial con- troversy had been, or perhaps could be instituted or brought before a court of justice in any form whatever. If, after the lapse of the limited period no caveat is entered, and the register finds the certificate, and all other proceedings to be correct, he prepares a patent which is signed, sealed and issued as of course, (a:) If the certificate, after having been returned to the office, has been assigned ; or the holder of it has died, it is not necessary, as in England, to renew the whole proceedings ; but it is sufficient to state the facts to the judge of the Land Office in a petition, accom- panied by suitable vouchers, such as the written assignment itself, the will of the deceased, an affidavit of some disinterested person stating who were his heirs or devisees, &c., upon which a patent is ordered to be issued to the assignee, devisee, or heir ; or, in doubtful cases, to one to hold according to his interest, to the uses of a will or the like. If the certificate or other proceedings are obviously erroneous in some immaterial particular, it may be cor- rected, on a petition setting forth the errors. (y) As to these and all such anomalous cases, which were much more common before the revolution than at present, the application was made to the lord proprietary in person, (c) or to his council for lands, or to his judge of the Land Office ; and it was considered not as the commencement of a judicial proceeding of any kind, but as " suing for acts of grace and favour.'''' As to all which matters the judges of the Land Office were in fact, but executive officers charged with the special direction, in peculiar and anoma- lous cases, of an establishment of great importance to the lord pro- (u) Land Ho. Ass. 262, 273, 283 ; Chancellor's Case, post, note r.—{w) Land Ho. Ass. 27S, 492 ; April 1782, ch. 38, s. 2.—{x) Land Ho. Ass. 492.— (y) Land Ho. Ass. 323, 434, 493, 494 ; Lloyd v. Tilijhman, 1 H. &, McH. 86 ; Lord Proprietary, 1 H. k McH. 135 ; Joice v. Harris, 1 H. ik. McH. 196 ; Hall v. Gittings, 2 H. 8c J- 112.— (;) Land Records, lib. C.B. 143, &.c. CUNNINGHAM v. BROWNING. 31 5 prietary. The power to grant acts of grace and favour, which, under the proprietary- government, had been thus confided first to a council for lands, and then to judges of the Land Office, was, after the revolution, recognised as having devolved upon the Chancel- lor; and it has accordingly been always so exercised by him; but, it is merely a power to revise certain proceedings in respect to the sale of public lands, and to correct immaterial errors in cases, which involved none of that judicial power proper and necessary for the management and determination of controversies between two or more citizens, such as that which was then, and is now exercised by the Chancellor in determining on a caveat case. (a) A caveat, in the Land Office, is a w'arning to the Chancellor not to put the great seal to a patent for a certain tract of land as prayed by the holder of the certificate of the survey. As all that relates to patents for land belongs properly to the common law side of the Court of Chancery, here as well as in England, it necessarily follows, that a caveat must be the commencement of a judicial proceeding on the same side of the court with that to which it is opposed ; and consequently, as to all controversies brought before the Chancellor, by caveat, he holds a common law court of record ; or as it was formerly said, the proceedings are in " the Chancery Court of Records," not in a mere court of equity. (6) And considering it as a court of record, it has, like all courts of common law or of equity of that description, the power to regulate its own practice and proceedings ; which regulations become the law of the court, and of the case also, so far as they apply. (c) And as a grant for land can only be obtained through the Land Office, in which all the preliminary preparations for it are deposited, it follows, that a caveat can only be presented to the Chancellor in that office ; and, in general, after the proceedings have beeii so far matured as to be ready to have the great seal put to the grant. ((/) A caveat is most usually entered bj- a simple endorsement of the word " cavcaV upon the certificate, if there be one returned to the office ; or otherwise by a note on the record opposite to the warrant, without any specification whatever of the cause o{ caveat ;{e) but it can only be entered by the interested party himself, or by the direction in writing of his attorney. (y*) And when entered, it cannot be permitted to continue longer than (a) Land Ho. Ass. 273, 434 ; November, 1781, ch. 20.— (6) Land Ho. Ass. 331, 465.— (c) Land Ho. Ass 434, 442, 461.— (rf) Land Ho. Ass. 467.— (e) Land Ho. Ass. 321, 379, 487.— (/) Land Ho. Ass. 442, 443, 487, 491. 31G CUNNINGHAM v. BROWNING, twelve months, unless under special circurastanGes. A caveat by- two or more does not abate by the death of one of them, as it does where it has been entered by one only.(g-) The grounds upon which a caveat may be entered are various ; in general they must be such as shew, that no grant ought to be issued ; because to do so would be unjust to the public, or to some individual ;(/i) or because the applicant had, in some w^ay, failed (g-) Land Ho. Ass. 2S3, 442, 443, 490 ; 1797, ch. 114, s. 10. (A) Land Ho. Ass. 90, 91, 304, 449, 453, 491. RiDGELY j;. Johnson. — 24//j November, 1801. — Hanson, Chancellor. — The Chan- cellor having examined all the depositions in this cause, produced to support the alle2;ations of the parties, together with the plot returned for illustration ; and having considered also the arguments of the counsel on each side, and having deliberated thereon, is of opinion as follows : — He must first make some preliminary remarks. — When a man cnvcaix a certificate, on the ground that the land, surveyed as vacancy, is comprehended in his patent; unless the Chancellor is thoroughly satisfied, that the fact is so, it is the invariable practice to dismiss the caveat, suffer a patent to be issued on the certificate, and leave the parties to contend at law, before a court and jurj'. And for this plain reasoh, that a dismission puts an end to the pretensions on one side, but leaves the other party, viz. the caveator, in a condition so to contend. Besides, the State is interested. If the caveat be allowed, it may be, that the State thereby loses the benefit of granting vacant land. But independently of the claim or pretensions of a caveator, or caveators, it is clear that, if in any case it appears, that the land comprehended in a survey is not properly grantable, no patent ought to issue for the same. That this position is just, appears from the decree of Chancellor Rogers, who in the year 1786, vacated a patent, on the ground that the land therein contained was not grantable. For surely, if a patent be repealed, or vacated on that ground, it must be supposed, that a patent would not have issued, if the ground had been known, before the patent was granted. That the law respecting accretion, alluvion, and islands, in small waters or rivers, is part of the law of Maryland, as well as of the law of England, and indeed as of the law of nature, the Chancellor, on reflection, entertains not a doubt ; and in his conception, it is of no consequence, whether the persons, having lands on such waters, acquired their title before, or after the islands, opposite to their lands, were formed. They had, at any rate, a common right to the river ; and, of course, either one, or all of them, has a right to the benefit of an island formed in the river. And even, if they have not an exclusive right to the benefit of such islands, it seems, at least, that all those, having lands in the river, or the inhabitants in general of the State, must have tliat right. In this State, it may be said, that a man can claim nothing, except what is contained, or described in his patent. But the right of following the water, or having the benefit of accretion, has been admitted ; and mighty inconvenience would result if it were not so settled. And the common right of those iiaving land on small waters to the little islands, which are formed after their titles acquired, seems at least as reasonable, as the right of accretion. But the principle of the case decided by Mr. Rogers applies to the present case. In short, it appears to the Chancellor, that a patent cannot possibly, vtith propriety, issue to the dpfendant in this cause ; although what person, or persons, or whether any person may be exclusively entitled to the flat, island, or marsh, surveyed by the defendant, may hereafter be a subject of litigation. CUNNINGHAM v. BROWNING. 3I7 to comply with the conditions of plantation ;{i) as where, under a warrant of resurvey, two or more distinct tracts, not contiguous by means of vacancy or otherwise, were attempted to be included in one patent, (J) or where the special warrant contained more than one location ;(/i) or because the facts and circumstances set forth in the proceedings were, in some material particular, irregular, or untrue ; as that the survey had not been made according to the rules of the Land Office ; or, as in case of an alleged escheat, that the late owner had not died intestate and without heirs as averred by the applicant, (/) or if thp lands are actually escheatable, that the per- Upon the whole, it is adjuged, ordered, and decreed, that the caveat of the said Charles Ridgely against Horatio Johnson's certificate of a tract of land, called Johnson's Meadows, be, and it is hereby declared to be, allowed, and ruled good. (i) Land Ho. Ass. 327, 45.3 ; 179.5, ch. 88, s. 11 ; Lloyd v. Tilghman, 1 H. & McH. 86 ; Hammond v. Ridgely, 5 H. St J. 263. (j) Land Ho. Ass. 390, 421, 422, 447; West v. Hughes, 1 H. 8c J. 11 8c 13. (k) Land Ho. Ass. 444. (Z) Land Ho. Ass. .381. AisQuiTH V. GoDMAK. — It appears from the statement of facts agreed on by the parties, that of lot No. 40, in the city of Baltimore, a certain William Nicholson was seized in fee simple on the 20th of June, 1761 ; and, being so seized, he made his will, and thereby devised it to his niece Elizabeth Connell, in fee tail general, remainder to his brother John Nicholson, of the county of Cumberland, in England, and his heirs ; which said John Nicholson never was a citizen of the State of Main- land ; — That William Aisquith, the caveator, intermarried with Elizabeth Connell, the devisee, by whom he had issue a son, John Aisquith ; — that Elizabeth Aisquith died on the first of January, 1782, leaving her husband, the present caveator, in possession of the lot, and their only child, John Aisquith, who died intestate and "without issue on the 1st of July, 1785. It is further stated, that the caveator took out a warrant of escheat on the 15th of October, 1785, to affect said lot, and returned a certificate thereof, but did not compound thereon ; and the caveatee, Samuel Godman, on the 3d of June, 1795, proclamated the said certificate, and returned his certificate thereof to the office on the 29th of May, 1797; on which the said Aisquith entered a caveat against a patent issuing thereon ; alleging, that by the laws of this countrj% the said lot is not liable to be affected by an escheat warrant, and is not escheatable. 24/A May, 1798. — Haxson, Chancellor. — The said caveat being submitted to the Chancellor, on a statement of facts, signed by the counsel on each side, the said statement, and the certificate, and all other papers thereto relative, were by the Chancellor read and considered. It appears to him, that the facts contained in that statement are conclusive for the caveator. It is stated, that Elizabeth, the wife of the caveator, beins: tenant in tail of the land in question, died in 1782, leaving one child only, a son, who died without issue in 1785 ; that after her death a warrant of escheat was taken out by the caveator, who returned a certificate ; and that, on his failing to compound, the defendant took out a warrant of proclamation, and returned the certificate which is caveated. There is no rule in this office better established than this, — that the validity of a proclamation warrant must depend on the warrant, under which the land intended to 318 CUNNINGHAM v. BROWNING. son who died seized was indebted to the caveator, and others who w^ere entitled to have the lands sold, and the proceeds applied in be affected by the proclamation warrant, was survej-ed. In the present case, it is clear, from the statement, that the escheat warrant, under which the survey, procla- mated by the defendant, was made, was invalid. The act of November, 1781, ch.20, sec. 8, expressly says, that no escheat warrant shall be good, unless the owner (that is, the person on whose death it issued) hath died seized in fee simple. But here the warrant recites the dying seized of the aforesaid Elizabeth Aisquith as the giound of the escheat ; and it appears from the defendant's own shewing, that she did not die seized in fee simple ; but that the land descended from her to her son, as issue in tail, and no attempt is made to show, that the land was otherwise liable to escheat. The admission of the parties, which is at least equal to the result of a trial at law, has precluded a point, which might perhaps have been otherwise made. Upon the whole, it is adjudged, and ordered, that the caveat of William Aisquith against Samuel Godman's certificate of lot No. 40, in the city of Baltimore, be, and it is hereby declared to be good, but that each party shall bear his own costs. Hammond, in behalf of the Baltimore Company t>. Godmak. — 2Sth Decem- ber, 1799. — Hanson, Chancellor. — The caveator having taken out a subpcena from chancer}', for the defendant to appear here on this day, to answer the said caveat ; and the defendant appearing, as he alleges, in consequence of the service on him of the said subpcena, which is by him produced, there was presented to the Chancellor in behalf of the said caveator, and as the siipport of his caveat, a deed from Daniel Nicholson, for conveying to the company aforesaid the land in question. In the said deed, Daniel Nicholson is recited to be the heir of John Nicholson, the patentee of the said land, on whose supposed dying seized without heirs, the escheat warrant in this case was obtained by the defendant. No proof, except the said recital (which cannot operate otherwise than against the grantor, and those claiming under him,) is offered, to prove that the said land actually descended from the patentee to tlie said Daniel Nicholson, or that the said patentee ever conveyed or devised the said land to any person whatever, or that the said patentee has left any person capable of taking as his heir. On a certificate, returned to this office, in consequence of an escheat warrant, it is the settled rule and practice, founded on the plain principle of benefit and convenience to the State, and on common sense, that the caveator of the certificate shall shew a title in himself, or in some other person. If he cannot do this, why should not the person, who applies for the land as escheat, and is willing to pay the State accord- ingly, be allowed to take a patent. The State assuredly is interested in, or at least cannot suffer from permitting him to take it as escheat, on the prescribed terms. He alone incurs a risk ; and the patent, which he obtains, is not to invalidate, or affect, the right of any other person. The patent puts him in a condition fairly to contest the question with any person, who claims the land, under a superior title ; and it is certainly nothing more than right, that the title be fairly tried in ejectment. Whatever title the aforesaid company has in the land, it will not be affected by a patent to the defendant. The Chancellor makes these remarks, because he conceives it probable, that the practice and rules of this office may not be generally understood. Om the whole, it is adjudged and ordered,that the caveat of William Hammond against Samuel Godman's certificate of a tract of land, called Nicholson's Delight Rectified, be, and it is hereby declared to be, dismissed ; and that the said caveator pay to the de- fendant, Samuel Godman, all costs, by him incurred in defence of the caveat aforesaid. CUNNINGHAM v. BROWNING. ojg satisfaction of their claims. (m) But the most common ground of caveat is, that the lands specified in the certificate on which the patent is asked, are not vacant ; but are, in whole or in part, included in an elder warrant, entry, survey, or patent. (/«) And, wherever the same land is contained in the certificates of both par- ties to a caveat, it is considered, that each of the parties has caveated his antagonist, (o) The method of bringing a controversy, instituted by a caveat, to a hearing appears to have been taken from that pursued in England ; and was always, from a very early period of the provincial govern- ment, essentially the same as at present, (p) On a caveat being entered, both parties may be considered as actors ; for, if called for, by either party, an order may be pjjissed appointing a day for hearing ; but no caveat can be dismissed without hearing, or giving the parties an opportunity of being heard. (9) After a party has thus obtained an order appointing a day for hearing, a suhpcena is issued from the chancery- office under the great seal, as formerly, to summon the opposite party to appear before the Chancellor to maintain, or to answer the caveat. And suhpcenas may, in like manner, be issued to summon witnesses to testify, (r) If required, the parties may, by the same or a separate order, obtain authority to take the depositions of witnesses before any justice of the peace on giving notice as usual, and also, a direction to the surveyor of the county, or some other impartial person to survey the lands, and lay down the conflicting pretensions of the parties ; and the sur- veyor may summon witnesses to give evidence on the survey. (s) Upon the return of all which, on the day appointed, the arguments of the parties are received by themselves, or their attorneys either orally or in writing ; unless before, or on that day, further time be allowed for the hearing, of which the party obtaining the order must give his antagonist notice. (<) The applicant for the patent must make out his case by shewing himself entitled to a patent for the tract of land he has caused to be designated in his warrant, his entry on the surveyor's book, or by his certificate ; and thus, in general, holding the affirmative, he opens and concludes the argument. (?/,) After which the case is (wi) 1783, ch. 78.— (n) Land Ho. Ass. 83; West i-. Hughes, 1 H. &, J. 9. (0) West V. Hughes, 1 H. &, J. 10.— (p) Land Ho. Ass. 73, 83.— (g) Ganetson v. Cole, 1 H. & J. 374 ; April 1782, ch. 38, s. 8.— (r) Land Ho. Ass. 331, 488 \ April 1782, ch. 38, s. ll.--(s) Land Ho. Ass. 426, 4S8 ; 1789, ch. 35, s. 6.— (/) Land Ho. Ass. 489.— (m) Land Ho, Ass. 453. 320 CUNNINGHAM v. BROWXIXG. decided by the Chancellor according to right, to reason, and to good conscience ; or in other words, according to the rules of the Land Office, and the whole law properly applicable to the case :(v) or he may decree thereon 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. (t^) If the certificate be incorrect the Chancellor may, at the instance of the party, order the survey to be corrected in such manner as he shall direct, (a:) In some cases, if the certificate be vacated, he may order other warrant to be issued to the party to the amount of the vacated certificate on which the composition had been paid ^(y) and, as in chancery, he may award costs and enforce the payment of them to the prevailing party, (r) It is said, there are some instances to be found, within the early periods of the provincial government, in which controversies instituted by caveat have been tried in the courts of common law. (a) In proceeding by scire facias in Chancery to repeal letters patent, where an issue of fact is joined between the parties, as the Chancellor cannot call a juiy before him, the case is sent to a court of common law for the purpose of obtaining the verdict of a juiy upon it. (6) And so, in the instances alluded to, it might formerly have been the practice here in cases of caveat, as on a scire facias^ to have the facts found by a jury convened in a court of common law. But however that may have been, it is certain, that no such practice appears to have ever prevailed in England, and that here, all caveat cases are now exclusively and finally determined by the Chancellor, from whose decision there never was, nor is at the pre- sent time any appeal allowed. (c) But, although there be no appeal properly so called ; yet the party, if refused a patent, might have obtained redress from the sovereign, and, in that respect, unlimited discretion of the lord proprietary ; or he may at present obtain it from the General Assembly of the State: or if the patent should be granted, the caveator is not concluded by it, for he may have it repealed by information or scire facias in Chancery, or nullify its operation in an action at common law.(d) So that in either alter- {v) Land Ho. Ass. 316, 373, 374, 400, 446, 452, 462 ; November, 17S1, ch. 20, s. 6.— (w) 1789, ch. 33, s. 4 ; Land Ho. Ass. 384 ; Hammond r, Wai-field, 2 H. & J. 151.— (a;) Land Ho. Ass. 403, 420, 450 ; West v. Hughes, 1 H. & J. 9.— (y) Land . Ho. Ass. 473.— (2) 1797, ch. 114, s. 8.— (a) Land Ho. Ass. 84, note ; Noland v. Crom- well, 4 Mun. 160.— (6) 1 Mad. Chan. 4.— (c) Land Ho. Ass. 388, 409, 410, 415, 41S, 424.— (rf) November, 1781, ch. 20, s. 13 ; Carvill's Lessee v. Griffith, 1 H. & McH. 316 ; Report of D. Dulany, 1 H. & McH. 554. CUNNINGHAi,! v. BROWMNG. 321 native of putting or withholding the great sea], a direct appeal, in caveat cases, is thus rendered unnecessary ; and, as reo-ards the rights of the State, nugatory if not entirely improper. (^) When a patent has been finally authenticated, by having had the great seal affixed to it, there can be no proceedings in the Land Office, by caveat, in relation to it, the Chancellor's legal jurisdiction in that form, as keeper of the great seal, having been thus entirely cut off;(y) except in the case of a patent obtained in secret trust for a surveyor. (^) After a patent has been thus finally passed, it is, before its being delivered, recorded together with -the certificate, assignment, petition, and order on which it was granted. (A) But it must be recollected, that all cases of caveat on the Eastern Shore are there brought before the judge of the Land Office for the Eastern Shore, from whose judgment there is an appeal allowed to the Chancellor, (i) (e) Land Ho. Ass. 496.— (/J Land Ko. Ass. 495.— (g) 1789, ch. 35, s. 2.— (A) Land Ho. Ass. 495. (i) 1795, ch. 61. Willing v. Wright. — 25th May, 1S02. — IIaxsox, Chancellor. — This is the case of an appeal to the Chancellor from the decision of the judge of tlie land office of the Eastern Shore. The act of asseinbh", creating the place of the said judge, and giving an appeal from his decision, not having directed in what manner the appeal shall be prosecuted ; but a transcript from tlie register of the said office, to the re-ns- ter of this office, of proceedings in the case of Evans Willing against Sowan Wright, having been here filed ; and the said Wright praying the Chancellor to take order in the case, for the purpose of bringing it to a final decision ; the Chancellor, on delibe- ration, passed an order on the 6th day of March last, to be served on the said Wil- ling. In case of such service, and the appearance here on this day of Williu"-, in person, or otherwise, the Chancellor, according to the said order, was to proceed to an examination and decision. In case of such service, and no appearance, tlie Chancellor, according to the said order was to dismiss the appeal. Now here, this day come both parties. Willing acknowledges tlie due service of the order, and does not say otherwise, than that he is ready for a decision. On examination of the said transcript, and of certain papers mentioned in it, the Chancellor perceives no reason, wherefore he should reverse the decision. Indeed the transcript is so defective, that he can scarcely perceive what were tlie points of dispute. However, there is nothing in it to show, how Willing, the caveator and appellant can possibly be injured by Wright's obtaining a patent, and although it is very unusual with the Chancellor to give an opinion on a point of law, he does not hesitate to concur with the judge's opinion, on wiiat appears the great point, viz. : the construction of Panter's will to Hall. The point indeed is so plain, as not pos- sibly to admit of a doubt amongst lawyers. Upon the whole, it is adjudged, ordered and decreed, that the order and adjudica- tion of Thomas I. Bullett, judge of the land office of the Eastern Shore of Mary- land, in the case aforesaid, of Evans Willing against Sowan Wright, made on the 24th January ISOl, be and it is hereby affirmed, or that tlie appeal of the said Wil- ling firom the said order and adjudication, is hereby dismissed ; the Chancellor beic 41 322 CUNNINGHAM r. BROWNING. From all which it appears, that the mode of obtaining a grant of public lands, and proceedings by caveat, on the common law really doubtful, whether, under all circumstances, the appeal should be said to be dismissed, or the decision of the judge be said to be affirmed. The meaning of the Chancellor is, that nothing be gained by the appeal, and that hereafter it be no obstacle to the said Wright's obtaining a patent. The said act of assembly does not direct, what shall be done in case of an affirm- ance on an appeal. But the Chancellor conceives, that he may with propriety direct, and accordingly he does hereby direct, that the transcript aforesaid be returned, along with an attested copy of this adjudication, order or decree, to the register of the land office of the Eastern Shore ; and that, on the receipt of the said transcript, there shall be the same proceedings in the said office, on the certificate of resurvey of Sowan Wright, which was caveated by Evans Willing, as if there had been no appeal as aforesaid. Hopper v. Coleston. — 2d March, 1S03. — Hanson, Chancellor. — The said Wil- liam Hopper appeals from the decision of the judge of the land office for the Eastern Shore, on a caveat there instituted by him against the appellee, or defendant. The transcript of the proceedings in the said office on the said caveat, except the plat there exhibited for illustration, are here filed by the said appellee ; and it was, at his instance, that this day was appointed for hearing the appeal, by an order, passed on the 1st day of December last. It appears, that a copy of the said order has been duly served on the appellant, from whom the Chancellor lately received a letter, praying a postponement of the hearing. The defendant, James Coleston, now appears here, in person, and prays the Chancellor to proceed to a decision. As Mr. Hopper's application for a postponement is principally grounded on the idea, that the Chancellor may direct new evidence to be taken, before he decides, in the same manner, as if he were about to exercise an original jurisdiction, this ground must certainly fail. An appellate jurisdiction has to decide merely whether or not tlie inferior jurisdiction gave a just decision on the case before it. Were the appellate jurisdiction to admit new proofs, it would decide on a case, different from that which was before the lower tribunal ; and therefore, it would not appear, from its decision, whether the first decision was right or wrong. The Chancellor proceeded to examine tlie transcript, with a view of being informed of the nature of the case. Mr. Hopper had, in his letter, stated, that indisposition would prevent his attendance on this day. It was the Chancellor's intention, if the case should appear difficult, or if the transcript should be materially defective, to postpone the decision. It is certain, that the plat, for illustration, ought to have been part of the proceed- ings, transmitted to this office ; but the full perspicuous statement, made by the judge enables the Chancellor to understand the case, as fully without, as with the plat ; and there seems to be not the least difficulty in the case, every point therein having long since been settled in this office. A question indeed might be made, whether or not an appellate court can give relief to an appellee ; that is to say, whether or not the said court ought not to con- fine itself to the question, whether or not the appellant is entitled to relief. But the High Court of Appeals, in the case of Scott against Chapline, gave relief to Scott, who was satisfied, and did not appeal, against Chapline who was dissatisfied, and therefore did appeal. But setting this precedent aside, the Chancellor conceives it his duty to rectify mistakes in whatever way he may be apprized of them ; and par- ticularly to have the rules here established to prevail on the Eastern Shore. ^ CUNNINGHAM v. BROWNING. 323 side of the Court of Chancery, to prevent the emanation of a patent, are, and always have been substantially the same in Mary- land as in England ; insomuch so as to leave little room to doubt, that the law and the forms of proceeding of Maryland, in relation to the making out of grants, and the proceeding by caveat, were derived entirely from those of England with only such modiifica- tions here as the circumstances of the country required. But by an act of assembly touching the taking up of land, passed during the government of the first lord proprietary, it was The judge of the Eastern Shore land office in efTect has said, that Coleston could, under his warrant, survey no land which did not correspond to the description or location of his warrant. But it hag been here long since settled, that a .special war- rant shall be allowed to do every thing, which a common warrant might do. It appears, that a common warrant might have affected any part of the vacancy com- prehended in Coleston's certificate, that is to say, that no other warrant affected it; and therefore it is rightly comprehended in Coleston's certificate. The Chancellor is glad of an opportunity of informing the judge of the Eastern Shore land office of an important point, of which the said judge could not reasonably be supposed to be apprized ; and which whether it be right or wrong the present Chancellor did not decide. It was in fact decided under the former government. Under a common warrant any uncultivated vacant land, not before surveyed, or located, may be affected. A special warrant of vacant cultivation is intended to affect z. particular vacancy described in the warrant. If it accurately describes the vacanc)^ it effectually binds it, against all subsequent warrants or locations. But nothing is better established than this, — that a special warrant of vacant cultivation may aban- don its first intention and may be used to affect any lands, which may be affected by a common warrant, however distant they may be from the land described in the spe- cial warrant. It appears then to the Chancellor, that the judge's direction to exclude the vacancy not contiguous to the land, mentioned in the special warrant, is wrong ; and that Coleston is entitled to a patent for every part of the land, included as vacancy in his certificate, when certificates of the several parts shall be returned, and It is accordingly adjudged and ordered, that the transcript of the record in this case be returned to the aforesaid judge, and that he be and is hereby directed to pro- ceed, and to direct proceedings for carrying into effect his decision for returning as many separate certificates of the vacancy, surveyed for the defendant, James Cole- ston, as there appear to be distinct pieces of vacancy, in the certificate of " Guar- dian's Neglect." The Chancellor's decision, or rather his declaration of the rules of the land office is simply as follows : — whatever may be done by a common warrant, may be affected by a special warrant of vacant cultivation. It makes no difference whether or not the survey under a special warrant includes part of the land designated by the spe- cial warrant. In fact the important difference between the two warrants is, that the special warrant, before survey, affects the land accurately described in it. The com- mon warrant affects no land, until it is surveyed, or located with the surveyor. When a certificate has returned two or more distinct tracts, each having a certain beginning, the surveyor is directed to return several distinct certificates on each of which a patent is to be obtained. As to costs, tliey are left to the discretion of the judge. 324 CUNNINGHAM r. BROWNING. among other things declared, that every one claiming title to any land in certain to be holden of his lordship, may demand his claim to be entered upon record, and such entry shall bar all ensuing grants of the same land till the claim be tried.(j) This legislative provision may probably have been the suggestion from which spe- cial warrants arose ; and it is also not unlikely, that it gave rise to a practice, which was introduced not long after, of designating the land intended to be surveyed by a caveat in the office, and the marking of trees as a still more conclusive location and appropria- tion of the land until it could be actually surveyed. But this mode of designating lands by caveat endured but a short time, and is now entirely obsolete. (A;) A caveat against the emanation of a patent, it will be recollected, has always been regarded as, in fact, the commencement of a judicial controversy ; whereas this caveat in the office was nothing more than a warning to all persons not to take up the lands therein described ; it was in truth no more than a special entry of the party's claim upon record, like that made in a special warrant, or in a surveyor's book ; and had no analogy w^hatever to a caveat in chancery. It may also be well to recol- lect, thatthe proceeding by caveat in the Orphans Court,(/) as derived from the ecclesiastical courts of England, (m) is essentially differ- ent from the caveat in chanceiy against the emanation of a patent. And the term caveat has in our judicial proceedings been applied in other cases as an admonition to the court not to do certain acts, to which a party objected, until he could be heard ; as not to record depositions taken under a commission to mark and bound lands, (n) or not to enter up a judgment or pass a decree upon an award, and the like.(o) We may now pass on to the consideration of the case brought before the court by this caveat in the Land Office. According to the known and long established principles upon which public lands may be acquired by an individual from the State, the title commences with the designation of the tract by the purchaser. After the date of the designation, and before a grant has been issued, the title is inchoative, and imperfect ; but when a grant has been obtained, the title is then absolute and complete. A sufficient description of the land intended to be secured gives an U) 1642, ch. 51 ; Land Ho. Ass. 248.— (/c) Land Ho. Ass. 215.— (Z) Dep. Com. Gu. 160; 1798, ch. 101, Sub-ch. 2, s. 9.— (w) 1 Jac. Law Diet. 407.— (n) Rochr. Giles, 1 H. £c McH. 1G6.— (o) Dorsey v. Jeoffray, 3 H. & McH. 121 ; Shelf. Lun. & Idiots, 101, 654, J324 ; In maiicr of Fust, 1 Cox. 418. CUNNINGHAM v. BROWNING. 325 incipient title against every person who has not before taken some method to secure the same laTid.(/j) It is held, upon common law principles, that the grant relates back to the date of the specifica- tion ; and, by a kind of jus j^osUiminii, the purchaser is deemed to have had a perfect legal title from that period to all intents and purposes whatever. (9) He may maintain an action of trespass for any injui'y done to the land within that interval of time ;(?•) and he may, in that interval, if he has paid the whole caution money, obtain a warrant of resurvey, which is only incident to a legal title, and cannot be founded upon a mere equitable right of any kind.(s) On the death intestate of the holder of such an imperfect legal title, the right descends to his heirs, as real estate, to whom alone the patent can be granted. This doctrine of relation is founded upon principles of common law altogether and exclusively. (^) There are, however, some cases in which this imperfect title, which precedes the grant, is spoken of as being an equitable interest. (u) But that cannot properly be called an equitable title, which a court of equity cannot enforce, or have specifically executed. And it would seem strange to call that an equitable title, w^hich, after a grant has issued, all common law courts, upon the common law principle of relation, treat as the commencement of a perfect legal title. Besides, to speak of an imperfect legal title as an equitable interest, has a tendency to confuse legal distinctions, and to obscure that which is otherwise sufficiently plain and clear. In reference to the jurisdiction of the Chancellor, in cases of caveat, the distinction between legal and equitable rights, properly so called, is unknown. The true and only difference, as regards his power in such cases, being that which exists between imperfect and perfect legal titles ; those which are merely in feri, and those which are complete. The cognizance of all controversies respect- ing imperfect legal titles derived immediately from the State, belongs exclusively and finally to the Chancellor in his common law capacity as the keeper of the great seal, the affixing of which is essential to the authentication of a patent ; which capacity of the Chancellor, as relates to patent grants for land, is designated (p) Land Ho. Ass. 461.— (7) 3 Blac. Com. 210.— (/•) Chapline v. Harvey, 3 R. & McII. 396.— (s) Land Ho. Ass. 152, 149, 420, 427, 447, 455.— (/) Lloyd v. Tilgh- man, 1 H. & McH. 85 ; Spalding v. Reeder, 1 H. Sc McH. 189 ; Hath's Lessee v. Polk, 1 H. Sc McH. 363 ; Report of D. Diilany, 1 H. & McH. 553 ; Kelly's Lessee v. Greenfield, 2 H. & McH. 133 ; West v. Hughes, 1 H. & J. 13 ; Beall's Lessee v. Beall, 1 H. & J. 347.— (w) HoAvard v. Cromwell, 4 H. Sc McH. 329, 8t 1 H. & J. 118 ; Ring- gold V. Malott, 1 H. & J. 317 ; Beall's Lessee v. Beall, 1 H. & J. 348. 326 CUNNINGHAM v. BROWNING. by his style of judge of the Land Office. The rules of decision by which the Chancellor is governed in the exercise of his jurisdiction, in all such cases, are to be found in the established law of the Land Office, or, in the absence of any such positive law, the rule of decision may be drawn from the principles of equity as established in the High Court of Chancery. The whole law of the Land Office is thus made up of certain positive regulations, of usages, and of common law and equitable principles respecting imperfect legal titles ; or those contracts for land between the State and her citizens which are found in an immature and unfinished condition. It is a well settled general rule, that under a special warrant the title to the land commences from the date of the warrant itself; because the description of its location, embodied in the warrant, has distinguished it from every other tract. The warrant is, there- fore, in itself equivalent to a designation by an actual survey. So too the title commences with the date of a warrant of resurvey, and of an escheat, or a proclamation warrant. But upon a common warrant, it only commences with the date of the certificate of survey ; or from the date of the entry of a special location upon the surveyor's book. The land aimed at becomes thus bound, because of its having been, by some of these modes, accurately described and distinctly specified. The reason of the rule is the same in all these cases, and the evils to be avoided alike in all. The citizen is allowed one year, from the time he designates the land he proposes to obtain, to complete his purchase, and perfect his title according to the prescribed rules. During which time the State stands pledged to sell that land to no one else. But the State might be greatly retarded, embarrassed and defrauded in making sale of its lands, if they could be tied up, and held bound by any loose, shifting, or indefinite description of them. And the allowing of lands to be bound by vague descriptions, would be no less grievous in its consequences to individuals. No purchaser could be sure of his purchase. He might be jostled out of his location by one who had given no previous distinct intimation of its being that place or tract which he had in view. The records would furnish no sure guide ; and the chief distinction between a common and a special warrant would be frittered down to nothing, or continued only as a delusive name.(aj) C») Report of D. Dulany, 1 H. & McH.553; Land Ho. Ass. 401. CUNNINGHAM v. BROWNING, 327 All the questions that have been raised, in the discussion of the merits of this caveat, are therefore resolvable into this one : What is that degree of accuracy of the description of the land aimed at, which is deemed necessary in a special warrant to give it a binding effect? Upon this subject there seem to exist some difficulties which have not yet been removed, although the question has been often under the consideration of the Chancellor. The distinction between a special and a common warrant, as now understood, and so well established, it is said, was not expressly and generally recognised until about the year 1750, when warrants having a location, by the specification of the particular place where the quantity of land therein called for was to be laid out, were called special warrants, in contradistinction from common warrants describing no place ; and which, therefore, might be applied any where. (z«) It has been laid down, that the description contained in a special warrant should suit none but the land contended for; and should be so full and certain as plainly to point out the inten- tion. But it is said, that, although the exact lines, limits, or boundaries, cannot be expected to be set down before the survey is made, the description may, at least, point out to every inquirer the general situation of the land. It may at least enable a person to say of some spot or point that it is comprehended within the tract aflfected by the warrant, (a:) And further, that there is some rea- son to doubt whether the rule was not less strict before the revolu- tion ; since it appears, that the special warrants, in the years 1773 and 1774, seldom went further than to state the vacancy to be adjoining to some particular tract or tracts, either naming them, or the person or persons in possession of them. (3/) In a case where the special {w) Land Ho. Ass. 84.— (x) Land Ho. Ass. 401. (y) Fowler v. Goodwix. — Sth Jpril, 1809. — Kilty, Chancellor. — The proceed- ings and the grounds of the caveats, as stated in the argument, have been fully considered, and notwithstanding the several objections made to these certificates, the Chancellor considers it as a point clear of any doubt, that the caveats cannot be sustained. It appears that a special warrant was obtained by Goodwin, and others, on the 23d of May, 1774, to talie up 400 acres of vacant land, stated to be adjoining to the following tracts of land, or some of them, viz. Nicholas and John, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th discoveries, &,c. Several certificates, including tliose now in dispute, were returned in May, 1776; and patents thereon not having been issued, the present caveats were entered in September, 1S07. One of the objections stated by the caveator is, that patents were not taken out •within two years, according to the 11th section of the orders and instructions in 1733. The Chancellor is not satisfied of the validity of this objection ; nor is he informed 328 CUNNINGHAM v. BROWNING. ^ warrant called for five hundred acres " adjoining the west line of Gore," it was held, that the description "was sufficient to of any case in which it has prevailed. There is apparently still less force in tlie objection arising from the situation of the chain-carrier, as proved by the deposition of Samuel Hawkins, and also in the tiifling errors in the phraseology of the warrant, which were mentioned in the argument. It would seem, therefore, that the point most relied on by the caveator, is the want of precision in the location, or as he expresses it, the location being too broad. It is certainly the interest of every person who takes out a special warrant, to describe or locate the land as clearly and precisely as he can, in order to bind and secure it from the operation of other warrants ; but there is no set form, or expres- sion required in order to comply with the general rule, which (as laid down by the late Chancellor in 1793,) was, that the description of the warrant should suit none but the land contended for, and that it should be so full and certain as plainly to point out the intention. There is, however, some reason to doubt whether the rule was not less strict before the revolution, for it appears that the special warrants in the years 1773 and 1774, seldom went further than to state the vacancy to be adjoining to some particular tract or tracts, either naming them or the persons in possession of them. In the case of Pumphrey v. Wallace, the reasons for allowing the caveat of the latter are not expressed, and can only be inferred from what appears on the papers ; because it would be totally improper to take the opinion of C. Wallace, as expressed in his deposition, or that of any other person, as evidence of such reasons. Pumphrcy's warrant was dated the 28th of December, 1792, and executed on the 6th of February 1793. But Wallace had taken out a warrant of resurvey on the 18th of January, 1793 ; so that the question must have been how far the location made in Pumphrey's warrant was binding, so as to prevent the operation of the warrant of Wallace, which bound all the contiguous vacancy, supposing it not previously secured. The vacancy in dispute consisted of cultivated land, as appears by the receipt of the treasurer for improvements ; and it may be inferred, that the caveat was ruled good on the ground of the location in Pumphrey's warrant being vague and indefinite, as was decided in the case of Beatty v. Orendorf, in 1793, {Land Ho. .-^ss. 400,) in which the vacancy was also cultivated land, and the claim of Orendorf on a warrant of resurvey. It is not, however, necessary in the present cases, to determine whether the location or description in the warrant, W'as sufficient to bind or secure the vacancy aimed at, or to say what would be the result of the facts established by the depositions and the surveys returned, because the several parcels of land returned in Goodwin's certifi- cates do not appear to have been cultivated, or to have had improvements thereon ; and therefore must be taken as uncultivated, and liable to be aflected by a common warrant, and-it will be observed, that two of the certificates returned by the caveator on his warrant, supposed to include the same land, are for uncultivated land, and the improvements on the other three are only a few fence logs. It was stated in the argument, that the warrant was not a proper one — that it was neither a special nor a common warrant. But, although it was not simply a common warrant, yet it might be used as such, and the general tenor of special warrants was, and still is, to direct the surveyor to lay out the said quantity, be the same culti- vated or otherwise. On this subject the following points appear to have been settled : — That a special warrant shall be allowed to do every thing which a common warrant might do; — that a special warrant may abandon its first intention, and may be used to affect any lands which may be affected by a common warrant, however distant they may be from the land described in the special warrant; and that, in such case, CUNNINGHAM v. BROWNING. 3291 bind the vacancy to a certain extent;" but it is not said how fa.T.{z) In the various instances put of describing the general situation ; of referring to some spot or point comprehended by the tract ; or to the particular line, or corner, or extremity of the tract to which the vacancy is contiguous, and of such a description being binding to a certain extent ; it is not said, nor is it perceived to what extent the binding effect of the description would be allowed to go ; nor even if that could be settled, is it perceived hovv^ the fact of such obligatory extent is to be ascertained and proved. It is certain that parol proof is wholly inadmissible for any such purpose. (a) It has been solemnly declared, that a warrant for one hundred acres, contiguous to a tract, of which the outlines are altogether twenty miles in length, cannot be thought to give an exclusive right to survey any one hundred acres contiguous to that extensive tract. (6) And it has been laid down with great attention as a rule, that if an angle of one tract runs up to or touches an angle, or even a side of another tract, there is no contiguity between that other, tract and the land contained within the two lines forming: the angle. (c) In judicial proceedings involving the titles to land, the term location occurs very frequently ; and its meaning varies witli the subject spoken of. The word is used in' speaking of a point or place of beginning, of a line, and of a whole tract. But in these cases, the meaning and the ideas conveyed are different. When the location of a point is the subject spoken of, an indivisible part of space, a spot, comprehending no superficial extent, is alluded to. it makes no difference whether or not the survey under a special warrant includes part of the land designated by the spocinl warrant. It is well known that a common warrant binds or affects the land at the time.of its location with the surveyor, and a fortiori, it must bind at the time of the actual surveys which, in these cases, w^as many years befoi-e the date of the caveator's warrant. The application of the above principles to tlie matter in dispute, being sufficient for its decision, it will not be necessary to remark on some other grounds of defence which were urged by the counsel for Goodwin. But, with regard to the opinion of Mr. Callahan, the late register, concerning the certificates now caveated, as stated in the depositions of Oliver Cromwell, it is thought proper to declare explicitly, that such evidence of the opinions of that officer can have no possible influence in any case now to be decided. It is adjudged and ordered that the aforesaid caveats be dismissed with costs. (2) Mortland v. Smith, MS. 19th April, 181.5.— (ff) Beatty r. Orendorf, Land Ho. Ass. 402.— (6) Beatty i-. Orendorf, Land Ho. Ass. 401.— (c) Whitford v. Jones, Land Ho. Ass. 413. 42 330 CUNNINGHAM v. BROWNING, When speaking of the location of a li?ie, an idea of the place of a certain longitudinal extension, limit, or boundary, is presented to the mind ; but in contemplating that subject, we form no idea of space, or any superficial extent. We can, however, have no otlier idea of the location of a tract of land, than that it is a space, a superficial extension, an area, a surface comprehended within certain confines. The word location, in reference to a tract of land, must, therefore, always be attended with these ideas. It is a place of greater or less extent. It may be a small lot, or it may be spread out to an extent of many hundreds of acres. It is still an indi- vidual, entire location, or place small or large. The term location is also often used in our judicial proceedings as synonymous with the word description. Thus it is said, that the location is uncertain, that it is ambiguous, or that it has a double aspect. The word in these instances evidently means, that the description of the place, the area, or the space of land is uncertain, ambiguous, or that it has a double aspect. Because the description of the land may have one or two aspects ; it may be gratified in all its parts by being located in one position or another. But, it would seem to be absurd to say, that a place had a double aspect, or that it was a place which admitted of being put in one place, or in another place. Hence, in most, if not all instances, by ambiguity of location, uncertainty in the description of the location is really meant. For it is difficult to conceive how the location of any one piece of land can be deemed certain, or become known, in contra- distinctibn to any other parcel, but by the accuracy of its description. The location or place of any one space or tract of land, it is most manifest, can only be distinguished from other spaces or tracts by the preciseness of its description. And that description does nothing towards the designation of a tract of land if it stops short of defining one whole and separate space or area. By the rules for the direction of surveyors, the surveyor is required, upon the receipt of any common warrant, to note down in a book to be kept for that purpose, the time of receiving it, the quantity of acres included therein, the date thereof, and at what place the person who obtains it locates the same.(rf) So that the entry of a special location in the surveyor's book, is substantially the same as the entry of a special warrant with the register of the Land Office. In regard to which it has been laid down, that if a (rf) Land Ho. Ass. 435, CUNNINGHAM v. BROWNING. 33 1 special warrant, " accurately describes the vacancy, it efTectually binds it against all subsequent warrants or locations ;" and further, that " whatever may be done by a common warrant, may be effected by a special warrant of vacant cultivation. It makes no difference whether or not the survey under a special warrant includes part of the land designated by the special warrant. In fact, the important difference between the two warrants, is, that the special warrant, before survey, affects the land accurately described in it. The common warrant affects no land until it is surveyed, or located with the surveyor. "(e) In short, the designation of the land given in the special warrant, or the entry upon the surveyor's book, must be such a description of a space, an area, or a tract, as may be understood and ascer- tained by proof of the existence of the localities referred to ; it must be such an one as will suit no other land, and be sufficient in itself without having any substantial matter supplied by parol proof (y) This may seem to be requiring too great a degree of strictness ; but it has long been the established law, and is not more rigid than a due regard to the public good requires. Cer- tainty is the mother of quiet ; and in nothing more so than in the titles to lands. The vacancy aimed at by a special warrant, is often embraced by two or more other tracts. A reported example of which may be found expressed thus : '**about one hundred acres vacant lying in A. A. county, and adjoining or between a tract of land in possession of J. Brown, a tract of land belonging to J. Hall, and a tract of land in the possession of /. McDon- ald.^\g) So in another instance where a particular neck of land was described. (A) Other examples may be imagined. Suppose the tract of land called Bellevoir to lay along, and parallel for some distance, within half a mile of the river Severn, and the special warrant, were expressed in these words : " about two thousand acres vacant, lying in A. A. county, between the tract called Belle- voir and the river Severn." Or, suppose Browning's Spring to be situated a short distance west from the mouth of the stream called the Litde Crossings, the general course of which was north and south, and the Panther Pen was a short distance west of the same stream higher up ; and the description in the special warrant was tlius : " about 200 acres vacant lying in Allegany county, west of and bounding on the Little Crossings, and between Browning's (e) Hopper v. Coleston, ante, ,'}22.— (/) Beatty i-. Orendorf, Land Ho. Ass. 402. (g) Garretson's Lessee v. Cole, 2 H. &, McH. 459.— (A) Land Ho. Ass. 87. 332 CUNNINGHAIM v. BROWNING. Spring and the Panther Pen." In no one of these descriptions is any course, distance, or line distinctly named ; yet it is perfectly manifest, that each one specilies a space, or area of land, so very accurately, that it cannot be mistaken, and in a manner that cannot be made to suit any pther land. After what has been said, the description given in Browning^s special warrant can scarcely require a single remark. It is deficient in every particular, and in fact amounts to nothing. It does not describe any space, area, or tract of land whatever. It does no more than designate points or spots ; but whether by so doing it is meant to indicate the place where the outlines of a tract are to begin ; or whether the quantity called for is to be laid off round them as the centre ; or in what direction from them, is not said. But it will be difficult to conceive of a description which has more entirely excluded every idea of space, area, or tract, than that con- tained in this special warrant of Browning. For every purpose of giving title to any tract of land, it is a mere nullity. But allow to it every thing to which it can pretend ; let it be considered as no more than a description of the place of beginning ; and then, even to that extent, it can now be of no avail to the party ; since it appears by the certificate of survey, that the boundaries have not been commenced at the place thus specified ; and the survey not having pursued the description given, it is in itself a total aban- donment of every special pretension under the warrant. (i) As to the nature and sufhciency of the description of the place of begin- ning, which Cunningham caused to be noted dovrn on the surveyor's book, nothing need be said, as he has not relied upon it for any purpose. It appears from the plot returned, that Browning^ s Hunt- ing Ground runs entirely across Cheviot Dale. Browning may, therefore, have his certificate so amended as to comprehend either parcel of land w^ithin the lines of his present certificate, which is not covered by Cheviot Dale.{j) Whereupon it is adjudged, that the caveat oi James Cunningham be and the same is hereby ruled good as to the w'hole extent of Browning's Hunting Ground comprehended within the lines of the tract called Cheviot Bale. And it is further adjudged, that Meshak Browning have leave so to amend his certificate as to exclude all the land lying within the tract called Cheviot Dale ; and that the said Browning pay all costs. (i) Land Ho. Ass. 472, ASO.~(j) Garrettson v. Cole, 1 H. &. J. 374. CHASE V. MANHARDT 333 CHASE V. MANHARDT. On a motion to dissolve an injunction on the coming in of the answer, the facts only as set forth in the answer are to be considered as established, not the opinions or reasoning of the partj' ; and therefore, where a defendant insisted upon a claim to a certain amount, according to certain proceedings which, of themselves, showed that it could not have amounted to so much ; it was held, that the facts so shown by the defendant himself could not be ovciTuled by any thing he had alleged as being, in his opinion, a correct conclusion of law from them. Where there is an agreement to allow for payments, or a verdict has been taken by surprise or mistake, it furnishes a ground for the interference of a court of equit\' ; but if the mistake can be corrected in this court, a new trial at law will not be ordered. Where it is admitted by the answer, that there still remains a dispute bet^veen the parties, the injunction is always continued until the final hearing. Where in a contract between A and B alone, A stipulated to pay a sum of money to B, upon condition, that he made an assignment of certain property to A, and delivered the assignment to C, before a certain day ; it was held, that A was to be considered as the contracting partj', who alone could dispense with the condition. Where a party bound himself to secure the payment of money, by giving his notes payable so many days after date, but failed to do so ; it was kcld, that the debt should bear interest from the time the notes, had they been given, would have fallen due. Interest is paid for the use or forbearance of money ; and therefore, where a debtor is prevented by law from making payment, or cannot pay, because of any public calamitj', such as that of a public war, he will not be charged with interest. But an attachment laid in his hands, as a garnishee, does not prevent him from bringing the money into court so as to stop interest ; and therefore, if, as garnishee, he contests the plaintitFs claim, either in his own right, or as an ally of the defend- ant, he will be charged with interest. If a creditor, in any manner, receives only, the principal of his debt, so as not to relinquish his claim to the interest then due, he may afterwards recover the interest as if it were a part of the principal. In some cases, a partj' may be relieved from the consequences of a fraud which has been practised upon a third person. This bill was filed on the 30th of December, 1818, by Samuel Chase against Christian L. Manhardt, and others ; in which it is alleged, that the de f end^int Manhardt had obtained a judgment against James Bryden for a large sum of money, upon which he had sued out an attachment, and had it laid in the hands of this plaintiff Chase, as garnishee of the defendant Bryden ; upon which attachment Manhardt had, by surprise and fraud, obtained a judg- ment of condemnation against the plaintiff for an amount which he did not owe to Bryden. Whereupon the plaintiff prayed for an injunction to stay execution upon the judgment, and for such relief as the nature of his case required. After which the plaintiff filed an injunction bond, when, on the 16th of Januar)', 1819, an 334 CHASE V. MANHARDT. injunction was granted as prayed. Some time after the defendants, having answered, gave notice of a motion to dissolve the injunc- tion. The particular circumstances of the case sufficiently appear in the opinions delivered by the Chancellors. . 31st March, 1821. — Kilty, Chancellor. — The motion to dissolve the injunction in this case, came on to be heard according to notice, and was argued by counsel for Manhardt, (the said counsel having also been made a defendant ; ) and by the complainant in proper person. On considering the bill, answers and exhibits, I am of opinion, that the equity of the bill is not denied or destroyed ; and that the defendant Manhardt is not entitled to a dissolution of this injunc- tion. It is apparent from the answer of Manhardt, that he relies on the verdict, or his statement of the course of law by which the sum due from the complainant was ascertained, for the amount thereof; which amount he was clearly mistaken in. His debt against Bryden was |6664, in 1818 ; making, with the interest, $9326 62. But Chasers debt to Bryde/n could, at most, have been only $6000, with interest from 1812. And it was admitted in the argument, that there was a mistake of several hundred dollars by the jury's finding a verdict for the sum due from Bryden, instead of the sum due from Chase as garnishee. Manhardt states his information and belief, that the verdict and judgment at law were obtained upon a full and fair trial upon competent evidence ; and he denies, that he authorized his counsel to relinquish any part due on the verdict. As to the first point, it appears from the answer of J. Purviance, Esq'r, to which no objection has been made, that the trial was not a full one, nor in the ordinary course where a serious opposition is intended ; but that he permitted a verdict to be entered for what he supposed to be the balance of principal and interest ; and not alleging, that he was regularly the counsel of the complainant, though he was of Bryden. And as to the second point, J. Purviance states in his answer, that he was ready to wait on D. Hoffman, Esq'r, counsel for Man- hardt, to correct any errors, and D. Hoffman states his belief, that he informed the complainant the excess, if any in the verdict, would not be claimed ; which, as counsel for Manhardt, he had a right to do. And it appears by his answer, that the verdict was rendered for the amount supposed to be due, to wit, $6654, prin- cipal, with interest from 1808, which were the sums due from Bryden CHASE V. MANHARDT. 335 to Manhardtj and not the sum due from Chase to Bryden. This part of the answer is not a denial of the equity of the bill in that particular. It is true, that the present complainant had it in his power to contest the suit more fully than he has done, and if he was con- cluded by his neglect, there would be an end of the case. But wherever there is an agreement to allow for payments or deduc- tions, it furnishes a ground for the interference of a court of equity. And so where a verdict is entered by surprise or mistake, the latter of which is admitted in this case. And the Court of Appeals has gone much further in relieving against the verdict of a jury, or the confession of judgment. In noticing the answers of the counsel in the suit at law, I have to observe, that I am not satisfied as to the necessity of making them parties to this suit ; and if they w^ere proper parties, they wx're not bound to answer beyond what related to themselves. But as to all the answers, in a motion to dissolve an injunction, the facts set forth alone are to be considered as established thereby, and not the opinions or conclusions of law drawn by the defendants from the facts ; much less the reasoning in them. It is a ground of equity in the bill, that Chase was not bound to give his notes, or make payment of the $6000 to Bryden^ until the previous conditions were complied wdth. The tender of value, &c. on behalf of Bryden, does not affect this equity, inasmuch as it w^as accompanied by a demand of the notes, which, after the attachment was laid, he had no right to demand. As to Manhardt himself, (independent of the verdict irregularly entered,) supposing the claim to have been such as could be attached, he had no right to be put in a better situation than Bryden, or to put Chase in a w^orse situation as to the debt, or as to the terms on which it w'as to be paid. If the injunction should how be dissolved, after deducting the excess in the verdict, as proposed by the counsel for Manhardt, the complainant might be left without remedy, if the instruments of writmg, now filed, should be insuflicient ; which will be a ques- tion proper to be determined on final hearing. But the complainant claims also a deduction of the interest charged in the verdict ; on which, though it was not considered as the ground for the injunc- tion in the order passed, he has a right to a decision, as it is not admitted, but strongly contested. This brings the case within the rule laid down in the suit by 336 CHASE V. MANHARDT. Colegate against Lynch ;{a) that when a proper ground for the injunction is admitted by the answer, and there still remains a dis- pute between the parties, the injunction is universally continued. Here the admission is made by the answer of D. Hoffman, read and relied on by himself as counsel for Manhardt, thereby remov- ing the exception to it as evidence against Manhardt ; and the mis^;ake and overcharge was admitted by him in the argument, which would be within the same reason. It is thereupon adjudged and ordered, that the injunction be and the same is hereby continued till final hearing or further order. . After this- the defendant James Bryden died, and Charles F. Mayer, his administrator, was on the 1st of January, 1825, admitted as a defendant in his place, on an application in the manner pre- scribed by the act of 1820, ch. 161. After which the bill was: amended by giving to it an additional prayer; and the com- missions to take testimony having been returned, with the proofs taken, the case was by agreement set down for hearing and brought before the court. 6th July, 1827. — Blaxd, CJiancellor. — This case standing ready for hearing, and having been taken up at this time by consent, the parties were fully heard, and the proceedings read and considered. The late Samuel Chase on the 26th of February, 1806, leased that property in the city of Baltimore, called the Fountain Inn, to James Bryden, for the term of fifteen years at the rent of $2000 per annum. And on the same day CJiase gave to Bryden his bond, with a condition, that he. Chase, at the expiration of fifteen years from that day, and not before, and at any time within one year from the expiration of that term, and not afterwards, upon the pay- ment to him, by Bryden, of the sum of $17,500, would convey in fee simple to Bryden that property. Bryden entered upon, and held the property accordingly. On the 11th of December, 1807, Bryden leased it to John H. Barney, at $3000 per annum for ten years from the first of April, 1808. Under this lease Barney entered and held as the lessee of Bryden, and sub-tenant of Chase. After which Samuel Chase the original lossor died ; and the present complainant, and Richard J\I. Chase, it seems, became the holders of all the estate and interest in this property, which had belonged to the late Samuel Chase, but when or how does not appear. (a) 2H. &. J. 34. CHASE V. MANHARDT. 337 In this state of things, on the 26th of March, 1812, this com- plainant agreed to give James Bryden $12,000, for his interest in this property, the half of which he then paid to Bryden^ and on the same day stipulated for the payment of the other half in these words : "I agree that on James Bryden'' s delivering to me of the original bond of my late father Samuel Chase, dated February 26th, 1806, duly assigned to Richard M, Chase, and also procuring Mrs. Margaret Mcintosh of New York to assign and make over to the said Ricliard M. Chase a release of a mortgage given by the said James Bryden to her late husband ; and also giving the said Richard M. Chase a good title to the lots and houses in the city of Baltimore, mentioned in the said bond, and also on his assiori- ing to the said Richard M. Chase the original policies of insur<1nce on the said houses : to give him good negotiable notes for the sum of $6,000 payable six months thereafter." This is the contract referred to in the bill as exhibit A ; that referred to as the receipt exhibit B, is not among the papers ; and, as it was not noticed in the argument, it is presumed was considered wholly unimportant. It is not any where distinctly stated or shown from what time Bar- ney was to be considered as the tenant of Chase ; but it would seem, that it was from the first of April 1812, as Barney says he paid the whole of his rent to the end of his lease from that day to the complainant Samuel Chase. In October, 1808, the State for the use of Christian L. Man- hardty one of these defendants, obtained a judgment in Baltimore County Court, against James Bryden, for the sum of $10,035 95, to be released on the payment of $5,018 82, with interest from the 1st of October 1803, and costs. Upon this judgment an attach- ment was issued, and returned to March term, 1809, laid in the hands of John H. Barney as garnishee, and at March term 1811, the sum of $1,002 40, w^as condemned in his hands, but without costs. This attachment was renewed and returned to October 1811, laid in the hands of John H. Barney, as garnishee, and judgment was rendered against him for $494, w^ithout costs, at March term, 1812. An attachment was then again immediately sued out on the same judgment ; and, as it would seem, some time previous to the 17th of July following, was laid in the hands of the complainant Samuel Chase, and so returned to the ensuing Sep- tember term. This case was afterwards continued, from term to term, until March 1817, when it was entered, " continued to await the decision in a cause in chancery." And at the following Sep- 43 338 CHASE V. MANHARDT. tember term, on the plea of mil tiel record, judgment was rendered for the plaintiff; and an issue having been made up on the plea of nulla bona, there was a verdict on it and judgment rendered for the plaintiff on the 13th of October 1817, against the garnishee Chase for the sum of $9326 62. Upon which judgment an appeal was prayed and granted. And on the 29th of June, 1818, the judg- ment was affirmed by the Court of Appeals. It appears, that the complainant Cliaae was consulted as to the nature of the papers and documents which he wished to obtain by his contract of the 26th of March, 1812 ; — that they were prepared and executed agreeably to instructions which he himself gave ; and after the attachment had been laid in his hands, on the 17th of July, 1812, they were tendered to him ; and offered to be delivered, upon his giving his notes for $6000, payable in six months there- after; which notes he refused to give, because of the attachment which had been laid in his hands as garnishee of Bryden ; choos- ing rather to await its judicial termination. It was never proposed to deliver the papers on obtaining judgment on the attachment ; nor did Chase ever offer to give or suffer judgment on receiving the papers ; nor did he object in any manner to the sufficiency of the deeds, that had been tendered. Indeed, so far from it, on being expressly asked, if he had any objections to them, he replied he had none. When the jury was sworn to try the issue on the plea of nulla bona, the papers, which Bryden had stipulated to deliver, were pro- duced ; to show that he had complied with the contract on his part; and that, in consequence thereof, Chase had become his debtor for the sum of $6000, with interest thereon. And it being believed and supposed, by the attorneys, David Hoffman and John Purviance, (for they alone conducted the trial,) that the principal and interest of the debt due from Chase to Bryden amounted to $9326 62, the jury were permitted or directed to find a verdict for that sum; upon which a judgment was rendered. Soon after this judgment was obtained. Chase comjjlained to David Hoffman, the attorney for Manhardt, and also to John Pur- viance, that it had been obtained for much more than was really due, even if he were chargeable with interest ; but that he ought not to have been, and could not lawfully be charged with interest at all, according to the terms of his contract. Upon which those attorneys both insisted, that he was chargeable with interest from the date of the purchase. But they agreed, that if it should appeal CHASE V. MANHARDT. 339 on a calculation and review of the proceedings, that he had been charged with too much, the excess should be remitted. Indeed they admitted, that there was an excess which had occurred by mistake ; which error should certainly be corrected. Chase did not then assert, that he owed nothing to Bryden ; or that, according to the terms of his contract, he could not, at that time, have been legally considered as the debtor of Bryden. It was not until some time after, that he objected to a judgment having been rendered, at that time, for either principal or interest, on the ground, that Bryden had failed to comply with the contract on his part. It appears, that the policies of insurance had been regularly transferred by Bryden according to the terms of the contract with Chase, on the 11th of April, 1812 ; and that the papers alluded to in the contract of the 26th of March, 1812, were retained by John Purviance for some time, and are now filed in this case as exliibits referred to in the answer of David Hoffman. These facts and circumstances have been collected from the bill, answers, exhibits and proofs ; they are all that have any material bearing upon the matter now in controversy ; other particulars will be noticed in the course of the investigation. It does not appear, from any thing in these proceedings, what was the nature and extent of Richard M. Chaseh interest in the property called The Fountain Inn ; but it is quite certain that the contract of the 26th of ^Nlarch, 1812, was made between this com- plainant Samuel C/mse and Ja7nes Bryden only ; — that no other persons were immediately parties thereto. The complainant says in his bill, that he agreed with Bryden to purchase of him that property ; and in the agreement itself he says, " I agree that on James Bryden'^s delivering to ?ne," &c. Hence it is clear, that, although the assignment and releases were to be made to Richard M. Chase, yet when so made they were to be delivered to the com- plainant Samuel Chase. And further, that on Bryden'' s delivering those papers to Chase he would give Bryden, " good negotiable notes for the sum of $6000, payable six months tliereafter.'''' Whence it is perfectly clear, that the delivery of the specified papers was that act to be done by Bryden, which was to bind Chase to him unconditionally as his debtor. Consequently, it was the contracting party Samuel Chase, alone, who could insist on the performance of it as a condition precedent. It was he alone who could dispense with it as a preliminary act, or waive it altogether. Does it then appear, that this act has been either performed, par- 340 ' CHASE V. MANHARDT. lially dispensed with, or altogether waived so as to make Chase the debtor of Bryden ; and when ? From all the pleadings and proofs it is clear, that the complain- ant acquiesced in the fact, and acted upon the conviction of his having become legally and properly the debtor of Bryden in the sum of $6000 from the 17th of July 1812, when the papers were tendered to him. He was right in refusing to give his notes at that time, because of the attachment. It was not, however, the giving of his notes, which alone could fix him as the debtor of Bryden ; but the delivery of the papers, or his dispensation wnth that delivery, either as a condition precedent or altogether. Qiase did not reject the performance proffered to him by Bryden ; because it was partial, or at all defective in its nature. On the contrary, he expressly said he had no objections to make to it ; and rested his non-compliance, on the pendency of the attach- ment; and nothing more. From the position he then assumed, it manifestly appears, that he waived the delivery of the papers as a condition precedent ; and relied upon his contract alone, considering it as an independent agreement, by means of which he might obtain them. He might then have taken the ground, that the delivery was a condition precedent ; or he might have offered to deposit the money in court on those papers being delivered to him ; or he might have put that defence upon the record in the attachment case by a -special plea, or in answer to the interrogatories propounded to him. But he did not do so. He must, therefore, be considered as the debtor of Bryden on the 17th of July, 1812, according to the terms of his contract. Being perfectly satisfied of these facts, and that Samuel Chase did thus acknowledge and consider himself as the debtor of Bry- den on that day; it is unnecessary to determine whether this claim of Bryden^s was or was not such a debt as might have been attached in the hands of C/iase as his garnishee ; since Clmse^s whole course of conduct in the attachment case amounts to a total and absolute waiver of every objection on that ground. (6) The next question therefore is, whether, according to the nature of the contract between Bryden and Chase he was chargeable wnth interest, and from wdiat time? It has been insisted, that Chase. ought to be charged wdth interest /royn tJie date of his contract, and (6) Louderman v. Wilson, 2 H. & J. 379. CHASE c. MANHARDT. 34I to sustain this position very great reliance has been placed upon a numerous class of cases, which show, that in equity a purchaser who takes, or has been let into possession and receives the rents and profits shall be charged with interest. (c) But none of those cases are like the one under consideration. Here it appears, that the lessor. Chase, purchased an outstanding claim from the lessee for which he paid $6000, down at that time, and stipulated to pay $6000 more, six months after the delivery- of certain papers relin- quishing that claim. Shortly after which time he was let into the receipt of the additional rent from the sub-tenant. It appears, therefore, that he was let into that receipt, by reason of the first payment. And, consequently, the second payment cannot be affected in any manner whatever by that change ; even supposing it not to have been within the contemplation and purview of that contract by which it was stipulated to be made. Hence this ques- tion about interest must rest altogether and exclusively upon that contract, and upon that alone. By this contract Ckase was to give his negotiable notes payable six months after the delivery of the papers. All negotiable notes carry intei'est from the day they fall due. To this general rule there are few if any exceptions. Had not the attachment been interposed, it is to be presumed that this contract would have been fulfilled by each of the parties exactly, according to its terms. If so, the papers would have been delivered to Chase on the 17th of July 1812, and he would have then given his negotiable notes payable six months thereafter, which would have borne interest when they fell due, and not before. The attachment did not alter CJiase's contract, or place him in any worse condition, than he would have stood before ; it only commanded him to pay Manhardt instead of Bryden ; and, although it obliged him to pay all, prin- cipal and interest, it could not compel him to pay sooner, or to pay more than he stipulated to pay Bryden. It is an established prin- ciple, that where goods are sold to be paid for b^- a bill of exchange, and tlie purchaser neglects to give the bill, the vendor is entitled to interest from the time the bill if given would have become due.(rf) This covenant "to give good negotiable notes," in effect then, amounts to an express stipulation to pay interest from the (c) Sug. Vend. & Pur. 354; 1 Mad. Chan. 441.— (rf) De Bernales r. Fuller, 2 Camp. 42S, note; Porter r. Palsgrave, 2 Camp. 472; Boyce' r. Warburton, 2 Camp. 4S0. 342 CHASE V. MANHARDT. day they would have become due if they had been given. Con- sequently Chase must be charged with interest from the 17th of January 1813, the day when the notes would have become due had they been given as they should have been, when the papers were tendered ; and as it appears they would have been, but for the attachment ; that is to say, from that day until the 13th of October 1817, when the judgment was rendered in the attachment case. It thus appears sufficiently evident, that confining our conside- ration to the contract alone. Chase must be charged with interest. But it is said, that the attachment restrained him from paying the debt ; and therefore, he cannot be burthened with interest during the continuance of that restriction. The legislature have declared, that a debt may be attached in the hands of a debtor before it is due.(e) And, consequently, in such cases, the plaintiff may obtain judgment before the debt becomes due with a stay of execu- tion. (/") But they have said nothing about interest on any debt that may be attached. Whether the laying of an attachment of itself suspends the claim of interest upon the debt attached, is the question next to be investigated and determined. All the other States of our Union have adopted a form of judi- cial procedure having the same object as the attachment of Mary- land ; and hence we may with as much, perhaps more, propriety deduce illustrations and principles from their adjudications upon this subject than from those of England. In every instance, how- ever, it is conceived that such adjudications, whether American or English, must be received with caution ; because of the dissimi- larity of the judicial forms, and the differences in many particulars of the code upon which they are predicated. A decision of the Supreme Court of Pennsylvania has been much relied on, in which it is laid down as a general rule, in that State, that a garnishee is not liable for interest while he is restrained from the payment of his debt by the legal operation of a foreign attachment, (o-) This same tribunal has furnished us with an expo- sition of the reason of this rule. Where the creditor, (it is said,) cannot enforce payment, nor the debtor pay consistently with the law, or without disobeying its positive and unqualified injunctions, as by going into an enemy's country to make payment, the debt shall not carry interest ; because interest is paid for the use ox for- (e) 1795, ch. 56, s. 6.— (/) Com. Dig. tit. Attachment, G.—{g) Fitzgerald v. Caldwell, 2 Dall. 215. CHASE V. MANHARDT. 343 bearance of money. Therefore, where a person is prevented by- law, as in that instance, during the revolutionary war, from paying the principal, he shall not be compelled to pay interest during the continuance of the prohibition. And upon this analogy and these reasons, it is said, that the garnishee shall not be compelled to pay interest pending the attachment ;(A) — unless he has been guilty of fraud or collusion, or has himself occasioned some unreasonable delay ; which is in no case to be presumed, but must be proved.(t) Nothing can appear to be more just and equitable than, that when a debtor is positively prohibited from papng his creditor, or is prevented from doing so by the overruling calamity of war, he ought not to pay interest. Because in such case he is compelled against his will to become the holder or bailee of the money, at his own risk ; and that too perhaps at a time and under circumstances w^hen it may be very unsafe to use it, or utterly impossible to derive any benefit from the use of it. So far the reason is satis- factory, and applies as forcibly here as any where else.( j) But in this State a garnishee, in an attachment case, is not thus absolutely tied up and restricted. He is not bound to hold the money at his own risk and against his consent, or longer than he chooses, (/v) Now" it is upon this very principle, of the existence of such a positive restriction, that the rule of the Pennsylvania law is based. It is, that the restriction imposed by attachment is altogether analogous to that prohibition imposed by a posi- tive law, or a public war. This may be so there, but here it is otherwise. I take it to be the established law of this State, that the defend- ant, in all actions founded on contract for the recovery of a debt, may have leave as a matter of course to bring the sum sued for into court; and thus put a stop to the further accumulation of interest and costs, at least for so much as he brings in.(/) In those cases where the debt carries interest according to law, the mere bringing of an action for the recovery of it does not suspend the accumulation of interest for a single moment. Because it is the duty of the debtor to seek his creditor and make payment ; and if he fails to do so he is liable to be sued, and is chargeable with (h) Hoare v. Allen, 2 Ball. 102.— (i) Fitzgerald r. Caldwell, 2 Ball. 215.— (y) Bu- lany v. Wells, 3 H. & McH. 23 ; Court v. Vanbibber, 3 H. & McH. 144 ; Bordley v. Eden, 3 H. & McH. 167.— (A) Ross v. Austin, 4 Hen. & Mun. 502.— (Z) Tidd, Prac. 561. 344 CHASE V. MANHARDT. interest on the ground of his neglect. But if, being sued, he con- tests the claim, then he is chargeable on the stronger ground of his wilful opposition and denial of justice. It is difficult to conceive what pretension a garnishee can have to stand in a better predicament than a defendant debtor. He is cited as a debtor ; and is called into court certainly in that charac- ter, although not by tliat name and in that form. It is often said, that the object of our " attachment acts and practice," is to enforce an appearance. It may with as much propriety be said, that their intention is to compel a plea or any entry upon the docket. Their true and only object is to citable a creditor to obtain satisfaction out of any property found in this State belonging to his absent or absconding debtor ; and for that purpose they have provided " a special auxiliary remedy for the recovery of debts :"(to) some- thing analogous to which will be found to exist in every code whatever.(7i) Hence it is evident,, upon general principles, that a garnishee stands in all respects in a situation exactly similar to that of a defendant debtor; having the same rights and subject to the same liabilities. He may have leave, at any time, to bring the debt into court ; and he is chargeable with interest from the time it becomes due until it is paid. The positive provisions of our attachment act,(o) looks to and evidently sanctions this right or duty of the garnishee to bring the sum attached into court for the purpose of relieving himself from further responsibility and trouble. He may contest the claim made against him ; but, if he does so, the act declares he shall be liable to costs ; — whence it clearly follows, that by assuming the position of a litigating debtor he would, as in all other similar cases, be also chargeable with interest upon the debt. A garnishee may not only defend his own interests, as a mere neutral in the controversy between the plaintiff and defendant ; but he may also assume upon himself the character of an ally of the defendant. He is allowed to plead and defend his rights for him, and in his behalf (p) But if he thus contests the plaintifTs right to recover either as principal or ally in the controversy, the genius of our law, as well as the reason and justice of the case seem most strongly to require, that (m) Burk v. McClain, 1 H. &, McH. 236 ; Campbell v. Morris, 3 H. & McH. 535 ; Davidson's Lessee v. Beatty, 3 H. & McH. 594 ; Shivers v. Wilson, 5 H. &. J. 130. (n) Rex V. Wilkes, 4 Burr. 2549 ; Manro v. Almeida, 10 Wheat. 473 ; 2 Bro. Civil Law, 333.- (o) 1715, ch. 40, s. 4.— Q?) 1795, ch. 56, s. 4 ; Wilson v. Starr, 1 H. & J. 491. CHASE V. MANHAEDT. 345 he should be held answerable for the delay, and be charged with interests and costs. In this case Chase pleaded, or suffered to be pleaded nul tiel record, and nulla bona. He thus opposed the plaintiff's right to recover as principal and as ally in the controversy. He assumed the hostile attitude and position of a litigating debtor in every point of view. He comes now, therefore, with an ill grace into a court of equity to ask to be exempted from bearing the burthen of that loss which was the necessary and inevitable consequence of the position he had assumed. This same creditor had, just previously, to obtain satisfaction of this same debt, made a similar demand by attachment upon John H. Barney, who brought his debt into court and was thereupon dismissed mi/wu^ costs. Chase should have profited by the example. But, it is said, that the attachment placed Chase in the condition of a mere stake-holder ; and that a stake-holder is never charged with interest. Such, however, is not the case here, in point of fact. These parties have not consented, that Cliase should stand here between them, and keep this money as a mere stake-holder ; nor has the attaching creditor forced him to assume and continue in that position. Because, the court of justice, before which he was cited, was open and ready to relieve him from that situation, whenever he thought proper to ask its protection. If without having had the money attached in his hands, it had been demanded of him by two or more persons, each of whom claimed a right thereto in opposition to the other, he might have filed his bill of interpleader, and been relieved from the risk of paying it to either. But he could only ask for such relief on bringing the money into court ; for equity will in no case even listen to any such cause of complaint, so long as the party holds the money in his own hands, (g-.) Upon the whole then, it appears, that the rule laid down by the highest judicial authority of Pennsylvania upon this subject, is founded upon principles which have no existence in this State ; and that the reasons of it are at variance Avith many of the well established principles of our law. Consequently, however just and beneficial the rule may be there, it cannot be considered as deserving the least regard in this State. The case of Quynn v. West,{r) decided by the late General (q) 1 Mad. Chan. 174 ; Spring v. S. C. Ins. Company, S Wheat. 26S.— (>) 3 H. & McH. 124. 44 346 CHASE V. MANHARDT. Court of this State, it has been strongly urged sustains the posi- tion, that an attachment does not of itself in all cases stop the accumulation of interest during its pendency. On the other hand, it is contended, that this case as reported is obscure, contradictory, absurd, and cannot be law. Let us examine it. The case is this. — Rutland, in October 1786, obtained a judg- ment against West, which " was to be released on payment of je849 9s. 8d., with interest from the Zlst of October 1786 till paid, and costs. Mason having obtained a judgment against Rutland, for <£3234 ; on the 4th of August 1786, issued an attachment on his judgment which he laid in the hands of West on the said debt so by him due to Rutland ; and on the second Tuesday of Octo- ber 1788, Mason obtained a condemnation in the hands of West, of no more than the principal and costs mentioned in Rutland's judgment, leaving the interest thereon, from the 31st of October 1786 to the day of the condemnation, untouched. Upon this state of things the only question was whether Rutland could recover the whole interest during that time ; a part of which had accrued pend- ing the attachment. Upon which the court gave judgment for the plaintiff. Now it is said here is an apparent absurdity ; — because Mason's claim was large enough to cover the whole of Rutland's judgment including principal, interest, and costs ; and yet Mason had only the principal and costs condemned, leaving the interest ; that such a partial condemnation could not have been, because the law would not allow it. But there may be an attachment for part of a debt, which may be pleaded in bar pro tanto.{s) Why Mason attached only a part of this debt due upon Rutland's judgment does not appear ; but he might, and it appears did do so, and obtained a condemnation for the principal and costs only. And, consequently, the court appears to have correctly decided, that the attachment was a bar only pro tanto, to the amount covered by the condem- nation, and no more. It has been also urged, that after the recovery or payment of the principal, a creditor cannot sue for and recover the interest. But if a creditor receives or recovers his principal debt in any manner so as not thereby either expressly or tacitly to relinquish his claim to the interest then due, he may as rightfully sue for and recover the interest then due, as if it were so much of the principal debt (s) Com. Dig. tit. Attachment, G. ^ H. CHASE V. MANHARDT. 347 itself which he had suffered to remain in his debtor's hands ; for there is no more reason why the interest should not be recovered after the debt had been paid in a manner not to imply an abandon- ment of the interest ; thap that a party should not recover the mesne profits of land after he had obtained possession by means of an action of ejectment. (^) Upon the whole then, although it may be admitted, that this case of Quynn v. West has not been so fully and perspicuously reported as it might have been ; yet there is no just ground to charge it with absurdity, or to impeach the correctness of its prin- ciples in any way. By this decision it does most clearly appear to have been held, that Mason's attachment did not prevent the accu- mulation of interest upon i?i^^Za7irf's judgment during its pendency. There are no reasons given for this or any other of the positions, which are necessarily involved in the judgment the court pro- nounced. But as to the reason and propriety of a debt's carrying interest during the pendency of an attachment, I entirely concur with what has been said by the Court of Appeals of Virginia. " In all such cases," it is said, " the safe and sound doctrine is, that if the party, though restrained from paying, holds and uses the money, (and we must presume he uses, if he continues to hold it,) he ought to pay interest ; because the owner of the debt has a right to the interest ; because money is worth its interest ; and if the holder does not think so, he has always the privilege of bringing the money into court; and because, if the debtor could under this restraining process, hold the debt for years, without interest, it would offer a strong temptation to him, to stir up claims of this kind, and to throw all possible obstacles in the way of a decision of the questions raised. "(?i) I am, therefore, satisfied as well by reason and analogy, as by direct authority, that an attachment has not the effect and operation of suspending any claim for interest, which exists independently of that judicial proceeding ; and, consequently, that in this case Chase is properly chargeable with interest by virtue of his contract. It has been urged, that Manhardt obtained a judgment against Brydcn for more than he was entitled to. The court has not been (/) Creuze v. Hunter, 2 Ves. jun. 162 ; Snowden v. Thomas, 4 H. & J. 337 ; Dixon V. Parkes, 1 Esp. Rep. 110; TilJotson v. Preston, 3 John. Rep. 229; Johnston v. Brannan, 5 John. Rep. 2CS. — (w) Templeman v. Fauntleroy, 3 Rand. 447; Tazewell V. Barrett, 4 Heu. & Mun. 259 ; Hunter v. Spotswood, 1 AVash. 145. 348 CHASE V. MANHARDT. furnishecl with sufficient data to test the correctness of that judg- ment, even if it were now open to investigation. But it is stated in Manhardfs answer, and was not denied by Bryden, who w'as fully and actively represented, when the judgment of condemnation was obtained in the attachment case ; nor is it now denied by Brydeii's representative, who is a party to this suit, that Manhardfs judgment against Bryden amounted at that time to $9326 62. This matter must therefore be now considered as finally and con- clusively settled. Manhardt^s judgment against Bryden cannot now be questioned in any way ; particularly by this complainant as garnishee ; and in whose present bill there is no allegation which involves its validity and correctness. I therefore lay aside every thing that has been said upon that subject. There can be no doubt, that this court may set aside a verdict that has been obtained by surprise oV fraud, and grant a new trial. But, has there been any surprise or fraud in this case? By the docket it appears, that there was an appearance entered for the garnishee ; and, that two attorneys were noted in the usual manner as appearing in the defensive. It is certain, that one of them, John Purviance, had his name thus entered for the purpose of protecting the interests of Bryden, the defendant, and of Kyd, who were his clients. It is also certain, that he put in the pleas of mil fiel record, in defence of Bryden, and nulla bona in behalf of the complainant Chase ; and, that he had full, free and frequent con- versations with Chase, the complainant, respecting the attachment while it was depending ; who never once, in all that time, told him, that he. Chase, had any just grounds of defence for himself against the claim founded on his contract with Bryden. It is not distinctly shown for whom Lulh-er Martin, the other attorney, appeared. But it is clear, that they w^ere both willing, and either of them might have made for Chase any defence he might have instructed them to make. Indeed it appears, that interrogatories were propounded to him, as garnishee, which he answered; — and, consequently, that he not only had an opportunity to defend his interests in that cause, but was actually invited to spread his defence upon the record. Those interrogatories and answers are lost. The exceptions to the answers are, however, here ; and among other things they say, that Chase did not file the original papers; and, that it did not appear with sufficient certainty, whether the balance of the purchase money due to Bryden was due from him, {Samuel Chase,) or from the said Richard M. CJiase. ^ CHASE V. MANHARDT. 349 Hence it is very evident, that neither the original, nor a copy of his contract of the 26th March, 1812, could have been filed with his answers ; and, that he certainly did not in those answers state, as a ground of defence, that he could not then be considered as the debtor of Brydcn, according to the terms of that contract ; because it had not then been performed by Bryden on his part. The continuance at March, 1817, " to await the decision in a cause in chancery," alluded to a suit which had been instituted by Manhardt against Bryden and others, and is still depending in this court, to obtain an injunction to prevent Chase from paying or giving his notes to Bryden for the sum of $6000, which had been attached in his hands ; and also to obtain certain disclosures in aid of the attachment suit. But it does not appear, nor is it alleged, that it was founded on any special understanding or agreement with this complainant, or that he was, in any respect, misled by any confidence he placed in that entry as a continuing and binding agreement. On the contrary, he says, " that he relied upon the said: a:ttachment's being continued as the said injunction was then depending." But he does not allege, nor does it in any way appear, that the continuance of the injunction involved, or embarrassed, or withheld from him any defence he might have made as garnishee in the attachment case, or that in consequence thereof he did not make any defence which he otherwise would have made. The fact is, that the injunction from this court, and the attachment at law, both operated upon Chase, the garnishee, in precisely the same way ; the object of both was to prevent him from paying what he owed, to Bryden himself, and to have it paid into other hands. There is nothing which shows, that Chase was taken by surprise by any movement in either of those cases, or by proceeding in either pending the other. Much has been said about the fraudulent and collusive conduct of Manhardt, Bryden, and Kyd. But it is not in any manner shewn how any of their alleged frauds or misrepresentations could or did affect the complainant Chase. It is admitted, that Bryden was indebted to Manhardt ; and, that Chase was indebted to Bryden. Now, as the conduct of those persons did not in any way affect Chase, or charge him with more than he really owed Bryden, or enable Manhardt to recover more than he might lawfully claim of Cliase as the creditor of Bryden, — it is exceedingly difficult to conceive how there could exist any fraud of which Chase could 350 CHASE V. MANHARDT. have any just cause of complaint. Admitting every thing that has been said upon this subject to be true, it amounts to no more than this : — that Kyd and Bryden were disposed, if possible, to prevent Manhardt from having Chase's debt applied in satisfaction of his claim, on the ground, that it was not liable to be so applied, or that Kyd had obtained a prior assignment or lien upon it, and that Manhardt compromised matters with them in order to enable him, without further delay, to obtain some satisfaction by means of the attachment laid in the hands of Chase. It is true, that equity will in some cases relieve a party from the consequences of a fraud, which has been practised upon a third person. As, if the fraud practised upon Manhardt alone had by any consequence or recoil injuriously rested upon the interests of Chase, he might have asked and obtained relief from this court, (v) But in this case, the squib aimed at Manhardt did not reach, or at all affect Chase ; he, therefore, can have no cause of complaint whatever upon that ground. In fine I am perfectly satisfied, that Manhardfs judgment against Bryden cannot now be impeached in any way ; that in obtaining the verdict in the attachment case, Chase was not taken by surprise ; and, that there has been no fraud practised upon hina. But that there was a mistake in the judgment of condemnation obtained against him is absolutely certain. Indeed it is admitted, that to some extent a mistake had been made, which it was agreed should be corrected. The nature and extent of that mistake is now perfectly ascertained in the manner and upon the principles I have explained. Chase w^as accidentally and erroneously represented as being indebted to Bryden to the full amount of Manhardt'' s judg- ment against Bryden, when in truth the fact was not so. This mistake must, therefore, be now corrected as was agreed. The staying of proceedings at law, upon the ground that judgment had been by mistake obtained for more than was really due, is quite a common case, — one which is often presented to this court. In such cases the verdict is never disturbed ; or a new trial ordered. Charging Chase with interest from the 17th of January, 1813, when the debt became due, to the 13th of October, 1817, when the judgment of condemnation was rendered, it appears that the {v) Clifford V. Brooke, 13 Ves. 132 ; Chesterfield v. Janssen, 2 Ves. 156 ; Garretson V. Cole, 1 H. & J. 374. CHASE V. MANHARDT. 35I whole amount then due from him to Bryden was $7706, and no more, leaving an excess of $1620 62. For the one amount, the judgment will be suffered to stand ; — for the other, all further proceedings will be perpetually enjoined. The bill prays, that the papers stipulated for by the contract of the 26th of March, 1812, may be now delivered to the com- plainant. They have been brought in as exhibits referred to in the answer of the defendant David Hoffman; no objection has been made to their sufficiency; I shall, therefore, order them to be delivered accordingly. The defendants Purviance and Hoffman having been improperly and unnecessarily made parties, I shall dismiss the bill altogether as to them. Whereupon it is Decreed, that the judgment of condemnation, in the proceedings mentioned, obtained by Christian L. Manhardt against the complainant Samuel Chase, as garnishee of James Bryden, is hereby permitted to remain in full force and effect in all respects whatever to the amount of $7706 ; and, as to that amount the injunction heretofore granted is hereby dissolved ; — That as to the sum of $1620 62, the residue of the judgment, the injunction is hereby made perpetual ; — That the register make out and file in this case correct copies of all the original deeds referred to in the answer of the defendant David Hoffman ; and deliver the original deeds unto the complainant at any time he may demand the same, as the deeds specified and required to be delivered to him by his said contract, in the proceedings mentioned, bearing date on the 26th of March, 1812 ; — And that the complainant's bill of com- plaint as to the defendants John Purviance and David Hoffman, is hereby dismissed with costs ; — And that the other defendants pay unto the complainant his full costs as against them to be taxed by the register. 352 GIBSON V. TILTON. GIBSON V. TILTON. On a motion to dissolve an injunction, objections of every kind to the answer may be made, and are then in order ; and it is a general rule, that if the facts on which the equity of the injunction rests are denied, the injunction must be dissolved ; otherwise it must be continued to the final hearing. An atfidavit made in another State to an answer to a bill in this court, being an authentication called for by a tribunal here, is a part of the judicial proceedings of this State ; and is not such a judicial proceeding, of another State, as comes within the provision of the Constitution of the United States, and the acts of Con- gTess respecting the manner in which such proceedings shall be proved. The sending of commissioners to other States to have testimony there taken ; and, the having of answers in chancery, and the like, authenticated there, by affidavit or otherwise, has long been considered as one of the most common instances of the interchange of courtesies among the nations of Europe ; and is a kind of comity which should be liberally extended among the States of this Union. Although a person, who so testifies, or makes an affidavit abroad, cannot be proceeded against criminally here ; yet a party here, who should knowingly use such spurious evidence, might be punished here for practising an imposition upon the court. This bill was filed on the 2d of September, 1826, by Fayette Gibson against James Tilton, in which it is alleged, that owing to various circumstances, the defendant Tilt on had recovered a judg- ment at law against the plaintiff Gibson^ for a large sum of money which he had discovered was really and in equity not due to him. Whereupon it was prayed that an injunction might be granted to stay execution, and for general relief, &c. An injunction was ordered as prayed ; — after which the defendant put in his answer, and gave notice of a motion to dissolve the injunction. 23rf July^ 1827. — Bland, Chancellor. — This motion for a dis- solution of the injunction standing ready for hearing, and the solicitors of the parties having been fully heard, the proceedings were read and considered. It appears, that the defendant is a resident of the State of Dela- ware, where, after subscribing his name to his answer, he swore to its truth, which acts are certified by the judge in these words : — " Sworn and subscribed this twenty-sixth day of April, A. D. 1827, before Kensey Johns, Chief Justice of the Supreme Court of the State of Delaware." To which is subjoined a certificate, in the usual form, by the clerk of New- Castle ^unty, in the State of Delaware, that Kensey Johns was then Chief Justice. It was objected, that the answer was insufficient ; was not properly sworn to ; and that the certificate was not in the form prescribed by the act of Congress of the 26th of May, 1790, ch. 11, GIBSON V. TILTON. 353 prescribing the mode of authenticating records and judicial pro- ceedings from the other States of the Union. In answer to which it was urged that the answer was entirely sufficient, and that the latter objections could not now be made. On the hearing of a motion to dissolve an injunction, objections of every kind to the answer may be made, and are then in order. Because, the motion itself, in its very nature, is founded upon the correctness, and sufficiency of the answer in every particular. Hence the plaintiff may, on the very day of hearing the motion, file excep- tions to the answer, and have them then heard and decided upon. The defendant can have no cause to complain of sur- prise ; because, by his motion he calls upon the plaintiff to show cause why, after having well and sufficiently answered the bill, the injunction should not be dissolved. And, having thus planted himself upon the sufficiency of his answer, at that time, and for that purpose, he stands pledged to sustain it in all respects ; or he must fail in his motion. (a) All the objections that have been made are, therefore, now in season and must be decided upon. The act, relied upon to show the insufficiency of the certificate, is one of those laws passed by Congress in pursuance of the power f delegated to them, by the first section of the fourth article of the Constitution of the United States. That delegation of power enables Congress to prescribe the manner in which the public acts, the records and the judicial proceedings of every other State shall be proved, and the effect thereof, in this State. But, the affidavit, and certificate appended to this answer are not in any sense public acts, records, or judicial proceedings of Delaware. They are parts of a judicial proceeding of Maryland; such as have been called for, and authorized by the usage and law of Maryland, not of Delaware. According to the long established practice of this court, in vari- ous cases, some of which have been recognised by legislative enactments,(6) it will act upon the evidence, derived from affidavits taken in a foreign country. Prior to the revolution a dedimus was always sent to obtain an answer from a defendant resident in any of the neighbouring colonies or in a foreign State,(f) and now com- missions are often sent to other States of this Union, (ri) and into (a) Eden, Inj. 78 ; Alexander v. Alexander, MS., 13th December, 1S17.— (6) 1797, ch. 114, s. 5.— (c) Chan. Pro. lib. D. D. No. J. folio 6, .59, &c.— (rf) Hunt v. Wil- liams, Taylor's Rep. 318. 45 354 GIBSON V. TILTON. foreign nations to take testimony where the commissioners must be sworn, by some magistrate of the place, before they can proceed to act. So an affidavit verifying the truth of an answer, made before a magistrate duly authorized to administer an oath in the country where the respondent resides, has long been admitted as sufficient. The acts of foreign magistrates, in all such cases, are however considered as having been done under the authority of this court ; and as deriving their sanction from the judicial power of this State, not from that of the foreign State. For, standing unconnected in the foreign State with that to which they relate here, they would be there wholly unintelligible and inoperative. This interchange of courtesies, in aid of judicial proceedings, seems to be as com- mon among the nations of Europe, as it is w^ith the several States of our Union. (e) And in all such cases it would seem, that the comity of nations is carried so far, that the public functionaries will not only suffer the commission to be executed by the commis- sioners to whom it is sent, but if necessary, will compel a witness to appear and testify, so that his deposition may be taken, and returned to the tribunal of the foreign nation whence the commis- sion emanated, (y) The tribunals of this State have often found it necessary to ask the assistance of the judicial power of the other States of our Union or of foreign countries to procure testimony or obtain the means of administering justice. And in doing so those courts alone who ask or accept such assistance can have the authority to regulate its nature, form and extent. And they have accordingly laid it down as a general rule, that such acts, although varying in form in each case according to circumstances, must yet contain all the requisites essential to such acts when done here.(g-) But the court, in such cases, is not called on to give any faith, or credit, or to pass any opinion upon the effect of a judicial proceeding of anotJier State. If it were, then that matter having been regulated by the Constitution and laws of the United States, it certainly would be bound to submit to those regulations so far as they applied. But the question, how far this court will ask for, or accept of affidavits taken in another State, as the medium of that (e) Dalmer v. Barnard, 7 T. R. 251 ; Ex parte Worsley, 2 H. Blac. 275; Omealy V. Newell, 8 East, 364 ; Hornby v. Pcmberton, Mosely, 5S ; Gason v. Wordsworth, 2 Ves. 325, 336 ; Garvey v. Hibbert, 1 Jac. &, Walk. 180; Brahara v. Bowes, 1 Jac. & Walk. 2%.— (/) Young v. Cassa, 3 Eccle. Rep. 417 ; Mitchell v. Smith, 1 Paige, 237 ; Mitf. Plea. 186, notes.— (g-) Tidd, Pra. 156. GIBSON V. TILTON. 355 evidence without which it will not act, is one of a totally different nature from that, which involves the verity or effect of a judicial proceeding, which had been originated and completed entirely in another State ; and with the formation of which it could have no concern. The Constitution, and act of Congress of the United States, therefore, can have no bearing upon the subject now under consideration. With regard to the affidavit to this answer, it is certainly not couched in phraseology as full and exact as it ought to have been. But it is conceived to be expressed in terms sufficiently clear and strong to sustain a prosecution for perjury, if it had been made in this State, and the answer had been found to be false in any material particular. And although, as it would seem, no such prosecution could be sustained here upon a false oath taken in anotlier State however correct and positive the affidavit might have been ; yet the parties may, should the answer turn out to be false or the affidavit be ascertained to be spurious, be punished for prac- tising an imposition on the court.(/i) These preliminary objections being removed, it appears, on a careful consideration of the answer, that it is, in all respects, suf- ficient ; and that it has completely sworn away all the equity of the complainant's bill. I know of no such rule as that which was insisted on by the plaintifTs solicitor; that where XYve facts on which the complain- ant's equity rests are alike within the knowledge of both parties ; and the allegation of them by each in an opposite bearing is equally positive, the injunction must be continued. The rule is, that on a motion to dissolve, the facts on which the plaintifTs equity rests must be admitted or not denied, or he cannot obtain a continuance of the injunction. But if they are positively denied by the answer the injunction must be dissolved. (i) There may be exceptions to this rule, but this case is not one of them. Whereupon it is ordered, that the injunction heretofore granted is hereby dissolved. After which testimony was taken and the case brought before the court on a final hearing ; when it appearing, that the plaintiff had failed to sustain his case by proof, by a decree passed on the 4th of November 1829, the bill was dismissed with costs. (A) Omealy v. Newell, 8 East, 372.— (t) Eden, Inj. 86. 356 DORSEY V. CAMPBELL DORSEY V. CAMPBELL. A purchased of B a tract of land, for which A stipulated to pay in bonds and notes endorsed by him, and for the eventual solvency of which he should be responsible. Held that A must deliver to B such choses in action within a reasonable time ; but could not do so after he had filed his bill against B, for a specific performance : And that B must use due diligence in collecting the choses in action so put into his hands ; and should be allowed all proper expenses, to be deducted from the sums collected. On a bill for specific performance, where the agreement is admitted or proved as set forth in tlie answer, no cross bill is necessary, but a decree may be passed against each party according to the extent of his liability — against the one directing him to convey the estate ; and against the other ordering him to pay the purchase money. The mode in which a purchaser of land under a fieri facias from this court may obtain possession, as directed by the act of 1825, ch. 103. This bill was filed on the 16th of June, 182.3, by Clement B or sey against James Campbell and Johi Ritchie^ to enforce the specific performance of an agreement. The bill states, that Henry Anderson had conveyed to the defendants two tracts of land in Charles county, which lands they had sold and contracted to convey, clear of all incumbrances, to this plaintiff; that as a means of making payment for the lands, it was agreed, that the plaintiff should assign to the defendants certain debts and choses in action ; that he made the assignments accordingly, upon which the defendants had made collections and recovered judgments to the whole amount of the purchase money ; and yet, that they had refused to execute and deliver a deed conveying the legal title of those lands to the plaintiff. Whereupon the plaintiff prayed, that the defendants might be ordered to convey the lands according to the terms of the agreement, and for general relief. The defendants Campbell ^ Ritchie, on the 6th of December, 1823, put in their answer, in which they admit the contract as stated in the bill ; but deny, that they had collected, or were then able to collect, the whole amount of the purchase money from the choses in action which had been assigned to them ; that they had offered to convey, and were then, and always had been ready to execute a conveyance of the legal title, on receiving the whole amount of the purchase money ; and that some of the choses in action, which had been assigned to them, and from which they had been utterly unable to collect any thing, they then held, and were ready to re-assign to the plaintiff. DORSEY V. CAMPBELL. 357 After which the parties, by agreement, admitted sundry facts and some exhibits which had been previously filed ; and the case was brought before the court for final hearinfj. lAth January, 1825. — Blanp, Chancellor. — The arguments of counsel having been heard in this case, the proceedings were read and considered. It appears, that Campbell 4i* Ritchie being seized of two tracts of land, sold them, clear of all incumbrances, to Dorsey, for the sum of fourteen hundred and sixty-two dollars and fifty cents, to bear interest from the eighth day of June, 1815, when the purchaser was put into possession, until paid. So far the case admits of no difficulty. As to the manner in which Dorsey was to make payment to Campbell Ss Ritchie, the receipt or agreement of the 12th of July, 1816, is expressed in these words : " And for which they are to be paid in bonds, notes, and other claims endorsed by C. Dorsey, Esq." And the assignment of the same date, made by Dorsey, is expressed in these words : "I hereby assign unto Henry Chapman, Esq., for the use of Campbell ^ Ritchie, the above causes of action, which are supposed to be correct, with an understanding and agreement, that I am responsible for their eventual solvency." The general expressions, "to be paid in bonds, notes, and other claims," without any distinct specification, can only be understood as an indication of the character of the fund which was to be placed by the plaintiff under the legal command of the defendants to the full amount of the purchase money. If Dorsey had failed or refused to place in the hands, or at the disposal of Campbell &,' Ritchie, choses in action to the full amount of the purchase money, then he would have been liable for the whole, or ^;ro taiito, on the ground of a non compliance with his contract. If there had been nothing added to this general specification of the fund, out of which pay- ment was to be made, the contract might have been considered in the light of an exchange or barter of one article of value for another, deemed to be of equal value, — a conveyance of land in consideration of an assignment of choses in action only, without the further responsibility of the assioTior. But the contract informs us, that the payment was to be made, " in bonds, notes, and other claims, indorsed by C. Dorsey, Esq. ;" and also that Dorsey expressly says, " I am responsible for their eventual solvency. ^^ The fair, clear sense of these expressions removes everj^ difficulty. Dorsey was to have the privilege of 358 DORSEY V. CAMPBELL. paying out of a designated fund, to be placed in the hands, and at the disposal of Campbell 4* Ritchie ; but he was to warrant, that, with due and proper diligence on their part in endeavouring to make it available, it would be ultimately productive to the w^hole amount of the purchase money. It does not appear, that Campbell fy Ritchie are chargeable with any want of diligence in endeavour- ing to collect the money due on the choses in action transferred to them. (a) It would seem, from the expressions of the contract, that Dorsey was to be allowed a reasonable time to assign, and deliver to Campbell ^ Ritchie, or their agent, choses in action, out of which they were to collect the amount stipulated to be paid to them ; but that time has elapsed ; and indeed, Dorsey, by bringing this suit has virtually waived the privilege of referring the defendants for payment to any choses in action in addition to those he had already transferred to them. This case, then, stands thus : — Dorsey must be charged wnth the sum of fourteen hundred and sixty-two dollars and fifty cents, with interest from the eighth day of June, eighteen hundred and fifteen ; first deducting therefrom the amount of the incumbrances on the land ; that is, the judgment against Anderson, the former owner, and also the taxes due when Dorsey got possession. Dorsey is then to be credited with the sums actually received by Campbell ^ Ritchie from the choses in action transferred to them. And, since the object of this mode of payment was merely to prevent Dorsey from being called on until Campbell ^' Ritchie had used every proper exertion to make the specific funds available, Dorsey is only to be accredited with the net proceeds of the choses in action received by Campbell Sf Ritchie, or their attorney, after allowing every legal discount or set off, and expense of collection on each one. No expense or charge, however, is to be allowed for paying over any money so received, from the attorney of Camp- bell ^ Ritchie to them. But the credit is to be given to Dorsey as a payment on the day on which such proceeds were received, either by Campbell 8f Ritchie, or their attorney. If any of the debtors chargeable by the choses in action assigned by Dorsey, have been ascertained to be wholly or partially insolvent, he must be charged to that amount. With these explanations and determinations as to the principles (a) Boyer v. Turner, 3 H. 8t J. 285. DORSEY V. CAMPBELL. 359 of this case, it is hereby referred to the auditor, with directions to state an account accordingly, preparatory to a final decree. In obedience to this order, the auditor, on the 16th of September, 1825, made a report, in which he stated the amount of the balance then due from the plaintiff to the defendants ; to which the plaintiff filed no exceptions. 29th March, 1826. — Bland, Chancellor. — This case standing ready for hearing, and having been submitted, the proceedings were read and considered. This is a bill for a specific performance of a contract between the plaintiff and the defendants. From the agreement, as stated and admitted, it appears, that each party was bound to perform something for the benefit of the other. The plaintiff bound him- self to pay to the defendants the whole amount of the purchase money ; and the defendants bound themselves, on being so paid, to convey to the plaintiff the two specified parcels of land. It now appears that a part of the purchase money is still due ; and that no conveyance of the legal title has been yet executed and delivered. In cases of this kind, according to the ancient course of the court, it was necessary to file a cross-bill, in order that each party might be decreed to perform that to which he had bound himself But this circuitous and expensive course has, of late, been dispensed with in all cases where the plaintiff, by his bill, offers to perform the agreement ; and it is admitted, or set out in the answer, and proved as thus set forth by the defendant. No cross-bill has for some time past been deemed necessary, either in England or in Maryland, in such cases ; but a decree is passed in favour of each party for that to which he is entitled ; upon the ground, that the whole matter in controversy has thus been well and sufficiently brought before the court, put in issue, and considered by such an original bill, answer and proofs. (6) (6) Fife V. Clayton, 13 Ves. 546 ; Higginson v. Clowes, 15 Ves. 525. Watkins v. Watkins. — This bill was filed on the 7th of November, 1798, by Tobias Watkins, an infant, by William Kilty his guardian. It states, that some time before the year 1770, an agreement was entered into between the late father of the defendant with the late father of the plaintiff, whereby the defendant's father con- tracted to convey to the plaintiff's father, a certain tract of land, and accordingly put the plaintiff's father into possession, which has been held by him and the plaintiff, his only son and heir, ever since ; and that the purchase money has been paid, but the legal title has not been conveyed ; that the defendant brouglit an action of eject- ment for the recovery of the land, and threatens to turn the plaintiff out of possession. 360 DORSET V. CAMPBELL. Whereupon it is decreed^ that the auditor's report be, and the same is hereby ratified and confirmed. And it is further decreed, Prayer for a specific performance, and that the defendant may be restrained by injunction from proceeding further at law. An injunction bond was filed. Injunction granted. The defendant answered, and proofs were taken, &c. 21th March, 1802. — HaxsoiV, Chancellor. — This cause being submitted on the arguments in \vriting of the counsel, the bill, answer, depositions, with the said arguments and all other proceedings, were by the Chancellor read and considered. Some of the material facts stated in the bill are neither admitted by the answer, nor established by the depositions. The circumstances of this case are indeed peculiar; and a dause recently decided in the High Court of Appeals, without explaining the principles of their decision, has rendered uncertain to the Chancellor what principles are to govern in cases where the performance of an old agreement is sought in this court. He would certainly be guided by the opinion of that court, if he knew it. Upon the whole he conceives, that the best thing he can do for the interests of both parties, and to render justice, and to put an end to controversy, is to recommend a reasonable compromise. He then proposes a decree by consent, to the following effect, viz. — 1. The injunc- tion shall be made perpetual ; and the defendant shall convey to the complainant and his heirs, all his right, title, interest and estate in and to the land which is the subject of contest. — 2. The complainant, on or before the first day of next October term, shall bring into court, to be paid to the defendant, the sum of one hundred and sixty- six pounds, thirteen shillings and four pence current money. — 3. The defendant shall not be compelled to make the said conveyance until the bringing in or payment, or levying of the said sum. And if the said money be not brought in, as aforesaid, the -defendant, at his election, may either have the process of this court, on application to the Chancellor, to enforce the payment of the said sum, with interest, from the said first day of October term, or shall be at liberty to have a writ or process from the court of law to obtain' possession of tlie land, by him recovered by his ejectment, as stated in the bill, the injunction aforesaid notwithstanding : and the complainant shall be prohibited from any relief in this court, on the agreement stated in the bill. 4. Each party shall sustain his own costs in this court and in the court of law. On the application, by petition, at any time, of either party, who shall hereby refuse to accede to this recommendation, the Chancellor, without del&y will proceed to decree, accordiog to the best of his judgment and conscience. The defendant Nicholas Watkins assented to the terms proposed by the Chancellor. Upon which the following decree was passed. ZQth August, 1802. — Haxsox, Chancellor. — The defendant having fully acceded to the recommendation of the Chancellor, and pressed him to decree, he conceives, that there is no valid objection against decreeing according to the recommendation, although the complainant hath not acceded to it. It is thereupon Decreed, that the injunction in this cause issued shall be, and it is hereby declared to be perpetual ; and that the defendant, by a good deed, to be acknowledged and recorded legally, convey to the complainant Tobias and his heirs all his the said defendant's riglit, title and interest in and to the land in the bill men- tioned, part of a tract called " Friends' Choice," as in the bill described. It is further decreed, that the complainant, on or before the first day of next October term, shall bring into court, to be paid to the defendant, the sum of one hundred and sixty-six pounds thirteen shillings and four pence current money. Provided nevertheless, that the said defendant shall not be compelled to execute the said deed until the bringing DORSEY V. CAMPBELL. 3g2 that the complainant Clement Dorsey do, on or before the twentieth day of April next, pay to the defendants Campbell <^' Ritchie^ or in as aforesaid, or payment to him, or the le\ying of the said sum by execution ; and provided also, that if the said money be not brought in as aforesaid, the defendant at Lis election shall either be entitled to the process of this court, on application to the Chancellor to enforce the payment of the said sum, with interest from the said first day, or shall be at liberty to have a writ or process from the court of law to obtain possession of the said land by him recovered, as stated in the bill, the injunction aforesaid notwithstanding. And the complainant shall be precluded from any relief in this court on the agreement stated in his bill. Each party shall sustain his own costs in this court and in the court of law. Long v. Gorsuch. — This bill was filed on the 9th of September, 1802, by John Long against Richard Gorsiich; after which it was amended, introducing some now matter, and making John Gorsuch also a defendant. From the original and amended bill it appears, that on the Sth of November, 1800, the plaintiff Long entered into articles of agreement with the defendant Richard Gorsuch, by which it was stipu- lated, that Long should, in consideration of $1300, convey to Richard Gorsuch a house and lot in the city of Baltimore ; and that Richard Gorsuch should convey to Long one hundred and fifty acres of land in Baltimore county, and all the giain then growing on it valued at sixty dollcrs ; and one cow at fourteen dollars ; and at the end of twelve months Richard was to pay Long the further sum of twpnt}--six dol- lars ; which was to be in full pa}'ment for the specified coniideration of thirteen hun- dred dollars. But if the tract of land should measure more than one hundred and fifty acres, then Long agreed to pay at the rate of eight dollars per acre for all above that quantity. And it was further agreed, that each of the parties w^as to put the other into possession. The bill alleges, that possession had been exchanged and given as agreed upon ; but that the defendant Richard had, in fact, no more than a mere equitable title at most, and that the legal title to the land was then in his father the defendant John Gorsuch, who had been privy to the contract, and with a full knowledge of it, had stood by, knowing of the valuable improvements made by the plaintiff, without giving him notice, that he John then held the legal title. Upon which the bill prayed for a specific performance of the contract, and for general relief The defendants by their answers admitted the contract as set out, and averred, that they were then competent, ready and willing to make a good legal title to the tract of land sold ; and in all respects to comply with the contract on the part of Richard Gorsuch ; and prayed, that the plaintiff might be compelled to convey the house and lot as stipulated, and to pay for the excess in the tiact of land accordin"- to the terms of his agreement. A commission was issued and proofs taken; and a sun'ey was ordered, which was executed, and a certificate and plot returned showing the number of acres contained in the tract of land lying in Baltimore county ; after which the case was brou"-ht on for a final hearing. 18//i March, 1815.— Kilty, Chancellor.— T\\\=i suit being then on the trial docket was submitted at December term last by tlie defendant on an abstract filed. It appears thatthc price of the lot in Baltimore, viz. .fJlSOO, was to be made up by land in Baltimore countj', estimated to contain 1-50 acres, and (o amount to $1200 ; and the other $100 in wheat in the ground, a cow, and $26 in money. And for every acre exceeding 150, Long was to pay Gorsucli at tlic rate of eight dollars per acre. The bill prays for a conveyance of the lands, or in case a good title can- 46 362 DORSEY V. CAMPBELL. bring into this court, to be paid to them, the sum of eight hundred and twenty-two dollars and seventy-eight cents, with interest thereon from the first day of December, 1822. And it is further decreed^ that the said Campbell and Ritchie do, not be obtained, or Inere should be a deficiency, that the $1300 may be paid back. As the proceedings stand under the amended bill, the Chancellor does not perceive, that there is anv defect of title, but is of opinion that justice may be done to the parties by decreeing mutual conveyances, and also by compelling the complainant to pay for the excess. A plot has been returned under the order of the court, by which the excess appears to be 62 acres, making at $S, $-i96. From which the $26 agreed on being deducted the sum due is $470. No exception has been made to the survey so returned ; and therefore it is taken as tlie proper evidence for ascertaining the quantity. The complainant Long, having had the use of this excess of land, a claim for interest might on that account be made, but inasmuch as Gorsuch did not take any measures to have the land surveyed, and difficulties aiose as to the title, it is deemed improper to allow such interest. It is thereupon decreed, that the complainant, John Long, do on or before the tenth day of April next, pay to the defendant Richard Gorsuch, or bring into this court to be paid to him, the sum of four hundred and seventy dollars, and that he pay legal interest on the said sum from the said 10th of April 1815, if the principal should not then be paid. And also that the said complainant John Long, do by a good and sufficient deed to be executed and acknowledged according to law, convey to the defendant, his heirs or assigns, all that messuage or tenement in the agreement exhi- bited, dated the 8th of November, 1800, mentioned lying and being in that part of the city of Baltimore, called Fell's Point, fronting thirty feet on Anne street, and sixty feet on Lancaster alley, thence with the division line of said tract thirty feet, £ind thence with a straight lino to the fir.st place of beginning of the first thirty feet. And it is further decreed, that the defendants, Richard Gorsuch and John Gorsuch, do by a good and sufficient deed to be executed and acknowledged according to law, convey to the complainant John Long, in fee simple, two hundred and twelve acres of land in Baltimore county, known by the name of Charles' Mistake, and the Resurvey on Cockpit, the same being the land mentioned in the agreement of the 8th of November, 1800, as containing 150 acres, together with the excess of 62 acres, appearing on the survey returned to the court, the part called the Resurvey on the Cockpit, being called therein Ellis' Folly. The said conveyance to be made on the payment or bringing in of the sum of 470 dollars, with the interest thereon as herein before decreed. The parties respectively to pay their own costs. A copy of this decree having been served on the plaintiflf as then required by the act of 1785, ch. 72, s. 25, and the amount not having been paid by him ; on the petition of the defendant Richard Gorsuch, a fieri facias was issued in his favour, against the plaintiff on the 31st of August 1816, which was returned by the sheriflf" of Baltimore county, nulla bona. The act of 1785, ch. 72, s. 21, declares, that in all cases tlie defendant may exhibit interrogatories to the plaintiff, which shall be answered by him, &c. A similar enactment in Kentucky has been so construed, that such interrogatories are in all respects regarded as a cross bill, and as superseding the necessity of filing such a bill as well in cases, like this, for a specific performance as in all others. Wilson v. Bod- ley, 2 Lin. Rep. 57. DORSET V. CAMPBELL. 353 by a good and sufficient deed to be executed and acknowledged according to law, convey to the said complainant Clement Dorsey, in fee simple, the two parcels of land called St. Clair and Recom- pense, lying and being in Charles county, and sold and conveyed by Henry Anderson to the said Campbell §• Ritchie^ and subse- quently sold to the said Clement Dorsey by the said Campbell Sf Ritchie. The said conveyance to be made on the payment or bringing in of the sum of $822 78 with interest from the 1st of December, 1822, as aforesaid. Upon this decree a fieri facias was issued on the 16th of November 1826, in favour of the defendants for the sum decreed to them against the plaintiff, which was levied on the lands speci- fied in the decree ; and they were sold and purchased by the soli- citor of the defendants for their use for the sum of $710. After which on the 19th of January, 1828, the defendants filed their petition, stating these circumstances, and thereupon prayed, that the possession of the lands might be delivered to them. 2\st January, 1828. — Bland, Chancellor. — The petition of the defendants having been submitted without argument, the proceed- ings were read and considered. It appears that the fieri facias, by virtue of which the land was sold, was returnable to March term 1827; but was not actually returned until the first day of September term of that year ; and this application to have the possession delivered has not been made until after the end of the term then next following, or December term, which closed on the 15th of the present month. The authority of this court to cause the possession of land, sold under its decree, to be delivered to the purchaser thereof, under certain circumstances, cannot be controverted ; and the mode of proceeding in such cases has been well established.(c) But this (c) Dove V. Dove, Dick. 617 ; Same Case, 1 Bro. C. C. .375 ; Stribley i-. Hawkie, 3 Atk. 275 ; The Commonwealth v Ragsdale, 2 Hen. &, Mun. S. McKo.MB V. Kankey. — 20th March, 1807. — Kilty, Chancellor. — The general power of the Court of Chancery to issue an injunction, directing possession to be delivered, is sanctioned by the practice in England and by our acts of assembly. The decree for possession and injunction is a process demandable of ris:ht as much as an attachment or other execution, and ought not to be refused where the power is considered to exist. An application for possession in such cases is founded on the general powers of the court, and on the act of 1785, ch. 72, s. 25, which provides that the Chancellor may cause by injunction the possession of the estate and effects demanded by the bill and petition, and whereof the possession or a sale is decreed to be delivered to the plaintiff or otherwise, according to the terms and import of such 364 DORSET V. CAMPBELL. is not the case of a sale of land under a decree. The relief which the petitioners seek can only be obtained according to the course of the common law, or in the manner prescribed by the late act of assembly, (fi) This is the first application which has been made to the Chan- cellor to enforce the delivery of possession according to the provi- sions of this act. It is declared, that whenever any lands shall be sold by virtue of any process of execution from the Court of Chan- cery ; and the debtor named in the process, or any other person holding under such debtor by tide subsequent to the date of the decree shall be in actual possession of the lands so sold, and shall fail or refuse to deliver possession of the same to the purchaser thereof, the court, on the application of the purchaser, and on no good cause having been shewn to the contrary by the said debtor, or other person concerned within the first four days of the term next succeeding that to which said process was returnable, shall issue a writ in the nature of a writ of habere facias possessionem^ &c. commanding the sheriff to deliver possession of the said lands decree, and as the nature of the case may require. Under which last part of the clause the injunction may be modified to suit the particular case. In this case the lands had been sold to satisfy a mortgage. Belbre the bill was filed, but after the njortgage was made, the possessor liad leased the lands of the mortgagor, for a term of years yet unexpired, he had covenated to erect a mill which he had built, and alleged that he besides made other permanent improvements. He objected that he ought to have been made party, that he ought to be allowed for his lasting improve- ments, and tiiat having obtained the lease without notice of the mortgage, he had a right to hold possession. But the purchaser taking the title of both plaintiff and defendant, has obtained a right paramount to that of this occupying lessee who claims under the defendant, who could give him no right in opposition to that of the mort- gagee whose deed had been duly recorded. This lessee must seek reimbursement for his improvements and otlier losses fi-om his lessor in whose place he stood. "Whereupon it is ordered, that the possession be delivered ; and that an injunction be JLSSued accordingly. Chaplixe v. Chapline. — 12//i July, 1810. — Kilty, Chancellor. — The Chancel- lor has not fully made up his mind as to the power of the court to grant the injunc- tion herein prayed ; but supposing it to exist, he is not satisfied that it would be proper to exercise it at this time when it would be attended with the loss of the crop growing on the land. But it is ordered tliat an injunction be issued, in the manner which will then be directed, unless cause be shewn, or appear to the contrary during the first four days of September term next : provided a copy of this order be served, &c. before the 15th August next. No suffif ipnt cause having been shewn, an injunction was ordered on the 5th of October following. (i) 1825, eh. 103; 18:31, ch. 41. DORSEY V. CAMPBELL. 3^5 to the purchaser thereof; without any saving or exception as to the then growing or unfinished crop of the occupying tenant, which, in favour of agriculture and for the benefit of the public, is almost always made by this court as well where the land is directed to be delivered by the decree itself to a party, as where it is ordered to be delivered to a purchaser from a trustee who made sale of it under a decree. (e) This summary mode of proceeding by a purchaser to obtain the possession of lands which he has bought at a sale made by virtue of an execution issuing from the Court of Chancery, is thus specially and particularly described. And the time for showing cause why he should not be thus put into possession, is limited to the first four days of the term next succeeding that to which said process was returnable. This application has, therefore, been made according to the manner and after the time allowed for showins: cause, for it is not made necessary for the applicant to call upon the occupant to show cause, as the public sale is assumed by this law to be a sufficient notice to him of the peril in which he stands ; and the first four days of the term next succeeding that to which the (e) Rawlings ik CaiToll, ante, 75 ; Wren v. Kirton, 8 Ves. 502 ; Sugden, Vend. & Pur. 42; Gland's Case, 5 Co. 116; Co. Litt. 55, b. Wright v. Wright. — 1716. — Decreed, that the defendant convey to the com- plainant, John Wright and his heirs, the land in dispute on his or their paying the defendant forty pounds sterling by good bills of exchange ; and that she have liberty to finish the crop now upon hand ; and that the said John Wright enter thereupon by Christmas day, but not to disturb her in the use of the houses until she has fin- ished the shipping and packing the crop, and the use of Uie quarter in the interim. aian. Records, lib. P. L. folio 292. Taylor v. Coleoate. — This was a creditor's bill filed on the 25th of March, 1803, by two of the creditors of John Colegate, deceased, against his six children and heirs, five of whom were infants. The bill states, tliat, being indebted, he died without leaving a sufficiency of personal estate to pay his debts ; but that he held an equitable interest in certain parcels of land, which it was prayed might be sold to pay his debts. The defendants answered, and a decree was passed in the usual form, directing a sale to be made. After which Elizabeth Colegate, the widow of the deceased debtor, filed her peti- tion, in which, among other things, she stated, that she then, 12th May, 1804, had a quantity of wheat and rye growing on the land ; which she had, by her own personal labour and the assistance of her neighbours, contrived to put in the ground the then last fall ; that she apprehended the trustee would sell her grain then gi-owing, with the land ; whereupon she prayed relief, &c. \2th May, 1804.— HANso.v,CTance//or.— On reading the petition of Elizabeth Cole- gate, the Chancellor thinks proper to declare, that it was not the intent of his decree, that the crop growing on the land of John Colegate should be sold with the lands ; and that tlie trustee ought to announce to purchasers, tliat tlie crop is excepted.— Chancery Records, 1304, p. 151. 366 HOWARD'S CASE. execution under which the sale was made was returnable, is taken to be a sufficient allowance of time to provide for his safety. It is thereupon Ordered, that a writ in the nature of a writ of habere facias possessionem issue as prayed, according to the pro- visions of the act of Assembly in such case made and provided. A writ of habere facias possessionem was accordingly issued and a return made upon it by the sheriff, that Mr. Wills, as agent of Campbell fy Ritchie, had been put in possession. HOWARDS CASE. A direction by a testator in his will, that his estate shall be valued and divided among his devisees by persons to be appointed by the Chancellor, amounts to no more than saying, that a partition may be obtained by bill in chancery ; it cannot autho- rize a judicial proceeding ex parte by any of the devisees. The recommendations of the parties and their solicitors may be heard as to the persons most suitable to be appointed commissioners to make partition of the estate. George Howard and Benjamin C. Howard, the sons and execu- tors of John Eager Howard, deceased, by their petition, filed on the 16th of November, 1827, stated, that their father had, by his last will, made on the 9th of October, 1827, devised his real estate to be divided among his descendants, as therein set forth ; that they had made some progress in the payment of the debts of the deceased ; and that although they had not fully satisfied all his creditors, yet as from the great difficulty in making a division of a large estate, situated as was that of the deceased, much delay must arise, they had deemed it advisable to apply, at once, for the appointment of commissioners, who might commence immediately to make the necessary preparatory examinations, &c. Whereupon they prayed, that commissioners might be appointed, &c. So much of the will of the late Johi Eager Howard as is mate- rial to this case, is in these words : " It is my will and desire, that all my real estate which may remain after the payment of my debts, should be valued by persons to be appointed by the Chancellor of the State of Maryland ; in which valuation shall be included all the real estate which I may at any time heretofore have conveyed to any of my children ; rating the same at its present value, and HOWARD'S CASE. 3g7 deducting therefrom the value of the improvements which have been made upon said property during its possession by my said children, or the possession of any other person under them ; and that upon such valuation, the whole shall be divided by the persons to be named as aforesaid, into eight equal shares or parts, whereof each of my children, viz. George, Benjamin C, William, James, Sophia now Sophia Read, and C/mrles, is to have one part, to them and their heirs for ever ; and my grandchildren, John Eager Howard, the son of my deceased son John, and James Howard McHenry, the son of my daughter Juliana McHenry, now deceased, one share each to them and their heirs for ever ; subject, never- theless, as to the two last mentioned devises, to the following conditions, viz. that if either of my said grandchildren John Eager Howard, or James Howard McHenry, should die before arriving at the age of twenty-one years, then the share of such grandchild so dying is to go and revert to such of my children and grandchildren as may be alive at the death of such grandchild, in equal parts to them and their heirs for ever." " In cases where I may have given bonds of conveyance for real property which I may have sold or contracted to sell, it is my will and desire, that my executors should be, and they hereby are fully authorized to execute all necessary deeds to complete said contracts." 11th JVovemher, 1827. — Bland, Chancellor. — It would seem, that the devisees of the residuum of the testator's real estate take in the manner and upon the terms specified, as tenants in common. The direction, that the Chancellor shall appoint the persons to make the division among them, amounts to no more than saying what the law had already said, that a partition of the estate so devised might be obtained by a bill in chancery. All concerned must be brought before the court, or have an opportunity of beino- heard ; from which a majority of them would be precluded by the ex parte procedure proposed by this petition. It may be inferred from this petition, that the parties concerned are anxious to have the estate of the deceased finally settled, and divided in the manner he has directed by his will. If so, a bill embracing the whole subject, and asking a partition, is the surest, cheapest, and most expeditious mode of proceeding that can be adopted. The defendants may answer at once, without waiting to be summoned ; an account may be taken if called for ; and a commission may issue, in the usual form, to divide the residue of 368 HOWARD'S CASE. the real estate with as little delay as the nature of the case may require. This petition is entirely irregular and unsuited to what appears to be the object in view. Whereupon it is Ordered, that the petition be and the same is hereby dismissed with costs. Afterwards, on the 2d of January, 1828, George Howard^ Benjamin C. Howard^ William Howard, James Howard^ Charles Howard, and James Howard McHenry by his guardian and next friend Charles Howard, filed their bill against William George Read and Sophia his wife, and John Eager Howard, an infant, stating that the parties were the devisees of the real estate of the late John Eager Howard, as specified in his will. Whereupon the plaintiffs prayed that a partition thereof might be made among them. The defendants Read and wife put in their joint answer, and the infant defendant answered by his guardian. They all admitted the facts as set forth in the bill, and united in praying for a partition. The plaintiffs recommended commissioners on their part, and the defendants having made a similar recommendation on their behalf, the solicitors of the parties w^ere heard as to a proper selection from the persons put in nomination ; and the case was submitted. 22d January, 1828. — Bland, Chancellor. — The said case standing ready for hearing, and being submitted, the bill, answer, and all other proceedings were, by the Chancellor, read and con- sidered; and it appearing reasonable and proper, that partition should be made of the said real estate as prayed ; — It is thereupon Decreed, that there be a partition of the real estate w^hereof the late John Eager Howard died seized, among his said devisees, the parties to this suit, in the manner and upon the principles prescribed by his last will and testament ; and for that purpose, all the real estate of which the said testator died seized, which may remain after the payment of his debts, shall be valued, together with and including all the real estate which he may have, at any time prior to the ninth day of October, in the year eighteen hundred and twenty-seven, conveyed to any of his said children, rating the same at its present value, and deducting therefrom the value of the improvements which have been made upon such property during its possession by said children ; or while in the possession of any other person claiming under them ; and upon such valuation, the whole shall be divided into eight parts. And to the end that this court may be enabled to make a just valuation HOWARD'S CASE. 359 and partition thereof, in the manner above mentioned, it is ordered, that a commission issue to Joseph W. Patterson^ George Hoffman, Solomon Etting, James Mosher, and Stewart Brown, of the city of Baltimore, authorizing them, or any three of them, to go upon, walk over, and survey the said real estate and property in the proceedings mentioned, and to value and divide the same in the manner above mentioned, according to the rights and interests of the respective parties ; that is to say, the said commissioners, or any three of them, shall divide the same among the said George Howard, Benjamin C. Howard, William Howard, James Howard, Sophia Read the wife of William George Read, Charles Howard, James Howard McHenry, and John Eager Hoioard, who are the children, or grandchildren and devisees of the said testator ; allot- ting to each one of them so much and such a proportion of the real estate of which the said testator died seized, as, together with that which the said testator conveyed to them, or any of them, the said devisees as aforesaid, will be equal in value to one-eighth part of the whole of the said real estate herein directed to be valued, having regard to quantity and quality, and deducting the value of improvements as above mentioned. But the said commissioners are not to include in the said valuation and division, any real estate of tlie said testator for which he may have given bonds of convey- ance, or which he has sold, or contracted to sell, and for which his executors are authorized to execute all necessary deeds to complete such contracts as are mentioned in his said last will and testament. And that the said commissioners be directed, in the commission, to make out a plot and certificate of the said real estate ; and of the divisions thereof, and an accurate description of the same and of the several parts thereof, and the value of each ; and to the said commission there shall be annexed, as usual, an oath of office. After which the commissioners made a return, that they had made partition of the real estate in pursuance of this decree, which, with the consent of the parties, was confirmed by a final decree in the usual form, awarding to each one of the eight devisees one share to be held in severally. 47 370 COLEGATE D. OWINGS' CASE. COLEGATE D. WINGS' CASE. A suit, which had been instituted in the name of a person in her dotage, having beea dismissed by her under the influence of the defendant, it was reinstated, and directed to be thenceforward prosecuted by her solicitor for her benefit. It was ordered that she should be permitted freely to go and to reside where she pleased ; and that if necessary a receiver might be put upon the estate to have its rents and profits applied to her maintenance pending the litigation. The maxim of the English law, that no man of full age shall be, in any plea to be pleaded by him, received to stultify himself and disable his own person, examined, considered and rejected, as being inconsistent with the principles of the law of Maryland. The indications and characteristic differences between the four kinds of dementia, called idiocy, delirium, lunacy, and dotage, as regarded by tlie medical profession and as recognised by the law, examined and considered. Weakness of mind is a sort of mental imbecility approaching to tlie condition of jjoti compos mentis, and analogous to childishness and dotage. Imposition practised upon weakness by him who is confided in and trusted is, in law, the most odious species of fraud. Where a person communicates his intention to make or alter his will, so as to give a legacy, or a portion of his property to an individual, and his heir, or any one else, interposes and prevents it by a promise to pay the legacy, to transfer the property, or to give an equivalent, such promise is binding, and may be enforced after the death of the testator or intestate, by the party in whose favour the promise was made. There are various kinds of decrees other than those which operate directly in favour of tlie plaintiff and against the defendant ; and when the whole of a complicated case has been brought before the court, such a decree may be passed as is best suited to its peculiar nature. If the conveyance of an estate be necessary, and the party required to make it be incompetent to contract, a trustee may be appointed to execute the conveyance in his name. Where a decree has been passed affecting both real and personal estate, and the case abates by the death of either paity, for the purpose of having the decree entirely executed, it must be revived by or against the heir, as well as the personal represent- ative of the deceased ; but it may be partially revived by or against either of them. This case was brought before the court by a bill filed by Colegate D. wings against Charlotte C. D. Owings, on the 21st May, 1825, in which the plaintiff alleged, that she was then more than eighty-four years of age, and at a time when she was in a condi- tion of extreme ill health, and altogether deprived of the proper use of her mental faculties, the defendant had fraudulently caused her to execute and deliver a deed dated on the 15tli of June 1824, which purports to be a conveyance from the plaintiff of all her real and personal estate to the defendant ; that the deed was made without any valuable consideration whatever, upon the false and fraudulent pretext that the plaintiff had promised to give by her last will and testament all her estate to the defendant. Upon which COLEGATE D. OWINGS' CASE. 37I the plaintiff prayed, that the deed might be annulled and cancelled, and tor general relief according to the nature of her case. The defendant by her answer denied, that the deed had been fraudulently or in any manner improperly obtained from the plain- tiff, and averred, that the plaintiff, as her mother, had promised to her father, a short time before his death, to provide for her. In con- sequence of which, and in express reference to that promise, he had by his last will given the defendant a trifling legacy, and so, in effect, excluded her from all participation in his estate. Upon all which the defendant insisted, that the deed should be sustained, or that she should have secured to her the full benefit of the plaintiff's promise. To this answer the plaintiff put in a general replication, and a commission was issued to take testimony ; but before it was returned, the plaintiff, on the 31st of August 1826, came from Bal- timore to Annapolis w'ith the defendant, and by an order in writ- ing, signed by her, directed the register to dismiss the bill, and it was dismissed accordingly. On the 6th of November, 1826, the solicitors of the plaintiff filed their petition, in which they stated, that although the com- plainant was not a lunatic, yet she was incapable of transacting business or disposing of her property ; and that she had declared, since her return home, that she went to Annapolis with her own lawyers ; and instead of dismissing her bill, she is under the impression, that she has got all her property back, and that the deed to the defendant has been set aside ; and the plaintiff's solicit- ors further allege, that the order for dismissing this suit had been procured by fraudulent practices and undue influence upon the plaintiff; and in support of their representation, they filed with it several affidavits. Upon all which they prayed to be heard ; that the bill might be reinstated ; that a guardian of the plaintiff might be appointed to prosecute the suit ; and that such order might be passed as the nature of the case should require. 21th JYovember, 1826. — Bland, Chancellor. — Ordered, that this application to reinstate the case stand for hearing on the fourth day of January next ; — that depositions taken by either party on one day's notice may be read in evidence at the hearing ; — that the Chancellor will at the hearing require the personal presence of the complainant for the purpose of informing himself upon the siibject of this application ; but he desires it to be distinctly understood, that the complainant must not be removed from home so as to sub- ject her to great personal inconvenience, or so as to endanger the 372 COLEGATE D. OWINGS' CASE. health of one so advanced in years, and reduced by infirmities. The relation however in which all the parties concerned stand to the complainant will, it is believed, insure proper respect and attention to her personal comfort and security. And the register is directed to transmit a copy of this order to the solicitor for the defendant. The taking" of proofs and the hearing of this matter were seve- ral times postponed at the instance of the plaintiff's solicitors ; and a further short delay having been granted by an order of the 29th March 1827, the matter was soon after that brought before the court. 11th April, 1827. — Bland, C'lancellor. — The matter of the petition to reinstate this case standing ready for hearing, the soli- citors of the parties were fully heard ; all the proceedings and proofs were read ; and the plaintiff, Colegate D. Owings, having been brought into the presence of the Chancellor, he interrogated and conversed with her as to the subject in controversy, and also on various matters having a tendency toward, or connected with it. All of which the Chancellor has deliberated upon and maturely considered. 'J'he case is of a peculiar and extraordinary nature. It is not alleged, nor does it in any way appear, that at the institution of this suit any thing was done that ought not to have been done ; or that this proceeding was an improper one with a view to the rights and interests of the plaintiff. (a) A cloud has been impended over the title to the property mentioned in the proceedings, which threatens to gather and thicken by delay. The means of dispersing it, the proofs in relation to the controversy, may be more entirely, readily, and cheaply obtained now than at any future period ; there- fore, justice as well as the peace and interests of all concerned, seem strongly to require that the suit which had been begun should be reinstated, and now prosecuted with as little delay as may be to a final decision upon its merits, as prayed by the petition.(6) The order for dismissing it was given before the return of the commission for taking testimony ; and, as it would seem, before all the testimony, pertinent to the matter and within reach of the parties, had been taken. For it appears, that some of the proofs collected under the petition might be brought to bear upon the principal case. I therefore deem it improper at this stage of the (a) Wartnaby I'. Wartnaby, Jac. Rop. 377.— (6) 1 Coll. Idiots, SO ; Holinan >. Holinan, 3 Desau. 210. COLEGATE D. WINGS" CASE. 3-73 proceedings more fully to explain the reasons which have brought me to the conclusion, that the case should be reinstated, lest, in doino- so, I might be supposed to intimate any opinion which should be reserved until the final hearing. It is not my intention to say any thing as to the commencement of the decline of the mental energy of the plaintiff; or to speak of the lucid intellectual efforts she may be now capable of making ; but, although it does not appear to be altogether settled according to the English authorities, that a writ in the n^iture of a writ de lunatico inquirendo can be issued against any one who is merely in a state of dotage,(c) I deem it proper to observe, that from the proofs of the present condition of the plaintifTs mental f-iculties, I shall regard her as completely under the especial protection of the court as she can be, short of her being formally placed under its guardianship by a regular course of judicial proceeding. (c?) I shall expect, that she shall be subjected to no manner of improper restraint, or disagreeable influence, not indispensably necessary for her welfare. If necessary, and it should be asked, the rents and profits of the property in controversy may be applied, under the direction of the court, to her support and benefit, until a final decree can be had. And as an imbecile adult may be permitted to sue here by his next friend,(e) I shall allow this suit to be hence- forward conducted by the solicitors, by wtiom it V\MS instituted, in the name of this plaintiff; subject, however, to the control of the court, should there be any occasion for its interference, (y") .. ^ ^ i __^^ (c) Leving v. Caverly, Prec. Cha. 229 ; Wall's Case, cited 3 Atk. 173 ; Ridge- way V. Darwin, S Ves. 66 ; Ex parte Cranmer, 12 Ves. 446 ; In re Holmes, 4 Russ. 182; 2 Mad. Chan. 732.— (rf) Donegal's Case, 2 Ves. 408; Wartnaby v. Wart- naby, Jac. Rep. 377 ; Whitehorn v. Hincs, 1 Mun. 557 ; 1 Coll. Idiots, 65, 67. (e) 1 Mont. Dig. 39. (/) Chambers v. Donaldson, 9 East, 471 ; Horner r. Marshall, 5 Mun. 4GG. RoTHWELL V. BousHELL. — In this case the bill stated, that John Boushell the defendant was deranged and incapable of managing his affairs, and prayed, that-a guardian ad litem, might be appointed to answer for him, &c. Aflerivards the plain- tiff' by petition stated, that a writ de lunatico inquirendo had, some time since, issued, upon which it had been found and returned, that Boushell was a lunatic, and that a trustee had been appointed, who had failed to give bond as required ; whereupon she prayed, that a guardian ad litem might be appointed. 13th February, 1819. — Kilty, Chancellor. — On considering the above petition, and finding on examination of the proceedings, that a bond has not been fded ; and, that therefore there is not, in effect, any trustee capable of acting, it is thought proper, and within the powers of the court, to appoint a guardian as prayed. It is therefore ordered, tliat Thomas W. Veasy be and he is hereby appointed guardian for the pur- pose of answering for the said John Boushell to the bill of complaint of Ann Roth- well in the petition mentioned. 374 COLEGATE D. OWINGS' CASE. Whereupon it is ordered, that the said suit heretofore instituted in this court by Colegate D. Owings against Charlotte C. D. Owvigs, which was dismissed on the 31st day of August last by order of the said plaintiff, be and the same is hereby reinstated, in all respects, as it stood before it was so dismissed. And it is further ordered, that the commission with the testimony taken under it, which was returned and filed on the 6th day of November last, stand and be available in the said case, subject to all legal excep- tions, in like manner as if the same had been returned and filed before the case had been dismissed. On the 23d of June 1827, the solicitors of the parties by a writing signed and filed by them, agreed, that all the testimony which had been taken in relation to the application to reinstate the case should be used at the final hearing, in like manner as if it had been taken under a regular commission. After which the plaintiff's solicitors filed a representation in which they say, that by virtue of the order of the 17th of April, they deem it their duty to state, that the plaintiff had been living in peace and comfort with her daughter Mrs. JVesbif, and on her leaving home to go to the springs for her health, the plaintiff had gone to reside with her daughter Mrs. Goodwin, where she had every attention and comfort she required ; that on the plaintifPs expressing a wish to attend a camp-meeting, Mrs. Goodwin had gone with her, but found it necessary for the plaintiff to take shel- ter from a shower of rain, in the house of a neighbour, when, in the absence of Mrs. Goodwin, the defendant contrived in a rude and covert manner to have the plaintiff put into a carriage and conveyed to the city of Baltimore, and there placed her, against her consent, in a boarding-house, where she could not have those attentions, conveniences, and comforts of which, from her age and infirmities, she stood so much in need ; that the defendant, inde- pendently of her want of means properly to support her mother, ought not, because of this controversy, to have the care of the plaintiff; and that the real and personal estate of the plaintiff had been and was then much neglected and exposed to waste and loss. Upon which they suggested, that the person of the plaintiff should be confided to the care of Mr. and Mrs. JYesbit ; and that a receiver should be appointed to take care of her estate. 17//i Sej)tember, 1827. — Bland, Chancellor. — The Chancel- lor has read and considered the statement filed and submitted COLEGATE D. OWINGS' CASE. 375 this day by Messrs. Winchester and Gwhm, the solicitors of the plaintiff. On passing the order for reinstating this case, it seemed doubt- ful whether the plaintiff was then in such a state of dotage as to warrant the issuing of a writ de lunatico inquirendo. Such a writ was not asked for by any one. The expression of an opinion to that extent therefore, was not then considered necessary ; and it was deemed best to leave the question as to the commencement and nature of her mental imbecility, as regards the matter in dis- pute, to be determined at the final hearing. Upon mature delibe- ration it seemed at that time, however, to be within the scope of the powers of this court to protect the plaintiff, without the inter- vention of a writ de lunatico inquirendo^ from all personal restraint, or undue influence in any way, or by any one ; and also, by the appointment of a receiver, or otherwise, to protect the property in litigation from waste, and to have its proceeds applied to her sup- port until the matter in controversy could be heard and determined. With a view therefore, as speedily as possible to release this aged plaintiff from all improper restraint, and of placing her in a condi- tion of undisturbed comfort, and of having the property in dispute taken care of. It is ordered, that any two or more of the medical professors of the University of Maryland, who have not heretofore expressed any opinion upon the intellectual condition of the said plaintiff Colegate D. Owings, be and they are hereby authorized and requested to visit and converse with her; and that she be per- mitted without the least molestation or undue persuasion whatever, from any one, forthwith, or at any time to go to and dwell in the house of any one willing to receive her, as may be thought proper or advisable by the said physicians, or a majority of them. And the said physicians shall as soon as practicable make report to this court of their proceedings, and of their opinion of the health and present intellectual condition of the said plaintiff (g-) And it is further ordered, that the matter of the said representation of the said solicitors be finally heard and disposed of on the twenty-third day of October next. Provided a copy of this order, together with a copy of the said representation be served on the said defendant, or her solicitor, on or before the twenty-fourth instant. Each party (g) Ridgeway v. Darwin, 8 Ves. 67; Ex parte Tomliiison, 1 Ves. & Bea. 59; Shelf. Lun. 62, 390. 376 COLEGATE D. OWINGS' CASE. is allowed to take depositions before any justice of the peace, or the commissioners of this court in the city of Baltimore, to be read in evidence at the hearing of this matter on giving two days' notice as usual. Nothino- havino- been done under this order, the case was, on the 28th November 1827, ordered to stand for hearing at the then next December term, unless cause was shewn to the contrary ; and no cause having been shewn, the case was brought before the court for a final decision. 20th February, 1828. — Bland, Chancellor. — This case standing ready for hearing and having been submitted, without argument or notes, the proceedings were read and considered. The bill charges, that the deed of the 15th of June 1824, was obtained by combination and fraud ; which of itself, if true, would afford a sufficient ground for the relief prayed. But this allegation is especially bottomed upon the statement, that at the time the deed was executed, the plaintiff had been deprived of her intellectual faculties ; and that she w\as then in truth entirely non compos men- tis ; either from great age, or by reason of the disorder under which she was then suffering. She makes her own incapacity the chief basis of her prayer for relief. But, according to a maxim of the English law, no man can be allowed to stultify himself for the purpose of avoiding his own deed.(/i) If we are bound by this maxim ; and it be an established principle of our law, it is evident, that every thing in this case, which can be considered as at vari- ance with it, must be rejected ; and we must be confined to that alone which relates to the allegations of fraud, in total exclusion of every thing respecting the plaintifTs personal disability occa- sioned by her alleged insanity. The application of this maxim to this case, therefore, meets us here, as a preliminary inquiry. Can the unfortunate or afflicted party himself make his own insanity a .foundation of relief or defence? Is it a principle or maxim of the law of Maryland, " that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself, and disable his own person ?"(i) I have not been able to find any adjudged case, oi- other respectable authority, shewing in what manner this maxim has been received ; or whether it has ever hccw adopted or rejected CO Beverlpy's Case, 4 Co,' 123.— (i) Beverley's Case, 4 Co. 12.3. COLEGATE D. OWINGS' CASE. 377 in this Stale. Therefore, whether it ought to be now received, or rejected, must depend upon the nature of the reasons and the policy by which it is sustained. In England, it is said, that the progress of this notion is some- what curious ; and although it has been handed down as settled law, yet, that later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it.(y) This maxim has received the entire approbation of few of the English lawyers, and, by many of them, it has been not only questioned, but severely reprobated. (^") It is alleged to have been set up in defiance of natural justice and the universal practice of all the civilized nations in the world. (/) It has been shewn fi'om the most unquestionable authority, that the ancient common law, without deviation, down to about the year 1330, recognised the right of the party himself to rely upon and prove his own insanity as a means of avoiding any contract made during his insanity ;(?n) and in a case which was decided about ftie year 1420, it appears that the plaintiff was permitted to allege as the ground of the relief he asked and obtained, that he was of great age, and that his discretion many times, and for the most part, had passed away from him, and that the bargain had been made when he was out of him- self. (?i) It is said by one of the most eminent of the English judges, sitting in an ecclesiastical court, that it is perfectly clear in law, that a party may come forward to maintain his own past incapacity, and also that a defect of incapacity invalidates the contract of marriage, as well as any other contract. (0) After the most solemn and deliberate investigation, this maxim has been rejected in Connecticut ; and in New York and Virginia it seems to have been put aside as unworthy of the least consideration or notice. (/>) Mere weakness of mind alone, without imposition or fraud, forms no ground for vacating a contract. But if there be any unfairness in the transaction, then the intellectual imbecility of the party may be taken into the estimate, to shew such fraud as will afford a ground for annulling it. Courts of justice disclaiming all pretension to measure men's capacities, recognise no legal distinc- {j) 2 Blac. Com. 291; Thompson v. Leach, .3 Mod. 301; 1 Ld. Raym. 313; 2 Stra. 1104.— (A-) 1 Coll. Idiots, 406 ; Coop. Med. Jur. S77.— (Z) 1 Fonb. 48. (m) F. N. B. 466; 1 Pow. Cont. Id.— (n) 1 Lond. Jurist, 340.— (0) Turner r, Meyers, 1 Hagg. Con. Rep. 414. — ( p) Web.ster v. Woodward, 3 Day, 90; Rice 0. Peet, 15 John. 503 ; Horner r. Marshall, 5 Mun. 4CG. 48 378 COLEGATE D. OWINGS' CASE. tion but that which is drawn between persons of sound mind, and those who are non compos mentis. All persons in the former con- dition of mind, not otherwise disqualified, may make a valid contract ; but all contracts made by those in the latter situation are deemed utterly void. (5') And yet, according to this maxim, no man can be allowed to stultify himself; that is, to shew that he had not merely a weak mind, but that he was absolutely non compos mentis. If a man be of ever so feeble a capacity, short of lunacy, he may be allowed to prove that fact ; or, in other words, partially to stultify himself in connexion with other circumstances, in order to shew that he had been defrauded. But if he be absolutely non compos mentis, he shall not be permitted to prove that fact, or to stultify himself altogetJier ; although it would seem to be difficult to understand how the obtaining from a lunatic a conveyance of his property, can be otherwise considered, than as being in itself the strongest and most conclusive evidence of fraud. Hence, as it would seem, if the injured party should state, ftiat being of a weak mind, he was imposed upon and defrauded ; the defendant has only to prove an aggravation of his own iniquity, by shewing that the plaintiff was, in truth, at the time, not merely weak, but actually non compos mentis, and he may be at once silenced by this maxim. It is said, that a man should not be permitted to stultify himself, " because, when he recovers his memory, he cannot know what he did wdien he was non compos mentis.^^ But this cause of the rule, as thus expressed, conveys a contradiction in terms, a sole- cism in itself. A man in madness is not himself; his mind is aliened and gone ; the rational power has left its tabernacle, and is from home. It would be just as reasonable to say, that he who is absent from his dwelling, should not obtain redress for any injury done to it during his absence, because when he returned home he could not know what had been done there while he was abroad ; as that a person should not obtain redress by stultifying himself, because he could not know what he had done during the time he was insane. It has been well said, that he who jests upon a man who is drunk, injures the absent. But an innocent and unfortunate person is much more really and totally absent from himself in his madness, than a man in his drunkenness. (;•) (?) 1 Fonb. 66. (r) Dr. Rush, in his observations on the diseases of the mind, has frequent recur- rence to the poets lor ilhistrations of the nature of madness ; because, as he says, tliey \'iew the imman mind in all its operations, whether natural or morbid, witli a GOLEGATE D. OWINGS' CASE. 379 It is the special duty of the State to take care of those who suffer under any natural infirmity which incapacitates them from taking care of themselves. And, therefore, to adopt a maxim which in its operation casts them out from the protection of the law, of which they stand so much in need, and leaves them to be stripped of their property by the most palpable fraud, appears to be exceedingly unjust and cruel. The reason of this maxim does, in effect, declare, that the unfortunate are to be left unprotected, because they are unfortunate ; that no care is to be taken of an innocent lunatic, because, being a lunatic, he knows not what he does, and cannot take care of himself. While on the other hand, it virtually proclaims, that iniquity shall be protected, and that the defrauder shall be allowed to profit by his own wrong, and to enjoy his plunder in perfect security. It is said, that " if the common law had given a writ of non compos mentis to him who has recovered his memory after aliena- tion, certainly the law would have given him remedy for the Main- tenance of himself, his wife, children and family, although he recovered not his memory but continued non compos mentis.^\s) I do not clearly see the force of this inference ; but it would seem, from what is said, that because a man cannot have a deed set aside microscopic eye ; and hence many things arrest their attention, which escape the notice of physicians.— (i?!/sA on the Mind, 1.5S.) Shakspeare has been frequently referred to by writers on the subject of mental disorder. — ( Conolhj Ind. Inst. 319; Coop. Med. Jur. 291 ; 1 Paris ajid Fonb. 316, note.) Justinian quotes a passage from Homer to illustrate the nature of a donation mortis causa, (lib. 2, tit. 7, s. 1,) and Lord Coke allows, that to cite verses standeth well with the gravitie of our lawyers. {Co. Lilt. 237.) I shall therefore feel myself justified in placing among the references some extracts from the poets, by way of illustration and in support of what I have said, in the text : " Poor Ophelia, Divided from herself and her fair judgment, Without the which, we are pictures, or mere beasts." Hamlet, act 4, s. 5. "If Hamlet from himself be ta'en away, And, when he's not himself, does wrong Laertes, Then Hamlet does it not, Hamletdenies it. Who does it then ? His madness." Hamlet, act 5, s. 2. By the statute of 33 Hen. 8, c. 20, a person who had, while sane, committed high treason, and after became mad, might be tried in his absence, without making his personal appearance, &c. From which it may be inferred, that by a legal appearance at the trial, in criminal cases, is meant the actual presence of the mind as well as the body; thus recognising the position, that in a state of insanity the mind has left the body, and cannot be brought before the court with it.— 4 Blac. Com. 25. (s) Beverley's Case, 4 Co. 124. 380 COLEGATE D. OWINGS' CASE. in order to recover his property, he is therefore utterly -without remedy for the maintenance of himself and family during the con- tinuance of his insanity. This however is not altogether correct. A right of property necessarily implies, that its owner has a remedy for the recovery of it ; ahd also, that he is invested with the means of protection in the enjoyment of such property as the law allows him to dispose of without any other limit than that in doing so he shall not injure his fellow citizen. But if the owner has a wife and children he is bound to maintain them, at least so far as his property affords him the means. This maxim applies only to the contracts of the lunatic ; it does not prevent him from vindicating his right to his property by an action of ejectment, trespass, trover, &c.(i) nor does it release him from any obligation, which his property will enable him to discharge. Novv^ it is in execution of this his own right, and in fulfilment of this his duty to his family, that the Court of CJiancery has always acted, in taking care of persons who are non compos mentis, and their estates. For the court is bound, in behalf of the State, to keep the lunatic, his wife, chil- dren and household with the profits of his lands and estate, and to apply the whole to their use ; although he recovers not his memory, but continues non compos mentis.{xi) But we are told, that although the lunatic himself may be fet- tered by this maxim, yet there is a mode in vvdiich he may obtain redress ; and that his heirs and personal representatives are not bound by this maxim. A commission of lunacy may be taken out, he may be declared a lunatic, and a committee appointed to take charge of his person and estate ; and such committee may sue and have any deed, made by the lunatic, during his insanity, vacated for his benefit. But why this circuity ? The issue joined between the committee of the lunatic and his grantee must be exactly the same, and it must be met by precisely the same proof as if the lunatic himself had been the party. But even this cir- cuitous mode of redress, is often lame, tardy, or wholly inefficient. It is, however, better than none at all. But if a lunatic, in the condition of having been defrauded of his property, should recover his reason, then there is an end even of this circuitous remedy. He is discharged from the government and protection of his committee, and left to regain his property as (/) '■i Bac. Abr. 5-il.— (u) Beverley's Case, 4 Co. 127. COLEGATE D. OWINGS' CASE. 381 he can ; taking care, however, that he does not allege his own for- mer insanity as a ground for vacating any contract by which he may have been defrauded of it. Hence as regards his property, the recovery of his reason, instead of being a blessing, may be his greatest misfortune ; for he may, notwithstanding he is in fact the owner of a large estate, be by the operation of this maxim, fixed in penury during the remainder of his days. The granting of a commission of lunacy it is said, is a matter not of right but of sound discretion under all circumstances. (v) But if this maxim prevails it should be held to be a matter of right, since it may be often indispensably necessary as the only means by w^hich a lunatic can obtain justice. The heirs and personal representatives of the lunatic are, how- ever, not restrained by this maxim. They may obtain the redress which has been denied to him. The heir may recover the impe- rishable realty ; but of wdiom is reimbursement to be obtained for the years of waste and devastation that may have been committed upon it during the life of the lunatic ? The only remedy against the wrongdoer, in its best form, is a mere personal claim for an account of the rents and profits ; but he may be a beggar. The administrator of the lunatic may reclaim his personal property itself, if to be found ; or if not, he may sue for its value, if the wrongdoer can be found ; and recover from him its full value, if he should be worth as much. He who delays to pay what is due, pays less than is due ; but suspended and indefinitely deferred jus- tice is a tantalizing pernicious mockery. It appears to be most extraordinary, that any code of laws should recognise a case in which the existence of a wrong is admitted, and the redress for it is postponed until after the death of the injured individual. (w) There is, however, one highly respectable English lawyer wdio has attempted to vindicate this maxim. " Insanity," says he, " being a quality annexed to the mind of the party who is subject to it, is a conclusion upon his state of mind to be drawn only from his own actions. A person therefore may assume this disability, whereas he cannot feign infancy and duress, the proof not origi- nating in himself and his actions, but subsisting independently. That being the case, the law (w^hich is anxious to provide against the possibility of committing fraud, at the same time that it pro- vides for the protection of rights,) removes the temptation to prac- (d) 1 Coll. Idiots, 67 ; Rebecca Owings' Case, ante, 290.— (w;) Shelf. Lun. 53. 382 COLEGATE D. OWINGS' CASE. tise the former, by prohibiting every man from setting aside his own deliberate acts by stultifying himself, although it furnishes a means by which his heirs, after his death, or his friends, whilst he is living, may avail themselves of this disability. And it is to be observed, that the law in these cases does not proceed upon the ground, that the party is bound ; for that cannot be, seeing that, by the law of nature, he wants the capacity to assent to a contract ; but because the policy of the law, which rather submits to particu- lar mischief than a public inconvenience, sets bounds to the law of nature in point of form and circumstance. "(z) The argument, here derived from considerations of public policy, results in this ; that a greater amount of fraud and injustice would be likely to ensue by allowing men to stultify themselves, in order to avoid their contracts, than by refusing them permission to do so for that purpose. And this position is founded on an assumption of the fact, that it is exceedingly easy to counterfeit madness without being detected ; or that of those who do deceitfully pre- tend to be insane the far greater number escape detection ; and consequently, but for this maxim the appearance of lunacy would be very frequently put on, for the purpose of practising imposition and fraud. The position however, is not sustained by the fact. It is incumbent upon those who advance this argument to shew, that instances of feigned madness are common ; and also that in those instances the detection of the deceit has been rare or difficult. In criminal cases, to defeat the progress of justice, and under various circumstances to escape from oppression or some imminent peril, the artifice of counterfeiting madness has often been resorted to ; but no instances of fraud in civil cases, perpetrated by means of pretended lunacy, have been adduced, and I know of none. (3/) (x) 1 Pow. Cont. 20. (y) The following observations of Messrs. Paris and Fonblanquc, in their excellent work on Medical Jurisprudence, arc well worthy of attention : " There are (say they) several objects, for the accomplishment of which persons are induced to simulate the existence of disease — such as, for obtaining military exemptions and discharges ; or certain civil disqualifications ; for the purpose of deriving parochial relief, or pecuniary assistance from benefit societies ; or the comfortable .shelter and retreat of an hospital; for exciting compassion and obtaining alms ; for creating public interest and curiosity ; for procuring a release from confinement or exemption from puni.shment ; and, lastly, for the dishonest intention of recovering unjust compensation from some person selected for accusation, as the author of the pretended calamity." " The diseases which have been selected for the accomplishment of any of the purposes above enumerated are extremely numerous, although there are some few which may be said to be more generally preferred on such occasions. In general. COLEGATE D. OWIxNGS' CASE. 333 The doubtful and uncertain point at which reason disappears, and where incapacity becomes evident and manifest, can only be fixed by the particular circumstances of each particular case. And it must be admitted to be difficult to lay down, with any thing like positive precision, any rules by which the sanity of the mind can be tried. Insanity is, however, a fact ; and like eveiy other fact, upon which the rights of persons or of property may depend, must be established by proof clear, strong, and demonstrative, (c:) In cases of this sort, the evidence of medical men is, in general, produced ; and, in proportion to the great improvements in that branch of science, such evidence is now more than ever to be relied upon, (a) I therefore deem it a sufficient answer to this argument, derived from considerations of public policy, to deny the trudi of the fact upon which it is based ; and to rely upon the circumstance, that if there ever had been any such foundation for it, we should not, at this day, be at a loss to find any clear evidence of those facts in any foreign, code, or in the innumer- tlie medical inquirer will not have much difficulty in detecting such impostors ; although there aie cases where the investigation becomes a subject of extreme delicacy and importance, as in those persons reporting themselves sick and unfit for military ser\ice, or malingerers, as they are technically called." " Insanity has in all ages been feigned for the accomplishment of particular objects ; we read of its having been thus simulated by David, Ulysses, and Lucius Brutus. In general, the detection of such an imposition will not be difficult ; the feigned mjmiac never wiUingly looks his examiner in the face, and if his eyes can be fixed, the change in his countenance, on being accused, vrHl be strongly indicative of hia real state of mind. It is, moreover, very difficult to imitate the habits of a lunatic for any length of time, and to forego sleep. An insane person generally sleeps but little, and talks much during the night; but the pretender, if he thinks he is not watched, will sleep, and only act his part when he believes his conduct to be observed."—! Par. k. Fonb. 335,359 ; 3 ibid.X^l ; 1 Hale, P. C. 33, 35 ; 1 Hawk. P.C.2; 3 Inst. 6; 4 Co. 124; Coop. Med. Jur. 266, 322; Rv^h on the Mind, IS, 216; 1 Sam. 21, V. 13; Con. Insa. Ado ; Shelf. Liin. 69. It appears fi-om the circumstances related by Messrs. Paris and Fonblanque, that durino- the wars arising out of the French Revolution, the French and English surgeons became exceedingly sldlful in detecting recruits in their attempts to escape from service in the army or na%-y by feigned diseases. But in all ages, under arbi- trarj' or corrupt governments, it has been common to endeavour to defeat oppression by fraud ; and w^here that has failed, or could not be successfully practised, there have been frequent instances, in which the individual has voluntarily maimed and disabled himself from being made an instrument in the hands of his oppressor. — Gibbon, D. ^ F. chap. 17 ; Co. Lilt. 127 ; 2 Diver. Pur. 21. But no instance ig mentioned by Messrs. Paris and Fonblanque, nor have I any where met with any allusion to a case where a party feigned insanity as a means of evading the obligation of his contract. (s) Attorney General v. Parnther, 3 Bro. C. C. 441. — (a) Sherwood v. Sanderson, 19 Ves. 286; 1 Pari. & Fonb. 315 ; Shelf. Lun. 70. 384 COLEGATE D. OWINGS' CASE. able English reported adjudications in relation to the subject of insanity. It is admitted, that many of the wise and sound maxims of the law are founded on considerations of public policy. But it by no means follows, that they are each of them similar and in principle alike ; or that they do, in any respect, sustain each other by analogy. Upon considerations of public polic}'-, the law will not permit the verity of certain public acts and judicial records to be called in question ; but the foundation of that rule, it is evident, is very different ; — indeed it is admitted to be directly contrary from that of this maxim, in relation to contracts. (6) Upon the whole, I am clearly of opinion, that this English rule, which declares, that a man shall not stultify himself by his own plea, never has been, and ought not to be considered as a part of the law of Maryland. And having thus disposed of this prelim- inary point, upon the determination of which the nature of the further investigation of this case so essentially depended, I feel myself now at liberty to take every view of it which the pleadings and proofs will warrant ; and to dispose of it upon the established rules of equity, and the broad principles of natural justice ; and shall proceed accordingly. - Before I go into an examination of the proofs, it seems to be proper that something should be said respecting the general nature of insanity, or that unsound condition of the human mind, to which so large a portion of the testimony relates ; and, upon a just con- ception of which inhrmity, a correct determination of this case so mainly depends. " Madness," says Sir William Scotty " is a state of mind not easily reducible to correct delinitlon, since it is the disorder of that faculty with which we are little acquainted ; for all the study of mankind has made but a very moderate progress in investigating the texture of the mind, even in a sound state. In disease, where it has pleased the Almighty to envelope the subject matter in the darkness of disease, it will probably always continue so ; but the effects of this disordered state are pretty well known. We learn from experience and observation all that we can know,*and we see that madness may subsist in various degrees, sometimes slight, as partaking rather of disposition or humour, which willnot incapacitate a man from managing his own affairs, or making a valid contract. It must be something more than this ; (6) 1 Povv. Cont. 22. eOLEGATE D. OWINGS' CASE. 385 something which, if there be any test, is held by the common judgment of mankind, to affect his general fitness to be trusted with the management of himself and his own concerns. The degree of proof must be still stronger, when a person brings a suit on allegation of his own incapacity, by exposing to view the changes of his mind. "(c) And an eminent physician, in " An Inquiry con- cerning the Indications of Insanity," observes, that "the same intellectual light may be given to all ; but in some obscured by a gross organization, and in others, more happily organized, shining forth more brightly. Itself out of the reach of physical injury, it works by physical instruments ; and the exactness of its operations depends on the growth, maturity, integrity, and vigour of its instru- ments, which are the brain and nervous system. If the nervous agents of sensation are unfaithful, the mind receives false intelli- gence, or transmits its orders by imbecile messengers : if the seat of thought, the centre of intellectual and moral government, is faultily arranged ; the operations of the understanding are impeded and incomplete. Nay, so dependent is the immaterial soul upon the material organs, both for what it receives and what it transmits, that a slight disorder in the circulation of the blood through dif- ferent portions of nervous substance, can disturb all sensation, all emotion, all relation with the external and the living world ; can obstruct attention and comparison, can injure and confound the accumulations in the memory, or modify the suggestions of imagi- nation. "(c?) The plaintiff has been subject to attacks from a disorder, that has repeatedly darkened her understanding with delirium ; the proofs exhibit some of her conduct as indicative of lunacy ; and that dotage, or intellectual weakness, which the bill represents to be her present condition, is a species of insanity which does not appear to have been very attentively considered, either by the pro- fession of medicine or of the law. Its approaches are most com- monly so gradual as to be for some time imperceptible, and the early evidences of it are almost always exceedingly equivocal. Under the generic legal term, non compos m£ntis, is comprehended every species of mental derangement which incapacitates a man from assenting to, or making a legal contract. But, for the purpose of obtaining as clear a view as may be of a subject so obscure, and without placing too much reliance upon any general definitions. (c)Tiuner i: Meyers, 1 Hagg. Cons. Rep. 414.— (c?) Conolly Ind. Ins. 62. 49 386 COLEGATE D. OWINGS' CASE. I shall follow what appear to be the substantial distinctions marked by external indications, and recognised by our law as manifested in idiocy, delirium, lunacy, and dotage. (e) Idiocy is that condition in which the human creature has never had, from birth, any the least glimmering of reason ; and is utterly destitute of all those intellectual faculties by which man, in general, is so eminently and peculiarly distinguished. It is not the con- dition of a deranged mind ; but that of a total absence of all mind. Hence this state of fatuity can rarely or ever be mistaken by any, the most superficial, observer. The medical profession seem to regard it as a natural defect, not as a disease in itself, or as the result of any disorder. In law, it is also considered as a defect, and as a permanent and hopeless incapacity. (/') Delirium is that state of the mind in which it acts without being directed by the power of volition, which is wholly or partially suspended. This happens most perfectly in dreams. But what is commonly called delirium, is always preceded or attended by a feverish and highly diseased state of the body. The patient in delirium is wholly unconscious of surrounding objects ; or con- ceives them to be different from what they really are. His thoughts seem to drift about ; wilderinof and tossins; amidst distracted dreams. And his observations, when he makes any, as often happens, are wild and incoherent ; or, from excess of pain, he sinks into a low muttering, or silent and death-like stupor. (g-) The law contem- plates this species of mental derangement as an intellectual eclipse ; as a darkness occasioned by a cloud of disease passing over the mind ; and which must soon terminate in health or in death. (A) Lunacy is that condition or habit in which the mind is directed by the will, but is wholly or partially misguided, or erroneously governed by it ; or it is the impainnent of any one or more of the faculties of the mind, accompanied with, or inducing a defect in the comparing faculty. For, as has been observed by a great philosopher, those who either perceive but dully, or retain the ideas that come into their minds but ill, who cannot readily excite or compound them, will have little matter to think on. Those who cannot distinguish, compare, and abstract, would hardly be able to (e) 1 Par. & Fonb. 307 ; Rush on the Mind, 234 ; Shelf. Lun. intro. s. 2.— (/) 1 Par. k. Fonb. 2S9, 308 ; Rush on the Mind, 292 ; Co. Litt. 246 ; 1 Hawk. P. C. 2, note ; Donegal's case, 2 Yes. 40S.— (g) 2 Zoonoinia, C. 2, 1, 7; Rees' Cyclo. ver. Deli- rinm; Rush on the Mind, 9, 298; 1 Par. &. Fonb. 300.— (A J 1 Coll. Idiots, 7, 405; 1 Fonb. 63 ; Shelf. Lun. 43 ; Brogden v. Brown, 2 Add. Eccl. Rep. 441. COLEGATE D. OWINGS' CASE. 387 understand and make use of language ; or judge or reason to any tolerable degree ; but only a little and imperfectly about things present and very familiar to their senses. The defect in idiots seems to proceed from want of quickness, activity, and motion in the intellectual faculties, whereby they are deprived of reason ; whereas madmen seem to suffer by the other extreme : for they do not appear to have lost the faculty of reasoning, but having joined together some ideas very wrongly, they mistake them for truths, and they err as men do who argue right from wrong principles. For, by the violence of their imaginations, having taken their fancies for realities, they make right deductions from them. In short, madmen put wrong ideas together, and so make wrong proposi- tions, but argue and reason right from them ; but idiots make very few or no propositions, and reason scarce at all. The erroneous perception of some of the mental faculties, uncontrolled by its comparing faculty, often becomes exceedingly extravagant, and extends to the whole conduct of the indi\-idual. . In such cases, lunacy is so strongly marked as to be obvious at first sight, or upon a single interview with the unhappy sufferer. The most strange, whimsical, and incongruous associations are made of thoughts and objects ; matter and impertinency are mixed ; and the mind is involved in the most obstinate and unaccountable mistakes. During these hallucinations, however, the perceptions seem to be, in many respects quickened, and the maniac becomes exceedingly suspi- cious, watchful, cunning, and adroit. (z) (i) 1 Zoonomia, sec. 34, 2, 1 ; 2 ibid. Cla. 3, 1, 2; Rees' Cyclo. ver. Mental Derangement; Locke Hum. Und. b. 2, c. 11, s. 12 & 13; Con. Ind. Insanity, 114, 300 ; 1 Coll. Id. 8, 36 ; 1 Par. & Fonb. 302, 311, 318 ; Rush Mind, 72, 133, 14, 257 ; Shelf. Lun. cha. 3. " Oh matter and impertinency mixt ! Reason in madness !" Lear, act 4, s. 6. " My pulse, as yours, doth temperately keep time. And makes as healthful music : It is not madness, That I have utter'd : bring me to the test, And I the matter will reword; which madness Would gambol from." Hamlet, act 3, s. 4. Sir Henry Halford, a celebrated English physician, relates an instance in which this test, appealed to by Hamlet, was applied to a patient' of his, who desired to make his will. The sick man was requested to give directions how his will should be made, and it was accordingly drawn, read to, and signed by him ; but being suspected to be of unsound mind, after a short interv-al, he was requested to repeat the direc- tions he had given, " to reword the matter," but in endeavouring to do so, his mind gambolled from it, and wandered so materially from his first directions, that he was 388 COLEGATE D. OWINGS' CASE. It very commonly happens, however, that the derangement of the mental faculties is confined to some particular idea or object of desire or aversion. The idea or object thus erroneously contem- plated, is usually and not inaptly called the mad point ; and hence this species of insanity has been denominated monomania. (J) In cases of this kind, which may be adduced as a ground for relief or defence in any judicial controversy, it should appear that the morbid image in the mind of the patient has been connected by him with, and has perverted his judgment in relation to those of his acts which are drawn in question. (A;) And as in monomania, there are whole classes of subjects as to which the intellectual faculties of the patient may be entirely trustworthy ; so, on the other hand, even in cases of general insanity, there may be not only lucid intervals in held to be non compos mentis, and the will was therefore set aside. — 5 Quar. Jur. Scie. 242. A change came o'er the spirit of my dream. The lady of his love ; — Oh ! she was changed As by the sickness of the soul ; her mind Had wander' d from its dwelling, and her eyes They had not their own lustre, but the look Which is not of the earth ; she was become The queen of a fantastic realm ; her thoughts Were combinations of disjointed things ; And forms impalpable and unperceived Of others' sight, familiar were to hers. And this the world calls phrenzy ; but the wise Have a far deeper madness, and the glance Of melancholy is a fearful gift ; What is it but the telescope of truth? Which strips the distance of its phantasies, And brings life near in utter nakedness, Making the cold reality too real ! Byron's Dream, (j) Such phantoms pride, in solitary scenes. Or fear, or delicate self-love, creates. From other cares absolv'd, the busy mind Finds in yourself a theme to pore upon ; It finds you miserable, or makes you so. For while yourself you anxiously explore, Timorous self-love, with sick'ning fancy's aid, Presents the danger that you dread the most. And ever galls you in your tender part. Hence, some for love, and some for jealousy, For grim religion some, and some for pride, Have lost their reason ; some for fear of want, Want all their lives; and others every day, For fear of dying, suffer worse than death. Dr. Armstrong on Health, book 4. (k) White V. Wilson, 13 Ves. 88 ; Bootle v. Blundell, 19 Ves. 508 ; Dew v. Clark, 1 Addaras' Eccl. Rep. 279, and 3 Addams' Eccl. Rep. 79 ; Shelf. Lun. intro. 54 & 293 ; Conolly Ind. Insanity, 383, 446. COLEGATE D. OWINGS' CASE. 339 all respects, but there may also be particular points and objects as to which the mind of the maniac may be perfectly clear, consistent, and sound ; as in the case of the holographic will made by a lunatic woman, whose hands, at her earnest entreaty, were untied for the purpose of permitting her to write. (Z) But this proteus disorder, in its milder forms, is not at all perceptible to a superficial observer, often escapes the notice of the most skilful, even after being apprised of the existence of the malady ; and it frequently happens that it cannot be detected without an examination of some time, and repeated observations. Although in law this state of the mind is held to be a course or o habit, not a mere act, but as having some continuance ; yet it is considered as a distempered condition, occasioned by disorder or accident, from which the recovery of the patient is deemed possible and probable ; and therefore he and his property are always dis- posed of with a view to a recovery. (m) Dotage is that feebleness of the mental faculties which proceeds from old age. It is a diminution or decay of that intellectual power which was once possessed. It is the slow approach of death ; of that irrevocable cessation, without hurt or disease, of all the functions which once belonged to the living animal. The external functions gradually cease ; the senses waste away by degrees ; and the mind is imperceptibly visited by decay. The inert and dull senses transmit the passing occurrences so imper- fectly to the sensorium, that they leave none, or but a veiy transi- tory impression there. Hence long past transactions are often remembered with much more exactness than those which have taken place recently. In the second childhood, as in the Jirsf, all the present makes but a faint and fleeting impression upon the mind. Hence the judgment in both stages, is weak, and the conduct unsteady and frivolous. (n) (I) Cartwris^htv. Cartwright, 1 Phill. 90.— (m) 1 Coll. Id. 33 ; Beverley's case, 4 Co. 124 ; Donegal's case, 2 Ves. 408 ; Attorney General v. Parnther, 3 Bro. Ch. Ca. 441 ; Fitzgerald, a lunatic, 2 Scho. & Lefr. 437 ; Shelf. Lun. 36. (n) "The soul in all hath one intelligence; Though too much moisture in an infant's brain, And too much dryness in an old man's sense, Cannot the prints of outward things retain : Then doth the soul want work, and idle sit ; And this we childishness and dotage call. Davies. Or, as has been said, it is that decline of all the powers of the man, when Nature, as it grows again towards earth Is fashion'd for the journey, dull, and heavy. Coipper. Shakspeare's ^s You Like It, act 2, s. 7, and second part of Henry Ath, act 1, s. 2. 390 COLEGATE D. OWINGS' CASE. But a man in his dotage is evidently distinguishable from an idiot, who has no mind at all ; a patient in delirium, whose mind is ungoverned and ungovernable ; or a lunatic, whose mind is in ruins, broken up, and tlie component parts of which are at variance with each other. The old man has a mind, worn and in a state of decay, it is true, but still, so much of it as remains, is feebly governed upon the principles of its former sound condition ; its conceptions are not impertinently mixed ; nor is it grossly mis- guided in any of the feeble operations of which it is capable. Perhaps the most striking peculiarity of dotage is its imbecility of perception. The senses not supplying the mind as usual with matter for exertion, it decays for want of use ; and becomes inca- pable of receiving any additional ideas, or of following through any unusually catinated, or long combination of thought. Hence the infant and the dotard, from imbecility of bodily functions, present that remarkable similarity in the feebleness of their minds ; and easily surrender themselves to the direction of those about them, for whom they have a regard, or who may choose to exercise any authority, or influence over them. Physicians, it appears, do not regard this species of mental imbecility as being in itself a disorder, or the effect of disease. (o) But the law considers it not only as a species of insanity, from which there is no hope of recovery, but as one which always becomes worse as age advances, (p) It has been long and well established, that a contract made by a person who is, at the time, actually non compos mentis^ either as in idiocy, delirium, lunacy, or dotage, is entirely void ; indeed it would seem to be difficult to conceive how such a contract should ever have been otherwise considered than as an absolute nullity. (9) But the law does not allow of an examination into the wisdom and prudence of men in disposing of their estates ; for every man who is legally compos mentis, is a disposer of his property, and his will stands for a reason. The law however so far regards human infirmity, as that if a person of weak mind be imp.osed upon, he may be relieved ; not, however, merely because of his weakness of mind, or of his old age ; for, that alone furnishes no sufficient ground for vacating a (0) Rees' Cyclo. ver. Death ; 1 Par. & Fonb. 308 ; Rush on the Mind, 61, 292, 294 ; Conolly Ind. Insanity, ch. 8 & page 440, 44.3.— (jj) Leving v. Caverly, Free. Chan. 229 ; Ridgeway v. Darwin, 8 Yes.' 66 ; Ex parte Cranmer, 12 Ves. 446 ; Gibson v. Jeyc?, 6 Yes. 275.— (^) Thompson v. Leach, 1 Ld. Raymond, 313 ; 3 Mod. 301. COLEGxVTE D. OWINGS' CASE. 39I contract ; yet, that with other circumstances, will afford a sufficient foundation for relief, (r) What is that degree of intellectual imbecility which may be taken into the estimate as one of the component parts of a ground for relief, in those cases where the boundary between mere weak- ness and a condition of 7ion compos mentis is so narrow that it may be difficult to draw the line,(s) I shall not undertake to deter- mine, as I have not been able to find it any where particularly described. (^) It must not, however, be confounded with mere ignorance. If the grantor be an ignorant and illiterate man, one who cannot read ; it is necessary, that the deed should be fully and correctly read to him ; for, if it is not read at all, or improperly read to him, or if it be read or explained to him improperly even by a stranger, (w) he will not be bound by it ; not on tlie ground of weakness of mind, or of his incapacity clearly to judge of what he w^as about ; but because his sound mind cannot be presumed to have assented to that of which it was wholly ignorant or misin- formed, (i;) It has been laid down in general terms, that it is fraudulent to obtain a deed by the exercise of undue influence over a man whose mind had ceased to be a safe guide of his actions ;(a;) or from a man who was of small Understanding and not able to govern the lands w^hich had descended to him. (7/) A woman who could read and write, and had taught a child to read, was held to be a person of weak understanding ;(c;) so repeating scraps of Latin and reading classic authors was deemed no proof of sanity ; because what a person learns in his youth leaves a lasting impression, and the traces of it are never entirely worn out. Such a person, though not a lunatic, was determined to be a weak man. (a) In another case it is said, that the man was foolish to imbecility, though not to downright idiocy. (6) A man who had entirely recovered from a long continuance of lunacy is said to have been of a diseased intellect from his birth. (c) A young man is said to have been of mean parts and easy to be imposed upon.(t?) A person is spojfen (r) Osmond v. Fitzroy, 3 P. Will. 130 ; Willis v. Jernegan, 2 Atk. 251 ; Ches- terfield V. Janssen, 2 Ves. 156 ; Lewis v. Pead, 1 Ves. jun. 19 ; 1 Fonb. 66. (s) Bennetr. Vade, 2 Atk. 325.— (<) Ball v. Manriin, Shelf. Lun. 25S.— (m) Tho- roughgood's Case, 2 Co. 9.—{v) Henry Pigofs Case, 11 Co. 27; Hatch v. Hatch, 9 Ves. 295. — {x) Harding v. Handy, 11 Wheat. y25 ; Chesterfield v. Janssen, 2 Ves. 156.— (!/) Tvvyne's Case, 3 Co. 83.— (2) White v. Small, 2 Chan. Ca. 103.— (a) Ben- net t;. Vade, 2 Atk. 325.— (6) Bunch v. Hurst, 3 Desau. 2D2.— (c) Wright v. Proud, 13 Ves. 138.— ((i) Portengton i'. EgJington, 2 Vern. 189. 392 COLEGATE D. OWINGS' CASE. of as being seventy-two years of age and a weak man easily to be imposed upon.(e) And again it is said that the grantor was upwards of eighty-four years of age ; blind or nearly so, and altogether dependent on the kindness and assistance of others, (y") From all which it would appear, that by weakness is meant a sort of mental imbecility approaching to the condition of one who is actually non compos mentis, and analogous to childishness and dotage, (o-) The circumstances which, when taken in connexion with this weakness of mind, constitutes a foundation of fraud whereon to vacate a contract, are various. (/i) Such as that of the deed never having been left for perusal ; or its not being read ; 'or its being prepared by the grantee and obtruded on the grantor ; or where the gift was exorbitant ; or where the party had not then the means of paying what he stipulated to pay ; or where in consequence of the relation in which the parties stood towards each other, or in any way, the grantee had obtained a commanding influence, or the entire confidence of the grantor, which was used ; as in the case of a wife who had used unwarrantable means to insinuate herself into the favour of an old man, and by imposing upon his weak- ness, had clandestinely obtained from him a conveyance of his estate ;(i) or where the consideration was greatly inadequate ; or where the weak man had conveyed all his property, leaving him- self to be fed and clothed at the pleasure of the grantee. In all these, and many other similar cases, the weakness of mind of the party, who was not altogether non compos mentis, has been taken into account with the other circumstances to make up that amount of imposition and fraud which was considered as a sufficient ground for relief (j) This plaintiff, it appears, has until tlie latter years of her long life enjoyed a full share of sound well regulated mental capacity. But when this suit was instituted she had advanced beyond the (e) Clarkson v. Hanway, 2 P. Will. 204.— (/) Griffith v. Robins, 3 Mad. 191. (g) Kaimes' Pri. Eq. b. 1, p. 1, c. 1, s. 3 &, c. 2 ; Bates v. Graves, 2 Ves. jun. 289. (A) Shelf. Lun. 265. — {i) Hervey j;. Hervey, 1 Atk. 564 ; Mountain v. Bennet, 1 Cox. 353 ; Nantes v. Corrock, 9 Ves. 1S3.— (7) White v. Small, 2 Chan. Ca. 103 ; Porteng- ton V. Eglington, 2 Vern. 189 ; Clai-kson v. Hanway, 2 P. Will. 204 ; Donegal's Case, 2 Ves. 403 ; Bridgman v. Green, 2 Ves. 627 ; Bennet v. Vade, 2 Atk. 324 ; Norton V. Relly, 2 Eden, 286 ; Wright v. Proud, 13 Ves. 136 ; Huguenin v. Basely, 14 Ves. 273 ; Harvey v. Pecks, 1 Mun. 518 ; Rutherford v. Ruff, 4 Desau. 350 ; Rowland v. Sullivan, 4 Desau. 518 ; Brogden v. Walker, 2 H. & J. 2S5 ; Gibson v. Jeyes, 6 Ves. 275. COLEGATE D. OWINGS' CASE. 393 eighty-fourth year of her age ; and upon a short interview which I had with her, after the commencement of this suit, it appeared that her age was attended with at least its ordinary infirmities. Some of the most skilful of the witnesses after a short visit, which they made to her, say, that they observed in her mental pov.-ers a slower comprehension and a diminished power of associating her ideas, which is common to old age. Other witnesses represent her mind as then in a state of absolute dotage ; in a condition of fee- bleness reduced much below that degree of power necessary to a sensible disposition of her property. And the defendant admits, that the plaintiff was then so enfeebled by age and its con- sequent infirmities, that her mind was exposed to the exercise of very undue influence by those about her. From the very nature of this mental infirmity, it is evident, that its then existence is, in itself, proof of its having commenced some time before. The transition from soundness of mind to delirium, or lunacy, may be very rapid or instantaneous ; but dotage is a slow decay, the exter- nal signs of which do not appear until after it has been going on for some time. The proofs clearly establish the fact, that the plaintiff is now in a state of dotage. But its perceivable com- mencement has not been so well ascertained. Two of the wit- nesses speak of its having been observable so much as about eight years ago. It is certain, however, that her dotage commenced some years before the institution of this suit. The proofs, in rela- tion to the plaintiff's conduct, also exhibit some instances of the milder forms of lunacy. The plaintifTs account of a hurt she had lately sustained, ascribing it to her falling in a race she ran ; the particulars she related of her visit to Annapolis ; and some other circumstances, are evidences of that species of incongruous asso- ciation and misguided direction of the mind so peculiarly charac- teristic of lunacy. Such is the sum and substance of the testi- mony so far as regards the general condition of the plaintiff's mind. In relation to the epoch of the execution of the deed of the 15th of June 1824, the proceedings and the proofs are more dis- tinct and particular. It is stated and admitted, that the plaintiff was subject to attacks of erysipelas, and was suffering under that disorder when the instrument of writing, which is the special sub- ject of this controversy, was executed. From good medical authority we learn, that erysipelas is often preceded, or attended, or succeeded by delirium ; that it is apt to affect the brain ; and 50 394 COLEGATE D. OWINGS' CASE. that the inflammation or oppression of the brain is known either, by delirium with a quick pulse ; or by stupor and slow respiration with a slow pulse. And that sometimes, when the delirium is not complete, a new face, and louder voice will stimulate the patient to attend for a few moments, and then he relapses. But glaring light, loud noises, and company increase the irritation and aggravate the delirium, (/v) It appears from the testimony, that the plaintiff had been attacked with the erysipelas some days before the 15th June 1824; that one of the attending physicians was informed by the family, that the disorder of the plaintiff was a periodical one, and generally came on about eight o'clock in the morning. Dr. Marsh says, that dur- ing the paroxysms, there was always a determination towards apoplexy. Dr. Griffitli visited the plaintiff on the 14th of June, (he thinks in the afternoon,) she then complained a good deal of her head, but was rational. The Doctor perceived no disarray of intellect ; and he thinks she was at that time sufficiently possessed of her faculties to m'i^ke a contract or dispose of her property. But after the Doctor left her, and in the evening of the same day, she w^as delirious ; or as the witnesses say, out of her head ; and her mind w^as entirely gone ; that when roused she would speak inco- herently and then sleep again ; insensible to any thing that passed ; that there was some company in the plaintiff's room, who were removed lest their conversation and noise should disturb or injure her. About sunrise of the morning of the 15th of June, the defend- ant came into the chamber of the plaintiff, and with a great noise hoisted the windows, threw open the shutters, and let into the room a strong light ; which however did not arouse the plaintiff, who had lain the whole night, and then was in a state of apparent preternatural sleep ; insomuch so, that she did not notice an attend'- ant, who, after the windows had been thus noisily opened, felt her forehead and took hold of her hand. Immediately after which the defendant was left alone in the room with the plaintiff thus abed. What passed, if any thing, while these parties were so left together in the same room, does not appear. But in a short time afterwards, Thomas D. Cockey and John Feudal, two justices of the peace, who had, the evening before, been sent for and requested, by the defendant, to attend there on that morning, were introduced into (A;) 2 Zoonomia, CI. 2, I, 3, 2; Rees' Cyclo. ver. Delirium. COLEGATE D. OWINGS' CASE. 395 the plaintiff's chamber by the defendant ; they found the plaintiff quite awake, and interchanged with her the usual salutations on the meeting of acquaintances. Immediately after the coming in of these justices the defendant produced the instrument of writing referred to in the proceedings as the deed of the 15th June 1824 ; and offered it to the plaintiff for execution. The defendant raised the plaintiff up, and assisted in seating her in bed ; and then on being accommodated by a desk placed in her lap to write upon, and having her hand steadied or guided by Justice Feudal^ the plaintiff signed the instrument of writing and acknowledged it as her act and deed ; and these justices took and certified the ac- knowledgment accordingly. This instrument of writing so signed by the plaintiff, which conveyed the whole of her property, was not then read to, or by her ; nor does it appear, that she ever once saw it before ; nor was there at that time any conversation upon the subject. No one else was then present in the room but these four persons, the two parties, and the two justices. And, after a stay of about one hour in the house, the two justices departed. (/) These justices (one of whom. Fended, only it appears but once ever saw the plaintiff at any other time during the illness under which she w%is then suffering,) both assert, that when they took her acknowledgment of the deed, she was in a sound state of mind. But other witnesses testifj', that on the morning of that day she was in rather a weaker condition than on the evening before ; that her mind was evidently wandering ; and that she was manifestly incapable of judging of the propriety or effect of any deed or other (Z) I have shewn in a former case, {H. K. Chase's case, ante, 206) that a private acknowledgment of a deed of conveyance by a feine covert was introduced here as a substitute for a fine, and that such an acknowledgment was held to be as binding upon her, although not altogether as effectual against third persons, as a fine. A person non compos mentis cannot levy a fine, or make a conveyance of his pro- perty in that mode, because the judges will not receive the acknowledgment of an insane person ; but if a judge does receive the acknowledgment of a fine from the most monstrous and visible idiot, it will be held to be final and conclusive against him ; because, as a judicial record, it cannot be questioned ; — (Mam- field's Case, 12 Co. 124, and 10 Co. 42;) yet a fine is said to be nothing more than a common conveyance. This pernicious incongruity between a conveyance by deed, and by fine in England, it is said, is about to be removed by a statute abolishing fines and recoveries, and substituting deeds of conveyance, which are to have the same effect without being considered as conclusive judicial records. — (Shelf. Lun. §• Idiots, 248, note.) But in Marjland, the acknowledgment of a deed before justices of the peace, although in some particulars treated as the substitute of a ,/ine, has never been considered, like a fine, as a judicial record, and to that extent conclusively binding upon the party. — {Leiois' Lessee v. Waters, 3 //. <§r McH. 430.) 396 COLEGATE D. DIVINGS' CASE. matter which required consideration ; i5nd that she had been in that condition some two or tliree days previous. About four o'clock in the afternoon of the 15th, Dr. Marsh visited the plaintiff and found her apparently asleep, but on being once or twice called by the defendant, the plaintiff roused up, and gave him her hand. The Doctor thinks she ansvv^ered intelligently to all the questions he asked her. But he declined to answer directly, and say, whether or not she was then in a sound state of mind ; and says, that the questions he asked her were not of a nature for him to judge of her sanity. On the next morning, the 16th, Dr. Marsh and Dr. Grif- fith at nine o'clock, visited the plaintiff, and found her in an apo- plectic state, entirely insensible and unable to speak or move ; and requiring all the strength of one of them to straighten her arm to bleed her.(??i) After being bled she continued to be perfectly comotose, or absorbed in a preternatural sleep, or stupor, until day- break of the 17th, when she awoke ; but was still incoherent in her mind. After which she gradually recovered. The instrument of writing, v/hich was thus signed on the 15th of June 1824, had been prepared by Justice Feudal, as he states, for and at the request of the defendant about six months previous ; but the defendant admits, in her answer, that she had caused it to be prepared by him in 1822. During the greater part of the inter- val between the periods of its preparation and execution, the plain- tiff had enjoyed her usual state of good health. About six months before this instrument was executed, in a conversation upon the subject of the provision which the plaintiff had promised, or intended to make for the defendant, the plaintiff declared to the defendant, that she would leave her no more than a life estate in her property. And the plaintiff often before and after made simi- lar declarations. The defendant had always continued to reside with the plaintiff, who had latterly confided the management of her estate very much or altogether to the defendant, who had ahvays conducted herself toward the plaintiff as a dutiful daughter ; and the plaintiff had great confidence in the defendant. Upon the whole then, and after the most careful investigation of this case, thus far, there appears to be no one ground upon which this deed can be permitted to stand. It was prepared at the sole instance of the defendant. It was never at anv time submitted to (m) "A very npoplfxy, lethargy, mulled, deaf, sleepy, insensible." — Coriolanus, act 4, s. 5. COLEGATE D. OWINGS' CASE. 397 the consideration of the plaintiff, or in her possession for an instant before its execution ; and at that time, it was neither read by or to her, or explained to her in any form whatever, (n) It conveys to the defendant, in the most full and comprehensive terms, the whole and entire estate real and personal of the plaintiff, without condi- tion or reservation of any kind whatever. It professes to have been made for value received, but was in fact signed without the least valuable consideration ; and, if sustained, would leave the plaintiff utterly destitute and pennyless. At the time of the exe- cution of this deed the plaintiff was upwards of eighty-four vears of age; and was then, and had been for some time previous in a state of general dotage : and besides, was at the time suffering under an attack of erysipelas, that grievously affected her mental faculties, from which attack she could not have immediately recovered a perfectly sound state of mind, even after that bodily disease had intermitted or passed off, and which disorder must have considerably accelerated the previously commenced devasta- tions of age.(o) This deed must therefore be annulled, as well because the plaintiff was, at the time it was executed, actually non compos mentis ; as on the ground, that it was obtained by the most gross abuse of confidence, and by a fraudulent combination ; for, as it has been truly said, fraud and deceit by him who is trusted, is most odious in law.(/)) Thus far the plaintiff will obtain all the equity she asks. But he who asks equity must do equity. The plaintiff herself seems to admit in her bill, when taken in connexion with her late hus- band's will, which she exhibits as a part of it, that she stands here in some sort encumbered with an equity due to the defendant. And the only difference between these parties as to that claim is as to its extent. The defendant claims an absolute estate in fee sim- ple in the property of the plaintiff after her death. While, on the other hand, the plaintiff insists, that the defendant's claim extends no further than a life estate with remainder to her lawful children, should she have any. The bill states, that the plaintiff was seized in fee simple of a tract of land called ^'' John 8f Thomas^ Forest ;^^ that at an early period of her life she married Jolm C. Owings, who made his will, (n) Thorpughgood's Case, 2 Co. 9. — (o) Attorney General v. Parnthcr, 3 Bro. C. C. 443 ; 1 London Jurist, 340 ; Scrgeson v. Sealcy, 2 Atk. 413. — (/)) Fcrmor's Case, 3 Co. 79. 398 COLEGATE D. OWINGS' CASE. which is exhibited as a part of the bill, and died in February 1810 ; that the plaintiff had intended, by her last will, to make some sufficient provision for the defendant, the nature of which is thus described. After some specific legacies to the plaintiff's chil- dren and grand-children, to give the defendant an estate for life in her real property, the residue of her personal estate, and a remain- der in the real estate to the defendant's children should she have any ; and in the event of failure of issue lawfully begotten, then to the other children of the plaintiff to be equally divided among them. That the defendant being wholly dissatisfied with such a provision, and insisting on an unconditional absolute estate in the whole, the plaintiff then openly avowed her determination to make no will ; to die intestate, and to leave her property to pass and be distributed according to law. The defendant admits these facts ; but alleges and insists, that four of her sisters having been amply provided for by the late Thomas C. Deye their uncle, the plaintiff promised the late John C. Owings the defendant's father, that she would give her estate to the defendant. In consequence of which, and in confident reliance upon that promise, her father made his will, in the manner he did, leaving the defendant nothing more than a mere token of his affectionate recollection. And the defend- ant avers, that the deed of the 15th of June 1824 was made with a view to and in fulfilment of that promise. From the proofs it appears, that Johii C. Ovnngs and the plain- tiff his wife during their marriage had eight children, who survived him ; and that he had a large estate consisting of real and personal property within this State and elsewhere ; that his uncle the late Thomas C. Deye, was seized of a considerable real estate, which by his last will he devised to four of the daughters of his nephew John C. Owings, each of whose share contained from four hundred and fifty to six hundred acres of land, the least of which was esti- mated as worth about $16,000; that Joh7i C. Owings, the late husband of the plaintiff, by his will, and otherwise, gave the whole of his real and personal estate to his two sons Thomas D. Owings and John C. Owings ; except some personalty, which he gave to his wife, and some other property, which he gave to his daughters in payment of a debt he owed them. The property he gave to his son Thomas is said to have sold for $20,000. In his will the late John C. Owings, the father of the defendant, says — " I give to my daughter Charlotte Deye Owings a family Bible and a spinning wheel as a token of my affection, it being my COLEGATE D. OWINGS' CASE. 399 desire and expectation, that her mother will provide for her, she having fully in her power to do so. Item. I give unto my four daughters Mary C. J\'esbit, Charcilla Cockey Deye Oioings, Penel- ope D. Price, and Frances Thwaites Deye Owhigs, one family Bible each, they having been heretofore provided for by my uncle the late Thojnas Cockey Deye.'''' Thus it appears to have been the intention of the testator John C. Owings so to dispose of his property as that the provision for each of his children, noticed in his will, should be entirely or nearly equal. That is, of his eight children, he liimself provided for two ; his uncle had portioned four ; and a seventh he left to be provided for by her mother. Of his eighth child, Cassandra, he takes no notice in his will ; she had married, disposed of herself, and was then resident at a great distance from him. It appears in proof, that the " desire and expectation," thus expressed by this testator, and the exclusion of his daughter Charlotte from any share of his property, was in consequence of, and founded upon an express promise made to him by the plaintiff, (at a time when it is admitted on all hands she was in a perfectly sound state of mind,) that she would give all her property after her death to their daughter, this defendant, in fee simple ; and in full confidence, that this pro- mise so made to him for the benefit of Charlotte would be faithfully observed and kept, he made his will, and in about one month after- wards died. Some time after the death of Jolm C. Owings, his son John, being sick and in a rapidly declining state of health, declared his intention to devise his estate to his sister this defendant, when his mother, the plaintiff, dissuaded him from doing so, and induced him to give it to his sister Cassandra, promising him, that if he would do so, she the plaintiff would provide for the defendant. Upon the faith of which promise he made his w411, devised his estate to his sister Cassandra, and died. There is nothing said in the pleadings about this devise by John to Cassandra ; or as to John's inducement for making it. But it may be fairly inferred, that the plaintiff was actuated by a strong feeling of equity towards all her children ; and knowing, that she had promised to give her estate to the defendant, she washed John's to take another direc- tion, and be given to Cassandra, in order to provide for her; and also to prevent the defendant from obtaining a double por- tion. Taken in this point of view, I have deemed it a matter which might be noticed as a corroboration of the proofs in relation 400 COLEGATE D. OWINGS' CASE. to the promise made by the plaintiff to her late husband for the benefit of the defendant. There can be no doubt, that the plaintiff always admitted she had intended to give a life-estate, at least, in her property to the defendant. Much testimony has been collected in relation to what the plaintiff had said since the death of her husband, as to the manner in which she intended to provide for the defendant. But the greater part of these declarations are proved to have been made subsequently to that period of time when her mental decay had commenced ; and therefore, so far as they may have been intro- duced as evidence of the affirmance of an equivocal or voidable promise, deserve little attention. But it is of no kind of import- ance to ascertain w^hat were, at any time, the limits of the plain- tiff's intended bounty to the defendant ; because, as to that her wull is the law. Therefore, all the testimony which relates to her declarations of benevolent intentions, may be at once put out of the case. The question here is, not what the plaintiff at any time kindly intended ; but whether she had made such a promise as is alleged, and what have been her admissions and acknowdedgments of that promise, if any. As to which, it appears, that when the plaintiff was called on, at a time about the commencement of her Intellectual decay, tO say w^hether she had actually made any such promise to her late husband in favour of the defendant, or not ; and whether any thing was then said about her giving to the defendarvt any thing less than an absolute estate of inheritance? she distinctly acknowledged, that she had made such an unconditional promise ; and that nothing was then said about an estate for life. And the plaintiff has since made similar acknowledgments as to the nature and extent of her promise. The circumstance, that one of her children had been cut off from any participation in the father's property, because of her having promised to provide for such child, was calculated, from its very Interesting nature, to make a strong and lasting Impression, and likely to be distinctly recollected even after her mind had fallen into a great degree of decay. (g) These acknowledgments of the promise are mainly corroborated by the circumstances of the late John C. Owings^ family at the time of his death ; and tlie disposition which he made of his estate by his will. His other children, there spoken of, having had estates {q) Bennet v. Vade, 2 Atk. 325. COLEGATE D. OWINGS' CASE. 401 of inheritance given to them by himself, or his uncle, shews what was his understanding of the plaintiff's promise at the time it was made to him ; and that in the "desire and expectation," expressed in his will, he alluded to a provision having the nature and extent of the others there made or spoken of, and not merely a fettered donation, or an estate for life only. Hence, all circumstances considered, I have come to the conclusion, that the promise was made by the plaintiff, and to the extent alleged by the defendant. To constitute a valid contract, the performance of which may be enforced either at law or in equity, it must be founded on a sufficient consideration. That is, the moving cause of the contract must be some benefit to the person called on to comply with it ; or a benefit to a stranger ; or some damage or loss sustained by the party claiming the performance ; which benefit or loss has accrued or happened at the request or instance of the party of whom the claim is made.(s) Upon a mere naked pact or agreement, not founded on any such consideration, no suit, according to our law, can be sustained either at law or in equity. In the case under consideration, the defendant, it is shewm, did sustain a loss by reason of the promise of the plaintiff. This promise, however, was not made by the plaintiff to the defendant ; and yet it is, in general, essential to the nature of a consideration, that it should move from the party asking a perform- ance of the contract : for if such party is a mere stranger to the consideration, having himself sustained no loss, nor conferred any benefit on the opposite party, he himself has no claim to have such contract fulfilled. But a father is under a natural obligation to provide for his children ; and therefore, a promise made to him for their benefit, as in this instance, may well extend to them. As where a father was about to cut jGIOOO worth of timber to raise a portion for his daughter, the heir promised him, that if he w'ould forbear from felling the timber, he, the heir, would pay the daughter j£1000. The father did abstain, in consequence thereof, from cutting the timber, and died. It was held, that the contract with the father enured to the benefit of the daughter, was founded on a sufficient consideration, and that the daughter might sustain an action upon it against the heir, and recover.(/) (s) Bunn v. Guy, 4 East, 194; Violctt v. Patton, 5 Cran. 150.— (0 Button v. Poole, 1 Vent. 318 ; Martin v. Hind, Cowp. 443. 51 402 COLEGATE D. OWINGS' CASE. It is now regarded as the well settled doctrine of the Court of Chancery in England, that if a person had, before his death, communicated his intention to make, or alter his will, and give a legacy, or portion of his property, to a certain individual, and the heir, or any one else, had interposed, and prevented the making or alteration of a will by a promise to pay the amount of the proposed legacy, to transfer the property, or to give any thing else in lieu of it to the individual thus intended to be benefited ; that the promise so made is binding, as being made on a consideration of loss to the individual ; who may therefore enforce the specific performance of it in a court of equity. The statute of frauds has been repeat- edly urged as an objection against such promises, and the objection has always been overruled. The parent or friend of the individual intended to be benefited, being put at rest, and relying upon such promise, dies in perfect confidence that it will be fulfilled. But if the individual who has been so disappointed of an express provi- sion by the deceased, could not have the promise enforced, his loss would be altogether irretrievable. The heir, or person making it, would be suffered to frustrate the intention of the deceased; to practise a fraud with perfect impunity ; and the statute of frauds, if it were allowed to apply, would be made to operate for the pro- tection instead of the prevention of fraud. (m) This doctrine, which has been so long and so well established in England, has been finally and solemnly recognised by the court of the last resort in this State. The case is to his effect : Charles Browne being seized of a considerable real estate in Maryland, declared his intention so to dispose of it, that if this eldest son and heir, James Browne, should inherit or succeed to the estate of Andrew Cochrane, in Scotland, then it should pass to and vest in his second son Basil Browne. Upon which James promised his father, that in the event of his obtaining Cochrane^s estate, he would convey the Maryland estate to Basil : provided his father would make no will, and permit the Maryland estate to descend to him, James, as his heir at law. Charles, the father, in consequence thereof, died intestate, and suffered the Maryland estate to descend to James ; who afterwards succeeded to the estate of Cochrane. Upon a bill filed by Basil, the promise was held to be founded on (u) Chamberlaine v. Chambeilaiiie, 2 Fieem. 34 ; Oldham v. Litchford, 2 Freein. 284 ; Thynn v. Thynn, 1 Veni. 296 ; Drakeford v. Wilks, 3 Atk. 539 ; Reech v. Ken- negal, 1 Ves. 124; Dixon v. Ohnius, 1 Cox. 414; Stickland v. Aldridge, 9 Ves. 519; Mestaer r. Gillespie, II Ves. 638 ; Chamberlaine i>. Agar, 2 Ves. &. Bea. 259. COLEGATE D. OWIXGS' CASE. 403 a sufficient consideration, and it was decreed, that James should convey the ]?.Iaryland estate to Basil accordingly. (i') The defendant having, as appears in proof, lost, or failed to obtain an estate of inheritance, by reason of the plaintiff's having undertaken to give her such an estate in her property after her death, it is clear, according to the established principles of equity, that the defendant should, in some form or other, have the full benefit of that promise assured to her. The whole controversy is now, perhaps, as fully presented to this tribunal as it ever can be hereafter, by any other or different form of procedure. It would, therefore, seem to be incumbent upon the court now, finally to dispose of the whole matter, as well on behalf of the defendant as on the part of the plaintiff. To stop short with decreeing, that the deed of the 15th of June should be annulled, w^ould be to dis- pose of no more than the one-half of the matter in dispute. It would be leaving the claim of the defendant, which has been so fully developed by the pleading and proofs, to be determined at a future day, and most probably between other parties ; the defend- ant, if she lives, on the one hand, and the representatives of the plaintiff on the other, who may be very numerous ; and the proofs, which are now strong and satisfactory, may be then very much wasted, or totally lost. There are many cases in which this court, in order to dispose of the whole matter in controversy, grants the relief to which the plaintiff has shewn himself to be entitled upon terms. No one is allowed to take a fraudulent advantage of the weakness or neces- sities of another. As in cases of sales by expectant heirs ; in cases between guardian and ward ; in cases of usury, and the like. But in all such instances, when the court grants the relief prayed, it is upon the terms, that the plaintiff who asks equity shall do equity. And therefore, the fraudulent securities are allowed to stand for what is really due, or they are vacated only upon condition, that the plaintiff performs that which in equity and conscience he ought to perform. (z^) Upon these principles this fraudulent conveyance of the loth of June might be vacated only upon the condition, that the plaintiff should now, in conformity with her promise, make a settlement upon the defendant. (p) Browne v. Browne, 1 H. &. J. 430.— (?i') Twisleton v. Griffith, 1 P.Will. 310; Hylton V. Hylton, 2 Ves. 548 ; Nesbit v. Ncsbit, 2 Cox. 183 ; Wharton v. May, 5 Ves. 27. 404 COLEGATE L). OWINGS' CASE. On a proper bill to account, after a decree to account, both parties are considered as actors, and therefore, according as the balance may be shewn, there may be a decree in favour of the defendant, or in favour of the plaintiff. (a:) But it is not essentially necessary, in other cases, that the decree should directly respond to the special l^rayer of the bill, by merely denying relief upon the case ; or by granting it to the plaintiff, either conditionally or partially, or entirely as prayed. The matter in controversy being fully devel- oped, a decree may, in several instances, be framed to meet the case disclosed, altogether apart from the relief which the plaintiff asks for himself. (?/) As where a bill is filed against two or more defendants, and it appears that some of them are answerable only in the second degree, that is, as agents of a principal ; in such case the principal will be first charged, and the agents only in the second degree, or upon the default of the principal ;(c) and so too, where it appears that one is principal, and the others are sureties, the court will, if called on when about to give the plaintiff the relief he seeks, go on to decree over as against the one w'ho is principal, that in case the decree in favour of the plaintiff is satis- fied by the sureties, they shall be reimbursed by their principal, (a) And where there are two or more defendants, a decree may be passed as between any two of them, when a case is made out between them by evidence arising from the pleadings and proofs between the plaintiff and defendants. (5) And also where, on a bill for a specific performance, the defendant proves an agreement different from that insisted on by the plaintiff, he may have a decree upon his answer submitting to perform the agreement ; and this without a cross-bill, which was formerly deemed necessary. (c) And it has been the practice of this court in similar cases, without a cross-bill, to decree as w^ell in favour of the defendant, as of the plaintiff, where it appeared from the nature of the agreement or transaction between them, that each was bound to paj money or to perform some act for the benefit of the other, (c?) And even a direct decree in favour of the plaintiff may, in its consequences, (x) Done's case, 1 P. Will. 263; Anonymous, 3 Atk. 691 ; Honvood v. Schmedes, 12 Ves. 316 ; Bodkin v. Clancy,! Ball & Bea. 217 ; Davis v. Walsh, 2 H. & J. 329 ; 1S25, ch. 1.5S. — (y) Johnson v. Johnson, 1 Mun. 554, note. — (z) The Charitable Corporation V. Sutton, 9 Mod. 358 ; 2 Atk. 406.— (a) Walker v. Preswick, 2 Ves. 622 ; Taylor i'. Ficklin, 5 Mun. 25; McNiel i». Baird, 6 Mun. 316.— (6) Chamley v. Dunsany, 2 Scho. 8c Lefr. 709, 718 ; Corny v. Caulfield, 2 Ball £i Bea. 255.— (c) Fife v. Clay- ton, 13 Ves. 548; Higjinson f. Clowes, 15 Ves. 525. — (d) Dorsey r. Campbell, ante, 356. COLEGATE D. OWINGS' CASE. 405 operate as a decree binding his interests in like manner as if it had been passed directly against him. For it is now established, that if a bill filed by a mortgagor for redemption, is dismissed, the money not being paid at the time specified in the decree for redemption, that operates as a foreclosure ; and is equivalent to a decree for a foreclosure. (e) Or there maybe a decree against both parties, as where the contest is as to some private right of property-, and it appears from the proofs, that the title is in neither, but in the State, both parties may be perpetually enjoined from usino- the property to the prejudice of the public. (y') In such cases there can be no danger of surprise, or want of opportunity to adduce proof; because the indirect, inverted, or constructive decree, is confined to that subject alone, which the parties themselves have, by their pleadings, spread before the court. Here the bill and answer disclose the whole' matter in dispute relative to the promise of the plaintiff, as fully as it could be done by a cross-bill. The defendant not only sets out and relies upon the promise of the plaintiff, but attempts to sustain the deed of the 15th of June, upon the ground of its being a mere fulfilment of that ' promise. Thus representing the promise as the original contract. This allegation of the defendant has been put in issue as a material part of the subject in controversy ; and like every other part of the matter in issue, it may, without the unnecessary circuity and expense of a cross-bill, be met by such a decree as justice requires, either in favour of, or against the plaintiff. (g-) Here again, however, we are met by another obstacle, arising from the present unsound intellectual condition of the plaintiff. And that too, whether the decree in her favour be upon terms ; or it be in part against her. But a change in th^ mental condition of a contracting party, by his becoming afterwards a lunatic, certainly ought not to release him from his liability. And it has accordingly been held, that the rights of the parties remain unchanged by such an act of God. The only difficulty is how to come at the remedy. If the legal estate is vested in trustees, a court of equity ought to decree a performance ; but if it be vested in the lunatic himself, that, it was formerly held, might be an insuperable obstacle to any adequate relief here, because this court could by its ordinary powers (e) Stuart r. Worrall, 1 Bro. C. C. 581 ; The Bishop of Winchester v. Paine, 11 Yes. 199.— {/) Penn v. Ld. Baltimore, 1 Ves. 454; Barclay r. Russell, 3 Ves. 436 ; Rex v. Leigh, 4 Burr. 2146.— (g) Harding v. Handy, 11 Wheat. 120 ; Stewart V. Mechanics and Farmers Bank, li) John. 505. 406 COLEGATE D. OWINGS' CASE. only give relief by decreeing a conveyance, which the lunatic could not be ordered to make, because of his incapacity to contract. (A) But here, although the legal estate is vested in the plaintiff her- self; yet if the matter were left at law no relief could there be obtained against the plaintiff during her life ; nor could a specific performance be obtained at any time against any one at law : therefore, from the very nature of the case, the relief necessary to meet it, can only be obtained, if at all, in a court of equity. It is laid down, that if a man by age, or disease is reduced to a state of debility of mind, which though short of lunacy, renders him unequal to the management of his affairs, the court will, in respect of his infirmities, appoint a guardian to answer for him, or to do other acts, as his interests, or the rights of others may require. (i) And it is said, that where one who could not be proved a lunatic was relieved from a deed obtained of him by fraud and imposition upon his weakness, it was further ordered, that he should not exe- cute any future deed, but with the consent of the court. {j) It was upon these authorities, that I passed the order of the 17th of April last. I deemed it then necessary to extend to the plaintiff the especial protection of the court ; because of her age and infirmities. And if by reason of that infirmity merely, the court can in no way cause that to be done, v.-hich when in a sound state of mind she had bound herself to do, the most manifest injustice might ensue ; and that too not from any substantial, but merely because of a technical or formal objection. If, as has been said, this court can declare, that she shall not hereafter execute any deed without its consent ; the converse of the proposition seems necessarily to follow-^that this court can by its consent or decree direct a conveyance to be made by her to the defendant according to the promise by which she is bound. There can be no doubt, that a specific execution of this promise would be decreed against the legal representatives of the plaintiff (h) Owen v. Davies, 1 Ves. 82; Pegge v. Skynner, 1 Cox. 23; Hall v. Warren, 9 Ves. 611 ; Shelf. Lun. 429.— (i) Levingr. Caverly, Prec. Chan. 229 ; Sheldon v. Aland, 3 P. Will. Ill, note ; Bird v. Lefevre, 4 Bro. C. C. 100; Wilson v. Grace, 14 Ves. 172 ; Attorney General r. Waddington, 1 Mad. Rep. 321 ; Hovvlett v. Wil- draham, 5 Mad. 423 ; Wartnaby v. Wartnaby, 1 Jac. Rep. 377 ; Ex parte Clarke^ 2 Russ. 575 ; Chambers v. Donaldson, 9 East, 471 ; Whitehornr. Hines, 1 Mun. 557; Horner v. Marshall, 5 Mun. 466; 1 Fonb. 64; Mitf. Plea. 103; Prac. Reg. 71. {j) Lord Donegal's Case, 2 Ves. 408. COLEGATE D. OWIXGS' CASE. 407 if she were dead.(/t) And it is equally clear, that if she were now in her sound mind she herself might comply with this promise either by a last will devising her property to the defendant; or by a deed to take effect after her deatli.(/) But she is not now, nor is she ever likely again to be in a mental condition, understand- ingly of herself, to execute any such instrument as can pass any right in her property. It has, however, been expressly provided, that persons non compos mentis seized or possessed of any lands bound by an agreement to convey, made by some person having a right to make such agreement, and therefore liable to a decree for conveyance on a suit for specific performance, shall convey and assure such lands in such manner as the Court of Chancery shall direct ;(/«.) and that in all cases where a decree shall be made for a conveyance, and the party shall neglect to comply therewith, such decree shall be considered to have the same operation as if the conveyance had been executed conformably to such decree, (n) Upon the whole, I arh, therefore, of opinion, that there is now no other course left but to appoint a guardian for the plaintiff, who shall be directed to execute, in her name, to the defendant such a deed as shall be deemed a sufficient specific performance of her promise, to take effect after her death. Whereupon it is decreed, that the said defendant, Charlotte C. D. Owmgs, be and she is hereby directed and required forthwith to brino- into this court the orisrinal instrument of writing in the o o o proceedings mentioned, purporting to be a deed made by the said plaintiff, ColegateD. Oz«w?o-s, unto the said defendant, Charlotte C. D. Oivings, on the 15th day of June" 1824, to be cancelled and annulled ; and the same is hereby declared to be null and void ; and the record which hath been made of the said instrument of writing among the land records of Baltimore County Court shall be and the same is hereby declared to be utterly void and of no effect whatever, because of the said instrument of writingr having been obtained from the said plaintiff Colegate D. Owings by fraud and at a time when she was non compos mentis. And it is further decreed, that William Gwynn of the city of Baltimore be and he is hereby appointed guardian of the said plaintiff Colegate D. Owings for the purpose, and with full power (k) Goilmere v. Battison, 1 Vern. 4S.— (/) Drakeford v. Wilks, 3 Atk. 540. (m) 1773, ch. 7, s. 1 ; 4 Geo. 2, c. 10; Kilt. Rep. 249; Bullock v. Bullock, 1 Jac. 8t Wal. .5S3.— (n) 17S5, ch. 72, s. 13; 1S26, ch. 1-59. 408 COLEGATE D. OWINGS' CASE. and authority to make, execute, acknowledge, and deliver accord- ing to law a deed of conveyance as hereinafter described, in the name and behalf of the said plaintiff Colegate D. Owings, unto the said Charlotte C. D. Owings. And it is further decreed, that the said plaintiff Colegate D. Owings forthwith execute, acknowledge, and deliver, according to law, by her said guardian William Gwynn, unto the said defendant Charlotte C. D. Owings a good and sufficient deed, thereby con- veying all the real estate of the said plaintiff Colegate D. Owings in the proceedings mentioned, called " John Sf Thomas^ Forest,^^ unto the said defendant Charlotte C. D. Owings, her heirs and assigns for ever ; and also by the same deed conveying, transferring, and making over unto the said defendant Charlotte C. D. Owings, her executors, administrators and assigns, all the personal property of the said plaintiff Colegate D. Owings, which shall be and remain at the time of her death. And in the said deed of convey- ance it shall be expressly stipulated and declared, that the same shall in no respect take effect or have any force or operation what- ever during the lifetime of the said plaintiff Colegate D. Owings ; but the same shall take effect and be in full force and operation upon and immediately after the death of the said plaintiff Colegate D. Owings. And it shall be further expressly stipulated and declared in the said deed of conveyance, that if the said defendant Charlotte C. D. Owi7igs shall die without leaving any lawful issue, in the lifetime, and before the death of the said plaintiff Colegate D. Owings, then and in that case the said deed, of conveyance and every part thereof shall be utterly null and void to all intents and purposes whatever. And it is further decreed, that the said defendant Charlotte C. D. Owings pay unto the said plaintiff Colegate D. Owings her full costs expended in this suit, to be taxed by the register. Soon after the passing of this decree the plaintiff died, and yet an appeal was prayed in her behalf, and the case taken to the Court of Appeals. After which, by a petition signed by one of her solicitors the court was asked to pass an order directing the defend- ant to pay the costs as taxed by the register. Sth J\'ovember, 1828. — Bland, Chancellor. — It may not be amiss here to observe, by the way, that in England an appeal from a decree in chancery may be had at any time within five years, with COLEGATE D. OWINGS' CASE. 409 a saving in favour of persons 71071 compos mentis. {0) Here it is declared, that all appeals shall be made and entered within nine months from the time of making the decision, and not afterwards ; unless it be alleged on oath, that such decree was obtained by- fraud or through mistake ;(p) but there is no saving in favour of persons non compos mentis. Where a decree has been passed, as in this instance, affecting as well the real as the personal estate of the parties, and the suit abates by the death of either of them, as the realty passes to the heirs and the personalty to the administrator or executor of the deceased, in order to embrace the whole subject of the decree, it should be revived by or against both the heirs and personal repre- sentatives of the deceased party. But such a comprehensive revi- val of the suit is not in all cases indispensably necessary, as each class of the representatives of the deceased may revive and prose- cute the suit to the extent of their respective interests, and no further. (g) It is said, that in England a suit cannot be revived merely to recover costs not taxed : this however has been regarded there as a very odd rule ;(r) and having met with no instance of its having been acted upon by this court, I feel no hesitation in rejecting a rule which has been so often condemned, and which appears to be now reluctantly tolerated by the tribunal in which it originated. Be that however as it may, in this case the costs, it is alleged, have been taxed, and therefore the amount of them, as a liquidated decreed debt, on the death of the plaintiff passed to her personal representative. Consequently, in order to recover that debt this decree may well be revived by her executor or adminis- trator alone ; but no attempt appears to have been as yet made so to revive it. Whereupon it is ordered, that the said petition be and the same is hereby dismissed with costs. After which the case having been brought before the Court of Appeals, the appeal was dismissed. Owings v. Owings, 3 G. & J. 1. (o) Shelf. Lun. 424.— (p) 1826, ch. 200, s. 14.— (5) Ferrers r. Cherry, 1 Eq. Ca. Abr. 4.— (r) 2 Mont. Dig. 524. 52 410 MACKUBIN V. BROWN. MACKUBIN V. BROWN. In a creditor's suit the decree for a sale of the realty, being founded on the fact of the insulHciency of the personal estate, necessarily establishes that point ; and, conse- quently, after that, the coiTectness of the administrator's accounts cannot be im- peached for the purpose of turning a creditor, who had come in under the decree, away from the realty to seek payment- of the personalty. After the notice to creditors had been given, a sale had been made, and a distribution of the proceeds had been awarded to creditors, claimants, who had been infants, were allowed to come in soon after they attained their full age, and to have a fur- ther sale of the realty made for the satisfaction of their claims ; and that too, after a partition had been made of it among the heirs of the deceased debtor. A trustee, under a decree for the sale of property, who fails to bring into court, or to account for the proceeds of sale, or the bonds and notes taken by him to secure the payment of the purchase money, may be charged with the whole amount of the proceeds according to his report of the sales. But, by thus holding the trustee liable, the court does not thereby virtually exonerate any one else. A trustee cannot be permitted to apply a part of the proceeds of sale without any authority from the court, and then to come in to have it allowed as a set off against the claim of the party to whom it was paid. It appears, that William Hammond of Ann Arundel county, by his will and codicil, made on the 24th March 1807, ?ifter devising several parcels of his land to particular persons, and emancipating some of his negroes, directed, that all the residue of his real estate should be sold by his executors for the payment of his debts ; and the surplus of the proceeds to be invested and applied in satisfac- tion of legacies, as therein specified among the children of his sis- ters ; and he appointed Basil Brown and William H. Marriott his executors. After w^hich he died ; his will was proved according to law ; and,, on the 7th of October 1807, his executors by a note addressed to the register of wills renounced the executorship ;(c) and administration, with the will annexed, was immediately granted to Basil Brown. And, on the same day, Basil Brown filed his peti- tion in this court, stating these facts and alleging, that he was interested in the estate as appeared by the wall, and prayed that a trustee might be appointed to carry the will into effect. Whereupon, and according to the act of assembly,(6) a decree w^as passed ex parte ^ on the 12th of October 1807, directing the real estate of the late William Hammond to be sold ; and Basil (a) 1798, ch. 101, sub-ch. 3, s. 7 ; Dep. Com. Gui. 69 ; 3 Bac. Abr. 43.— (6) 1786i, ch. 72, s. 4. MACKUEIN V. BROWN. 42 ^ Brown was appointed the trustee to make the sale upon the terras that the purchaser should pay one-fifth of the purchase raoney on the day of sale, and give bond with approved surety for paying the residue in four equal annual instalments with interest from the day of sale. In virtue of this decree the whole was sold at four different times. The last of which sales was made on the 25th of August 1809 ; and all of them were finally ratified. It does not appear, from any thing to be found among the proceedings, that any part of the purchase money, or any bond of any one of the purchasers, except that of Lewis Buvally was ever brought into court by this trustee jBrotwi ; who died some short time previous to the 15th of June 1815. It appears, that the trust reposed in Basil Brown having been left by him unfinished at the time of his death, Thomas H. Bowie v,'a.s, on the 15th of June 1815, appointed to complete the trust ; who also having died before it was finally closed, Israel Davidson was, on the 5th of October 1825, appointed as his successor for that purpose. After the death of Basil BrowUy Richard Mackubin, on behalf of himself and the other creditors of Brown, on the 12th of June, 1816, filed this bill here, in which he alleges, that Brown had died intestate without leaving a sufficiency of personal estate to pay his debts ; and thereupon prayed, that his real estate might be sold for that purpose. The heirs of Brown, some of whom were infants, were alone made parties ; and, on the coming in of their answers, admitting the insufficiency of the personalty, a decree was passed, on the 28th of June, 1816, appointing Matthias Hammond, who was one of the administrators of Basil Brown, to make sale of his real estate for the payment of his debts ; and upon the death of Matthias, Rezin Hammond was appointed trustee to complete the trust, and a part of the real estate of Basil was accordingly sold. Public notice was given as usual to the creditors of the late Basil Brown, to bring in their claims, and the time limited for them to do so had long elapsed. On the 5th of July, 1826, Eli Marriott and Cornelius Shipley and Sarah his wife, filed their petition in this case, in which, after setting out those circumstances, they state, that Eli and Sarah are the children of Mary Marriott, the sister of the late William Ham- mond, and, as such, legatees under his will ; that the shares to which they were entitled, were adjusted and awarded to them in that case ; that Basil Broivn, who as trustee made sale of the late William Hammond^s estate, received the purchase money, but had 412 MACKUBIN V. BROWN. not, during his life, nor had his administrators, since his death, paid to them their legacies so bequeathed and assigned to them ; and that these petitioners, Eli and Sarah, having been infants and but recently attained their full age, were therefore prevented from making an earlier application. Whereupon they prayed, that the present trustee might be ordered to make report of his proceedings ; that they might be admitted to come in as creditors under the decree ; that the proceeds of the sales already made, might be applied to the payment of their claims rateably with other claims ; that the trustee might be ordered to make sale of so much more of the real estate as would be sufficient to satisfy the claims against the late Basil Brown ; and that they might have such other relief as the nature of their case required) &c. Qth July, 1826. — Bland, Chancellor. — Ordered, that the peti- tioners be, and they are hereby permitted to come in as plaintiffs and creditors in this case, as prayed ; subject to all legal objections that may be made against their claims. And it is further Ordered, that Rezin Hammond, the trustee, be, and he is hereby directed and required to make report to this court of the proceedings had under the said decree for the sale of the real estate of the late Basil Brown. And it is further Ordered, that the said trustee proceed to make sale of so much more of the said real estate as, in addition to the sales heretofore made, will be sufficient to discharge all the claims that have been exhibited against the said estate. On the 9th of August, 1826, Samuel Vansant and Mary Ann his wife, filed their petition, alleging that she was another of the children of Mary Marriott, and as such a legatee under the will of the late William Hammond. In other respects the matter, state- ments, and prayer of this petition were similar to that of Marriott and Shipley. On the 25th of January, 1827, Marriott and Shipley filed another petition, alleging that the trustee had made a report of the proceedings under the decree, but had taken no steps for a sale; and praying that he might be ordered to proceed to sell without delay ; and, in respect to the great lapse of time, that the sale might be for cash ; which was on the next day ordered accord- ingly. On the 6th of March following, they ffied a third petition, in which they allege, that a copy of their last petition, and the order thereon, had been served on the trustee, but that, as they verily believed, he had taken no steps to sell the lands, and that he did not intend to execute his trust. Whereupon they prayed, that MACKUBIN V. BROWN. 4] 3 he might be removed, and another trustee appointed in his place. And accordingly, by an order of the 8th of the same month, he was removed, and jYicholas Brewer, jun'r, appointed in his stead, who gave bond, and proceeded to execute the trust. But on the 16th of April, 1826, Thomas I. Stockett and Clarissa his wife, filed their petition, in which they stated, that Clarissa was one of the children of the late Basil and Henrietta Brown ; and, as such, was entitled to one-eighth part of the sum bequeathed by the late William Hammond to Henrietta^ and also to one-eisrhth part of the real estate of the late Basil ; and they objected to any further sale being made of the real estate of the late Basil as prayed by the petitioners Marriott and Shipley, and Vansant and wife ; first, because, their claims were not brought in within the time limited by the notice to the creditors of the late Basil ; and his creditors, who had come in according to that notice, having been satisfied, a partition of the residue of his real estate had been, long since, made among his heirs, of whom Clarissa was one : secondlv, because the personal estate left by the late Basil was sufficient to pay all his debts, if it' had been properly administered ; but it had been wasted ; and the administrator alone was now liable to these claimants : and thirdly, because the late Basil ought not to be charged with these claims, since, although he sold the real estate of the late William Hammond, he had not received the purchase money, which, in fact, had been received by his administrator, Matthias Hammond. The petitioners further stated, that the trustee, JS%cholas Brewer, had advertised the real estate of the late Basil Brown for sale, which would take place in a few days. Where- upon they prayed, that the sale might be suspended ; that the claims might be rejected; and that they might have such relief as the nfiture of their case required, Sec. 20th April, 1827. — Bland, Chancellor. — Ordered, that the matter of the aforegoing petition be heard on the eighteenth day of May next, or earlier with the consent of parties ; and that depositions in relation thereto, taken before the commissioners appointed to take testimony in the city of Annapolis or before any justice of the peace elsewhere, on giving three days' notice as usual, be read in evidence on the hearing. And it is further ordered, as prayed, that the said JVicholas jBrezfer, jun'r, the trustee, suspend all further proceedings until further order : Provided, that a copy of this order be served on the said trustee, and also on the former petitioners Eli Marriott and Cornelius Shipley and Sarah his wife, and Samuel 414 MACKUBIN V. BROWN. Vansant and Mary Ann his wife, or their sohcitors on or before the twenty-third instant. After which the matter was brought before the court, and having been discussed by the solicitors of the parties, the case was infor- mally referred to the auditor for the purpose of stating accounts upon the principles assumed by the respective parties. But, as they could not agree as to some points deemed important, the case W'as again submitted to the Chancellor for his instructions upon the following questions : " Can the heirs at law of Brown, in this stage of the proceed- ings, impeach the correctness of the administration accounts ? Are those accounts to be presumed correct until the contrary is shewn by the heirs at law, or are the petitioning creditors bound in the first instance to prove the correctness of said accounts ? Can those accounts be opened for the purpose of charging interest on balances in the hands of the administrators at any time prior to the passing of the final account?" 6^/i July, 1827.- — Blaxd, Chayicellor. — The decree for a sale, having been founded upon the fact of the insufficiency of the deceased's personal estate to pay his debts, has necessarily estab- lished that point. Therefore the correctness of the administrator's accounts cannot now be impeached by the heir for the purpose of turning any creditor, who comes in after that decree, away from the pursuit of the real assets under it, to seek payment out of the personal assets. This general expression of his opinion, the Chancellor conceives, will be a sufficient answer to the three ques- tions submitted. But if the solicitors have other views, or wish for more special directions, the Chancellor would rather hear them first. Whereupon it is ordered, that this case be and the same is hereby referred to the auditor with directions to state an account accord- ingly, or such other accounts as may be required by either party. On the 5th of September 1827, the auditor returned and filed his report of sundry statements made according to the nature of the case and as required by the parties. To this report both parties excepted, and the case was thus again brought before the court. 4th October, 1827. — Bland, Chancellor. — The matter of the petitions filed in this case by Marriott and Shipley, and by Vansant with that of Stockett and wife in opposition thereto standing readv MACKUBIN V. BROWN. 41 5 for hearing, and the solicitors of the parties having been heard, the proceedings were read and considered. Any further sale of the real estate of the late Basil Brown to satisfy the claims of Marriott, Shipley, and Vansant, is opposed by Stockett and wife on several grounds. First, they rely upon the lapse of time as affording a presump- tion, that those claims were either satisfied or abandoned. But the fact, that these claimants were infants, and have but lately attained their full age, furnishes a satisfactory answer to this objection. Secondly, they allege, that the personal estate of the late Basil Brown, in the hands of his administrators was amply sufficient to satisfy these claims and ought to have been so applied ; and that these claimants cannot be allowed to proceed against his real estate until the personalty has been exhausted. This objection, if it had been sustained by the fact, would have been conclusive against the passing of the decree for the sale of his real estate. But, it is now entirely too late to make such an objection, after a decree expressly grounded upon an admitted or established allega- tion of the insufficiency of the personal estate to pay all the debts of the deceased. After such a decree no creditor, who may in all other respects be entitled to come in, can be turned away from proceeding against the real estate to seek payment out of the per- sonal estate of his deceased debtor. A third objection is, that these claimants should not be permitted to come in as creditors against the estate of the late Basil Brown ; because, although he sold, he did not receive payment for the whole of the estate of the late William Hammond ; and these claimants can only be considered as creditors of Basil Brown upon the ground, that he received those proceeds, a portion of which had been allotted to each of them. And it is also alleged, that a part of those proceeds were collected by Matthias Hammond, one of the administrators of Brown, after his death. It has been the practice of the court to allow a trustee to make the sale in a manner, and upon terms different from those specified in the decree, where the interests of the parties, appear to be in no way injured by doing so. And those concerned being alwa)'s noti- fied to shew cause, if any they have, why the sale should not be ratified, it has been found, that much good and no material injury has arisen by sanctioning deviations to this extent by trustees. The trustee is always directed by a decree, authorizing a sale upon credit, to bring into court the bonds or notes taken by him to secure 416 MACKUBIN f. BROWN. the payment of the purchase money. And this he should never fail to do, if it be not attended with much inconvenience, where the credit is long ; because he thereby relieves himself from any responsibility by holding them ; and enables the court, in those cases where any of the parties, may and choose to take the bonds in satisfaction of their claims, to have them, at once assigned and delivered over to them ; and thus immediately to put an end to the suit. But for the purpose of enabling the trustee to collect the money, when it becomes due, it has been usual, and found conve- nient to allow^ him to retain the bonds and notes in his own pos- session. They are, however, so held by him at his own risk. But the court has never been informed by the trustee Basil Brown, what became of the purchase money arising from the sales made by him. He has brought none of it into court; nor has he brought in any one of the bonds taken by him for securing its payment, except that of DuvaWs, the amount of which, it appears, he himself afterwards received ; and yet the whole amount of all the purchase money became due long before Brownh death. It must be presumed, therefore, in this, as in all similar cases, where a trustee or agent undertakes and binds himself to collect money, or to bring into court those vouchers, by means whereof it may appear whether he has collected it or not, and fails to do so, that the money has actually been collected by him, and he must be charged with it ; unless he can satisfactorily shew, that it had not come to his hands, or been applied to his use. The greatest inconvenience and the most serious evils would arise, if trustees, appointed by this court, w^ere not held strictly accountable for the bonds taken, and money received by them. They undertake to perform duties of much importance, and to become the executive agents of the court ; and therefore must be rigidly held to a faithful discharge of the trust reposed in them, in all that relates to the receipt of money, or the securities taken by them for its payment, (c) As the late Basil Brown might and ought to have collected the whole amount of the purchase money, it must be presumed that he did so ; and consequently he must be held liable for the whole amount ; unless his representatives shew, that without his default, it was not received by him, or that it did not come to the use of him or his estate. This they have failed to do. His estate, there- (c) Bennett v. Hamill, 2 Scho. & Lcfr. 566. MACKUBIN V. BROWN. 4j7 fore, must be charged with the whole amount of the proceeds of the sales made and reported by him. But although a negligent or unfiiithful trustee may be thus held liable for the whole amount of any money which he undertook and became bound to collect, and of which he has failed to give any account whatever ; yet the court, by holding him liable, would not be understood as thereby, in any case, exonerating any purchaser, surety, or other person, or subject, from any liability or lien that might have been enforced for the recovery of the same money. The party interested may, in the first instance, obtain satisfaction from such security ; or the delinquent trustee may be first made to pay, and be then left to take the place of the claimant, and, so far as in equity he may be permitted to do so, to seek relief from others as he can. Upon these principles, therefore, it is Ordered, that the excep- tions oi Eli Marriott and others, are sustained, and that of Stockett and wife is rejected. And the auditor's report, and statements No. 1, 2, 3, and 4, are approved; and the statements No. 5, 6, and 7, are rejected. And it is further Ordered, that the trustee, JVicholas Brciver, jun'r, forthwith proceed to make sale of the real estate of the late Basil Brown, as directed by the orders of the 6th of July, 1826, and of the 8th of March, 1827. On the 20th of March, 1828, Rezin Hammond, the displaced trustee, filed his petition, in which he states, that being the executor of Matthias Hammond, who was administrator of Basil Brown, and trustee for the sale of the real estate of Basil Brown, he had paid to Eli Marriott the sum of $138, in part satisfaction of his claim against the estate of the late Basil Brown, to the amount of which he claims to be considered as the equitable assignee of Eli Mar- riott ; and prays that the present trustee may be ordered to pay the amount to him out of the share awarded to Marriott. This petition was submitted without argument. 24^/i March, 1828. — Bland, Chancellor. — At no period, and in no part of all these proceedings does it appear, nor has it before been even intimated, that this petitioner had any such claim as that now set up by him ; or any claim whatever against Eli Marriott. It does not very distinctly appear, whether the petitioner claims in his own right, or in his representative character of executor. But in either way, if the claim has any real existence whatever, it is a mere legal one ; it has not a shadow of equity about it. It is for 53 418 WILLIAMSON V. WILSON. money lent and advanced to Marriott, for which the petitioner may sue at law. But this delinquent agent of the court, after having been removed, now asks to have the sum he alleges he has paid Marriott, allowed as a payment made while he was trustee, witliout any authority, or even pretext of authority, from this court. Most certainly it cannot be allowed to him as a payment made as trustee. The petitioner takes another ground, which is, that he may be considered as an equitable assignee. But if he who had paid money, as set forth in the petition, could be let in as an equitable assignee, then all the other creditors of Marriott must be allowed to come in upon the same terms. But that could never be per- mitted. Whereupon it is Ordered, that the petition be dismissed with costs. A sale having been made by the trustee, and ratified by the court, the auditor reported a distribution of the proceeds among the claimants, which was ratified on the 22d September, 1828, and the trustee directed to apply the proceeds accordingly, and the case thus finally closed. WILLIAMSON V. WILSON. The power to appoint a receiver is one of as great utility as any which belongs to the court, and is well established upon reason and authoritj'. Where there has been a breach of duty by a partner, or the firm has become insolvent, and a partner is wasting, or threatens to make an improper application of the funds, a receiver may be appointed before the coming in of the answer. A receiver is considered as an executive officer of the court, bound so to keep the property placed in his hands, that it may be easily traced, and immediately produced when called for ; and on his failing to do so, he, or, on his death, his personal representatives may be proceeded against in a summary way. A partnership for a limited period may be dissolved before the expiration of the specified time by death or insolvency. After a firm has become insolvent, the partners are to be considered as trustees for the benefit of their creditors ; and therefore a suit between such partners may be treated as a creditor's suit, and the partnership estate collected and distributed accordingly. Where evidence in support of a claim, in a creditor's suit, is within the knowledge of a co-creditor who has filed his claim, and thus become a parly to the suit, he may be required to answer interrogatories on oath. Where testimony is proposed to be taken in support of a claim, notice of the taking of it must be so given as that it may be presumed to liave been fully and correctly repoited to the court. WILLIAMSON V. WILSON. 41 9 The mode of having creditors called in, and their claims adjusted before the auditor in a creditor's suit. The originally suing creditor's claim having been decided upon, or so much of it as has been decided upon by the decree, cannot be afterwards drawn in question. The statute of limitations, or any other just opposition, may be relied on or made against a claim brought in under the decree by any one of the original paities, or by a co-creditor. After a reasonable time a final account may be ordered, rejecting all claims not then sufficiently authenticated. By this bill, filed on the 3d of April, 1826, it is stated, that the plaintiff Charles A. Williamson, and the defendants John B. Wilson and John JV. Woodard, had formed a partnership, as commission merchants and auctioneers in the city of Baltimore, on the 7th of April, 1824, for the term of three years from that date, by the name of Wilson, Williamson ^ Co.; that they gave bond, with David Williamson their surety, to the city as auctioneers ; that the business of the partnership was carried on accordingly until the 4th of January, 1826, when the firm becEime insolvent and stopped payment ; that the defendants have since held, and retained in their possession, exclusively, all the goods, effects, books, papers, and vouchers of the firm ; and are collecting the debts due, and wasting and misapplying the property of the partnership, to the ruin of the plaintiff, and to the prejudice of the creditors of the firm. Upon which the plaintiff prayed for an injunction to restrain the defendants from collecting the debts ; and that a receiver might be appointed to collect them and to take charge of, and preserve the goods, debts and effects of the firm for the benefit of all concerned. The bill was sworn to by the plaintiff in the usual form. On the same day the bill was filed, it was submitted to the Chancellor, upon which it was ordered, that David Williamson, jun'r, be appointed receiver; and, that an injunction be granted as prayed. But leave was granted to the defendants to move for rescinding the order, and the dissolution of the injunction either before or after filing their answers on giving five days notice of such motion : and the register was directed to annex a copy of the order to the writ of injunction. On the 12th of the same month the defendants, having filed their answers, gave notice to the plaintiff, that they should, on the 14th instant, move, as allowed by the order of the 3d instant. All the material admissions and allegations of the answer are sufiSciently set forth by the Chancellor in his view of the case. 42G WILLIAMSON V. WILSON. On llie same day, and together with the answer of the defend- ants, /. 8f J. Pogue and others, as creditors of the firm, filed their petition objecting to D. Williamson junior being considered as a receiver ; and recommending Jacob Schley to be appointed in his stead for the benefit of the creditors of the partnership. And, on the next day, the plaintiff filed exceptions to the an- swer of the defendants ; and David Williamson^ as another cre- ditor of the firm, insisted by his petition on the receiver being continued. 24:th ./ipril^ 1826. — Bland, Chancellor. — This case standing ready for hearing on the motion to rescind the order appointing a receiver, the counsel on both sides were heard, and the proceedings read and considered. There have been, of late, many applications to this court for the appointment of a receiver. The power of making such an appointment, by some, has been contemplated as, at least, a new exhibition of the jurisdiction of this court. It seems to have been considered in the argument as one of an unsettled and questionable nature. That it is a power which has not, until of late, been very frequently resorted to may be admitted; but, there can be no doubt of its being an authority properly belonging to this court. In an order, passed about twenty years ago, the then Chancellor speaks of the power, as one which rightfully belonged to the court, and respecting which there was then no question whatever. (a) It is a power of the Court of Chancery of Eng- land, which appears to have been very frequently called into action during more than a century past. All the leading principles in relation to it were v/ell established there, long before our revolu- tion ; and it was then, and has ever since been considered, there and here, as a povv-er of as great utility as any which belongs to a court of chancery. And, that it is so, will appear very evident, from a review of the nature, and the variety of the exigencies in which it has been called into action ; either to prevent fraud, to save the subject of litigation from material injury, or to rescue it from inevitable destruction. Much the greater number of the English reported cases, con- cerning receivers, relate to real estates, and most frequently are such as have arisen between mortgagors and mortgagees. In almost all of them the office and duty of the receiver have been (a) The Wharf Case, 1806, post, vol. WILLIAMSON i;. WILSON. 421 extended no further than to exclude trespassers, to make such repairs as are indispensably necessary, and to collect and account for the rents and profits. But, where the preservation of personal property has been the object, the receiver has been, in many respects, invested with the authority of a curator bonis of the Roman law. He has been directed to take into his possession all the moveables ; and if any were of a perishable nature, to sell them. He has been directed to collect and sometimes to pay debts. Where there has been a breach of duty by a partner, a receiver has been appointed and charged with the winding up of an unsettled commercial con- cern.(6) And in all cases he has been held bound to render a strict account of liis stewardship. A receiver is an officer of the court. He is considered as truly and properly the hand of the court ; but his appointment determines no right ; nor does it affect the title to the property in any way ; it will not even prevent the running of the statute of limitations. The holding of the receiver, is the holding of the court for him from whom the possession was taken ; therefore, should any loss happen it must be borne by him from whom the property was taken, not by the party at whose instance the receiver was appointed. (c) But it has been argued, that a measure so prompt and vigorous, as that which has been adopted upon the present occasion, may be applied to the most pernicious purposes ; that it is open to the greatest abuse ; and that the consequences of such a procedure among commercial people, may become most mischievous and irreparably ruinous in its operation. I have meditated upon what has been urged in this respect. That this court should have the power in unusual and pressing emergencies, at the instance of a party interested, effectually and without delay to put its hand upon property, so far as to prevent waste, inextricable confusion, or total destruction, seems lo be admitted by all to be clearly right, or at least highly beneficial. The apprehension of abuse from such a power, when exercised by means of a receiver, seems to have arisen from a contemplation of the circumstances of this case. These parties were merchants, who had been extensively engaged in trade in the great emporium of our State. And, any merchant, it has been said, by means of this power of the court of chancery, may have his counting-house (6) Peacock v. Peacock, 16 Yes. 49 ; Harding v. Glover, 18 Ves. 281.— (c) Pow. Mort. 294, note ; 2 Mad. Chan. 233. 422 WILLIAMSON V. WILSON. closed, his trade broken up, and liis commercial reputation utterly blasted at a single blow, by a malignant application for the appoint- ment of a receiver, founded on a statement of facts altogether fabricated and false. There is one general answer, that may be given to this asser- tion ; which is, that the plainest, most temperate, and best guarded forms of judicial proceedings, known to the common law, have been abused and made the instruments of malice. Of which the multitude and variety of the reported examples, in actions for malicious prosecutions and arrests, afford too strong proof: and, even in this very case, the defendants, by their answer, desire it to be recollected, that the well guarded common law process of reple- vin has been wantonly and grossly perverted and abused to their great wrong and injury. But upon the present occasion, since these applications have, of late, become more fi'equent, it may be well to consider this matter more particularly. A receiver is never appointed before answer, but upon very strong special ground supported by affidavit ;(^) or, as is the practice in this State, on a bill sworn to by the complainant ; or, in case of his not being in this State, by some one conusant of the facts stated. A motion to rescind an appointment is always heard on a short notice ; and a receiver is in no case permitted to take charge of the property without having first given bond with approved surety. So far then this chancery power is at least as little susceptible of abuse as the process of replevin, as is shewn by the example furnished by the defendants' answer. But, this is not all ; there are other safeguards against the abuse of this power. The court always reluctantly interferes against the legal title, only in a case of fraud clearly proved, and of imminent danger ; and a receiver will not be appointed when the matter in dispute depends on the legal title ; unless strong grounds are shewn, and the rents and profits are in imminent danger. (e) Where a plaintiff is permitted to come into a court of chancery in behalf of himself and other creditors, or may sue here because of the equitable nature of his claim, and in respect of a fund in the hands of the defendant, out of which he has a right to ask pay- ment, he may, under certain circumstances, have a receiver put upon the property or assets liable to his claim. But under no other (rf) Duckworth v. Trafford, 18 Ves. 2S3.— (e) Lloyd v. Passins^ham, 16 Ves. 59 ; Norway v. Rowe, 19 Ves. 148, note ; Maguire v. Allen, 1 Ball St Bea. 75. WILLIAMSON V. WILSON. 423 circumstances does it appear, that the estate of a debtor may be put into the hands of a receiver at the instance of a creditor. In most cases the application is founded upon the fact, that waste, or peril has assailed or does then immediately threaten the property in question. But there are cases in which it may become neces- sary to interpose for the purpose of keeping the profits of an estate in litigation apart from those arising from another which is not the subject of controversy; on the ground, that they are likely to become so inextricably mingled as to render it extremely difficult or impossible to make a correct estimate of those of the litigated estate after the right to it shall have been regularly determined. In such cases the court will appoint a receiver of the rents and profits of the litigated property. As where certain wharves were claimed by the plaintiff in opposition to the city of Baltimore, a receiver was directed to collect the wharfage of those wharves, the right to which had been made the subject of litigation, and keep it sepa- rate from that collected for the use of other wharves under the authority of the city.(y) This, however, is not the case of a third person attempting to stop the course of a firm, or of any one then actually engaged in trade ; but is the case of a partnership where one of the partners has averred, that their trading has ceased, and that the firm is utterly insolvent, and thereupon asks for the appointment of a receiver as the only means of saving him and their creditors from the fraudulent practices of his co-partners. Now, in cases of part- nership it must strike every one, that to whatever extent of malig- nancy, or fraud a partner might be urged or tempted to go in a condition of actual insolvency ; yet, under other circumstances, his own interest would v>'ithhold him from attempting to have this power of the Court of Chancery applied to an unjust and perni- cious purpose ; for, it is rare that a man coolly indulges his malice to the l-uin of his own interests. And, therefore, it cannot oflen happen, that a partner will deliberately abandon a gainful and prosperous traffic in which he is in the undisturbed participation, and maliciously endeavour to break it up, by fabricating such a statement as will induce the Chancellor to order the joint funds into the hands of a receiver, (o-) But, suppose a partner, in a prosperous and lucrative concern, to be actuated by such malignant feelings ; how far could he carry (/) The Wharf Case, post, vol. ii. — '§) Gow. Pai-tner. 244. 424 WILLIAMSON V. WILSON. the abuse of this power ; and to what extent, by its means, could he injure his antagonist? The appointment of a receiver does not, of itself, divest any one of possession ; it merely authorizes the receiver to demand, and to accept the possession when volun- tarily delivered, or to take it when held by no one else. For, if the holder of the property refuses to deliver it, the receiver or party interested must apply to the court for an order to deliver posses- sion, or to shew cause to the contrary. In all cases, where the order making the appointment has been made ex parte, and before answer, the defendant is allowed to come in at an early day and move to have the order rescinded. And, as regards third persons, who may have an interest in property thus ordered to be taken possession of by a receiver, they too are allowed, in a summary way on notice of motion, to come in and be examined pro inieresse suo.{h) Upon the whole, from whatever point of view this chancery power may be contemplated ; or in relation to whatever of the various emergencies, to which it has been applied, it may be con- sidered, it will be found in aU respects as safe, and as little liable to abuse as any judicial procedure known to the common law. It will be found in practice, that little or no useless pressure can be produced in any case ; and that, in no instance, can the mischief continue long before the party aggrieved may have an opportunity of being fully heard, and of obtaining complete relief. This bill has been filed by one partner against his copartners, charging them with a design to consume and waste the joint pro- perty, or to apply it to their own use : and it avers, that the firm is absolutely insolvent. The answer denies these charges of the bill, but admits the insolvency of the firm ; and then charges the plain- tiff with a design so to apply the joint funds as to give an undue and improper preference to one or more of their creditors. These parties have, in many respects, given an opposite and very differ- ent account of the state of affairs between them. They both, however, admit the present insolvency of the firm ; and agree, that according to the stipulations of their contract of copartnership, the term of its duration has not yet expired. It seems to be admitted, where a specified period of time is limited for the continuance of a partnership, that neither party can, at his option alone, dissolve the connexion. But, although such (A) 2 Mad. Chan. 245. ^ WILLIAMSON V. WILSON. 425 a partnership cannot be terminated at the pleasure of either party ; yet, where, as in this instance, there is no express stipulation to the contrary, the partnership is virtually dissolved by the death of either of the parties. And it is said, that in England the bank- ruptcy of one partner operates, like death, as a virtual dissolution of the firm. In point of principle, and so far as relates to the matter now under consideration, there can be no difference between a bankruptcy, according to the English law, and an actual insol- vency in fact, according to our law. So long as a man carries on his business and has a prospect of gain, he is not considered as insolvent ; but if, in addition to such deficiency of property, his business so far declines as to leave him no prospect of paying his debts, he is then, according to the universal sense of mankind, insolvent. Whether he is declared to be in this condition accord- ing to the technical process of the English bankrupt law, or is admitted to be so in fact, the effect upon the contract of copart- nership must be the same. The insolvency is the total destruction of the pecuniary capacity of the partner to fulfil his contract of copartnership. But his pecuniary capacity was the basis on which it rested. The contract itself, therefore, must be considered as effectually annulled, as if the party were dead. If both of them be insolvent, or dead, there is no efficient or living capacity left to execute the contract ; if one only be dead or insolvent, the terms of it cannot be complied with ; and where personal confidence was the principal inducement for making the agreement, as in contracts of this nature, it would be unreasonable; and, therefore, the other party shall not have the executor, administrator, trustee or assignee of the deceased, or of the insolvent, intruded ui)on him. Conse- quently, the partnership between these parties must be considered as having been virtually and effectually terminated by their insol- vency. It can be extended over no new transactions, nor be allowed to expand itself any more. It must be v.'ound up and brought to a close ; and, except for such purposes,-^^ust be deemed to have totally ceased to exist. («') While a man continues solvent, tlic order in which he pays his creditors is a matter of indifference, since none can suffer ; and therefore, no one creditor has a right to complain of the preference given to another. But so soon as he becomes insolvent, that pri- (i) Ex parte Williams, 11 Ves. 5; Holding v. Glover, 13 Ves. 231 ; Vulliamy ». Noble, o Meriv. 614; Crawsbay i". Maule, 1 Swan. 506. 54 426 WILLIAMSON V. WILSON. vilege ceases ; and equity requires, that he should make an equal distribution of his effects among them all. The giving of an undue and improper preference, under such circumstances, is denounced by the express provisions of our insolvent laws, as a fraud. And in all cases, where a court of chancery can be called on, and does interpose for the purpose of administering the assets of an insolvent debtor, it is governed by the rule of equality ; because equality is equity. The assets, if insufficient to pay all, are always distributed proportionably. But, although this is the duty of an insolvent debtor ; and is what a court of chancery will do for him in all cases, where his effects can be subjected to its control ; yet if a creditor can fairly and legally obtain full payment from his insolvent debtor, equity will not deprive him of his legal advantage and compel him to refund. These parties admit themselves to be insolvent debtors. The plaintiff charges his copartners, the defendants, with a design to w^aste the joint property, and to apply it to their own use. The defendants deny these allegations, and charge the plaintiff with a design to misapply the funds, and "to give to some of the creditors an undue preference. Taking the charges of the plaintiff and of the defendants, or of either party to be true ; or allow, that each or either party was about to waste the property, or has his favourite creditors to whom it is his design to gi^■e an undue preference ; and it is clear, that one or the other or both of them have formed a fixed resolution to violate one of the great principles of equity, which it is the peculiar province of this court to prevent. None of the creditors of these insolvent debtors, so far as it appears, have, as yet, obtained any legal advantage. It is proper therefore, that this court should now lay its hands upon the joint propei-ty of this partnership, and let all its creditors come in pari j>assu, and according as their respective priorities, if any, should appear. Both parties profess to have had this equitable distribution in contem- plation ; both acknowledge themselves to be in that insolvent con- dition, in which the making of such an equitable distribution has devolved upon them as a duty. And yet each charges the other with having made an effort, and formed a fixed design to disregard this duty. Neither of them seems to have the least confidence in the other. Under all these circumstances, I consider this as a case, in which it is peculiarly fit and proper, that a receiver should have been appointed before answer, and should now be continued, WILLIAMSON V. WILSON. 427 as a means of winding up the affairs of this partnership in safety, and with justice and equality to all concerned. (j) It follows as a necessary' consequence of appointing a receiver before answer, that the selection of the person to be appointed must be made by the Chancellor on the ex parte recommendation of the party applying for the appointment. In England, the selec- tion of a suitable person is, most commonly, referred to a master, by whom both parties may be heard ; but here, that duty must be performed by the Chancellor himself. And, in this case, the selection of a suitable person, as well as every other jnatter in relation to the application for the appointment of a receiver, is now as entirely open for consideration as if nothing had been previously done. The appointment that has been made may be rescinded ; the continuance of a receiver may be altogether refused ; or the appointment may be now made more suitable to the circumstances of the case. The recommendations of those most interested, and who are most likely to sustain injury without an appointment of a receiver, have generally been most regarded. The being a near relation of either party is not in itself an absolute disqualification, but it must be allowed to have its weight when connected with other circum- stances. In this case I am of opinion, that the present receiver, David Wil- liamson jun'r, ought to be removed. Jealousies have been excited against him. He is the brother of one of the parties, and the son of one who claims to be a large creditor of the firm. He is admitted by the plaintiff to have taken an active part in this con- troversy as his agent and friend. And he is charged by the defend- ants with having been active by undue means to their great preju- dice. His feelings and affections appear to have become too much enlisted to permit him to be as unbiassed and impartial as a receiver ought to be in winding up the partnership affairs of these insolvent debtors. Jacoh Schley has been recommended by some of the creditors, or those who allege, that they are creditors of the firm ; and the counsel of these litigating parties admit him to be in all resp.ects capable and fit ; I shall therefore appoint him. This receiver will, as usual, be at present invested with no other authority than to receive and take care of the effects of these insolvents ; but any {j) Peacock v. Peacock, 16 Ves. 49. 428 WILLIAMSON i'. WILSON. further authority and directions that may be necessary, will be given when applied for, and as circumstances may suggest and require. The compensation of the receiver removed, and of the one now appointed, will be determined on a representation of their trouble, skill, and merits, as to which the parties will be heard. From what has been said the reasons for continuing the injunc- tion must be sufficiently evident. It is, in this case, a suitable auxiliary to the appointment of a receiver ; and therefore will be allowed to operate until the hearing or further order, (/c) With regard to the exceptions-, that have been taken to the defendants' answer, it may be sufficient to remark, that from the manner in which they were treated in the argument, it did not appear, that the plaintiff wished them to be now decided upon ; and, as it was not necessary to do so, they have been passed over for the present. Whereupon it is ordered, that Jacob Schley, of the city of Bal- timore, be and he is hereby appointed a receiver, with power and authority to receive and take charge and possession of the goods, wares and merchandise, books, papers, and effects of and belong- ing jointly to the said Charles A. Willianison, John B. Wilson, and Johi J\^. IVooclai'd, lately trading under the name and firm of Wil- son, Williamson & Co. And also with power and authority to sue for and to collect the debts due unto the said firm. And the said Charles A. Williamson, John B. JVilson, and Johji JY. Woodard, and each of them, are hereby required, to yield up and deliver unto the said Jacob Schley the goods, wares, and merchandise, books, papers, and effects of or belonging to the said firm. And it is further ordered, that before the said Jacob Schley proceeds to act as a receiver by virtue of this order, he shall give bond to the State of Maryland in the penalty of thirty thousand dollars, with surety to be approved by the Chancellor, for the faithful performance of the trust reposed in him by this order, or which may be reposed in him by any future order in the premises. And it is farther ordered, that the said David Williamson jun'r, be and he is hereby removed from the office of receiver, to which he was appointed by the order of this court of the third instant ; that he make report and render unto this court a full and fair account of all the property or money-, which may have come to his hands, and of all his proceedings (fc) Eden. Inj. 220. WILLIAMSON V. WILSON. 429 while he acted as such. And he is hereby directed and required to yield up and deliver over unto the said Schley, so soon as he shall have been qualified to act as receiver as before mentioned, all the goods, wares and merchandise, books, papers, and effects of the said firm which may have been received by him the said Wil- liamson, or which he may now hold or have under his control. And it is further ordered, that the injunction heretofore granted in this case be and the same is hereby continued in full force until the hearing or further order. Afler which Jacob Schley, having filed his bond with approved surety as required, proceeded to act as authorized ; and on the 8th May 1826 made a report, on oath, in which he stated, that he had obtained possession of the books and papers of the firm, and a large amount of their goods and effects, which, as he represented, it would be most for the benefit of all concerned to have sold at auction on a credit. Qth May, 1826.— Bland, Chancellor. — Upon consideration of the report of the receiver, it is ordered, that Jacob Schley, the said receiver, be and he is hereby authorized and required to sell the goods, wares and merchandise in the said report mentioned on a credit of four months for approved endorsed notes, according to the usual course and manner of selling goods at auction in the city of Baltimore. And he is hereby further authorized and directed to sell any other goods, w^ares and merchandise, being the joint pro- perty of the said parties, which may come to his hands, in such manner as he may deem most beneficial and best for the interest of all concerned. It was also ordered on the same day, that the exceptions to the defendants' answer should stand for hearing on the first day of June then next. And on the 17th of July following, on the admission of the defendants' solicitor, it was ordered that the exceptions be sustained, and that the defendants make a more full and perfect answer on or before the first day of the next term. On the same 17th July, the plaintiff by his petition stated, that a large sum had been collected by the receiver, which he prayed might be distributed among the creditors of the firm ; sundry creditors of the firm also filed their petitions in this oase, alleging that the receiver had in his hands a large amount, which they prayed might be applied in satisfaction of their claims. And at the 430 WILLIAMSON V. WILSON. same time the receiver reported, that he had a considerable sum in his hands, as to the disposition of which he prayed the- order and direction of the court, 21st July, 1826. — Bland, Chancellor. — Upon these petitions of those who present themselves in this suit as creditors of the firm of Wilson, Willinmson & Co., it becomes necessary to consider this case in a new point of view ; and to determine its general charac- ter, as well in relation to the original litigants, as to those who now propose to be admitted as parties, and have a control over its future course. The bill states, that a partnership had been formed and conducted for some time between the plaintiff and the defendants, and that the firm had, just previous to the institution of this suit, become insol- vent ; these facts have been admitted by the answer. These ori- ginal parties are then, at least to the extent of their joint concern as merchants, to be considered as insolvent debtors ; as such they must, in equity, be regarded as mere trustees for the benefit of their creditors ; 'and therefore neither of them can be allowed to derive any pecuniary advantage to himself from this suit. The proper and sole object of this bill is to have the funds of Wilson, Williamson & Co. collected and distributed, so far as they will go, among the creditors of the firm in satisfaction of their claims, according to the princi^iles of equity. This matter has been brought here by insolvent debtors for the purpose of obtaining a partial dis- charge from' the claims to which they are liable, and in that way to procure some relief to themselves. But the whole pecuniary benefit of the suit, must, according to their own admissions, be awarded to their creditors. The mere form and phraseology of the bill can- not materially affect the nature of the case which it brings before the court ; and hence, although this is not a suit instituted by a creditor either for himself alone, or for himself and others, against his insolvent debtor ; or against the representatives of his deceased debtor to have his re^l and personal assets admin- istered for the benefit of his creditors ; yet it is a suit which, by the express admission of the insolvent parties, has placed under the control of the court a considerable fund for the benefit of those who are the creditors of the plaintiff and the defendants jointly. It must therefore be considered in all respects as a creditors' suit ; and these petitioning creditors must be allowed to come in as par- ties ; and all the- other creditors of this firm must be called on by a public notice, in the usual form, to bring in the vouchers of their WILLIAMSON V. WILSON. 431 claims by a limited time, before any distribution can be made of the funds now in the hands of tlic court. With regard to the authentication of claims, and the conflicting rights of claimants, the court will be governed by its established rules in similar cases, as any such questions may arise. (/) (Z) Barnaby v. Hollingsworth. — The bill filed 2d July, 17S7, states that John Barnaby, (who was not a defendant,) being indebted to the plaintiff' Richard Barnaby, and sundry other persons, conveyed all his property to the defendants H. Hollings- worth, A. Todd, J. Field, and J. Warder, in trust for the benefit of his creditors; that the defendants took upon themselves the trust ; obtained possession of the pro- perty conveyed, and have refused to distribute the money received, or to sell a part of the real estate, or to account. Prayer to account, for payment, and general relief, &c. The defendants answered, &.c. It appears that, by an agreement of October, 1739, signed by the solicitors of tlie parties, the case had been referred to arbitrators ; who, without the sanction of an order by the Chancellor, awarded, that the plaintiff was not the partner of John Bai-naby, and that he was indebted to the plaintiff in the sum of £3200 14s. Z\d. 2Slh November, 1789. — Hanson, Chancellor. — This case standing ready for decree, and the bill, answers, exhibits, and award aforesaid being read, and appearing as herein before set forth ; it is thereupon Decreed, that the defendants Heniy Hollings- worth, Alexander Todd, John Field, and Jeremiah AVarder, ti-ustees in the deed aforesaid mentioned in the complainant's said bill, bearing date the eighteenth day of January,^n the year of our Lord one thousand seven hundred and eighty-seven, do account with the complainant, and render upon oath in tliis court, a full and particular statement of all the real and personal estate, debts due and owing to the said John Barnaby, and other property assigned and conveyed to the said defendants by the said deed of trust, and what part thereof hath been received by them or cither of them, or hath come to their or either of their possession, and how the same and every part thereof, hath been applied and disposed of, subject to such future order and decree as this court shall make in the premises. After which the defendants made out and filed an account, he. ; upon which the following decree was passed : — May, 1792. — Hanson, Chancellor. — An interlocutoiy decree having been passed in this cause, for the defendants to account with the complainant, and to render on oatli a full and pai-ticular statement of all the real and personal estate, debts, and other property of John Barnaby to them by the said Barnaby assigned, for the benefit of his creditors; and the said Henry Hollingsworth having in consequence thereof returned an account and statement on oath, by which it appears, that he hath in his hands, of the property so assigned by the said John Barnaby, the sum of six hundred and eighty-eight pounds, ten shillings and seven pence, current money, and also other property, not disposed of, and converted into money ; and tlie complainant by a petition, this day filed, having prayed an order of this court to compel the said Hollingsworth to bring into court to be divided amongst the creditors of the said John Barnaby, the money in the hands of him the said Hollingsworth as aforesaid, and also the money by him received as trustee since rendering the said account : It is thereupon Ordered, that the said Henry Hollingsworth do immediately bring into this court the said sum of six hundred and eighty-eight pounds ten shillings and seven pence, cui'rent money ; and that he also render an account of, and bring into this court, all the money by liim received as trustee aforesaid, to be distiibuted 432 WILLIAMSON V. WILSON. Whereupon it is ordered, that the plaintiff give notice to the creditors of the firm of Wilson., Williamson & Co., to file their claims in the chancery office, properly authenticated, on or before the fifteenth day of NoA^ember next, by causing a copy of this order to be published in the American once a week for three suc- cessive weeks on or before the 21st day of August next. After the publication of this order as directed, the plaintiff by petition stated, that many of the creditors of the firm had not brought in their claims; upon which it was ordered, on the 17th of November 1826, that the time for the production of claims be extended to the first day of December, and that public notice thereof be given by a publication of the order in the American newspaper. Proof of the publishing of these orders was made in the usual manner by filing a certificate of the editor of the news- paper in which they had been inserted. And many of the credi- tors of the firm having filed the vouchers of their claims, the plaintiff on the 9th of December filed exceptions to many of them for want of the requisite proofs and testimonials of authenticity; and against some because of their not being in their nature admis- sible as claims against this firm. 11th December y 1826.— Bland, Chancellor. — Notice having been given as ordered, to the creditors to exhibit their claims, and the case being now in a situation to have an account stated, on motion of the parties, it is ordered, that this case be and it is hereby referred to the auditor, with directions to state, from the proceed- ings and proofs, an account or accounts shewing the amount due from the firm of Wilson, Williamson & Co., to each of their cre- ditors who have exhibited their claims to this court : and also the amongst the creditors of the said John Barnahy, according to their claims and tlie intent of the deed of trust of the said John Barnahy to the said trustees. It is further Ordered, that the creditors of the said John Bnrnaby have notice to exhibit their claims in this court, on or before the first day of September next, for the purpose of obtaining their respective dividends or just proportions of money arising from the property by him assigned for the benefit of his creditors ; and that the said notice be given by having a copy of the order inserted in the newspaper of Goddard &, Angel, at any time before the sixteenth of June next, and continued therein four weeks successively. After this, notice having been given, sundry creditors exhibited their claims, and the auditor was directed to state an account apportioning the said sum among them, which was done, and confirmed, and the amount allotted to each directed to be paid accordingly. WILLIAMSON V. WILSON. 433 proportion which each one of them may be entitled to receive out of the funds in the hands of the receiver after all just allow- ances have been made. And also to state such other accounts as the nature of the case, or the parties may require. The first receiver, David Williamson jun'r, who was appointed on the third, and removed on the twenty-fourth day of April last, is hereby allowed one per cent, on the amount now about to be distributed among the creditors of the said firm. The present receiver Jacob Schley is hereby allowed eight per cent, on the same amount, as a compensation for his trouble in receiving the same ; and in paying over to each creditor his portion thereof, according to the statement of the auditor, after it shall have been confirmed by the Chancellor. Each of these receivers are also to be allowed such expenses as they may either of them have incurred, as such, in the defence and preservation of the property committed to their keeping, and in the execution of the trust reposed in them ; of which expenditures they shall produce before the auditor vouchers authenticated in the usual manner. On the 13th Februar}-, 1827, the auditor made a report, with a statement of the distribution of the funds among the creditors who had then filed their claims. Assuming as directed the principles and rules of the court applicable to claims brought in under a cre- ditors' bill, the auditor stated, that there were then filed thirty-two claims ; that many of them were not proved as required ; that others were founded on endorsed notes or joint liabilities, and those w^ho were so jointly liable with the firm were not shewn to be mere sureties or insolvent ; and that others were objectionable in their nature because of its not clearly appearing that they were properly debts due from the firm. This report, at the instance of the receiver, was revised by the auditor to rectify some mistakes as to the amount stated to be in his hands ; and to let in some allow- ances to him for his expenses ; and another statement was reported by the auditor on the 22d February 1827. The plaintiff by his petition alleged, that the evidence to sup- port his exceptions to the claims of Charles Cappeau, Garrett Brown, diaries and J. Walker, and Lot Ridgely, was within the knowledge of those parties respectively. Wherefore he prayed, that they might be ordered to answer those exceptions on oath. 30th March, 1827. — Bland, Chancellor. — Ordered, that C/mr/es Cappeau, Garrett Brown, Charles and J. Walker, and Lot Ridgely 55' 434 WILLIAMSON V. WILSON. make answer on oath or affirmation to the exceptions as prayed by this petition, on or before the sixteenth day of May next, or shew good cause to the contrary : Provided a copy of this order and the petition and the exceptions therein referred to be served on each of them on or before the tenth day of April next. On the 21st May following they filed their answer accordingly. Lot Ridgely and others creditors of the firm on the 6th of April 1827, filed exceptions to the allowance of several claims as stated by the auditor ; and at the same time by their petition prayed to have leave to take testimony in relation to their exceptions. 1th April, 1827. — Bland, Chancellor. — Upon this application it must be recollected, that in a creditors' suit, as this is, each cre- ditor has a right to assume the position of a plaintiff, as against his debtor, whatever may be the nominal station of such debtor in the suit then depending before the court; that each creditor, hav- ing an interest in excluding the claims of all other creditors, so far as the admission of their claims to a participation of the funds would lessen the amount of satisfaction he would otherwise obtain, has a right to plead the statute of limitations, or make any objec- tion to the allowance of any claims which the debtor himself could make under similar circumstances ; and that each one of the debtors, or their representatives, may make any defence against a claim w^hich he would be permitted to make if he alone were charged as the only debtor. Hence it follows, that in taking testi- mony in relation to such a contested claim, in order that it may be impartially taken, the party requiring it must give notice to the party directly to be affected by it, or to some one w^ho has an inter- est in cross examining the witnesses, and having their testimony fully and correctly reported to the court. To give notice to all the creditors would be impracticable ; and to indulge the parties in such cases in taking testimony without limit as to time would be contrary to reason and the usual course of the court in similar cases. Whereupon it is ordered, that any creditor of the firm of Wil- son, Williamso7i & Co., whose claim is stated or noticed by the auditor in his report, and also the said copartners, be and they are hereby severally authorized to take the deposition of any witnesses in relation to such claims, before the commissioners appointed to take testimony in Baltimore ; provided, that three days' notice be given as usual, by the creditor, in whose behalf the testimony is WILLIAMSON V. AVILSON. 435 proposed to be taken, to some two or more other creditors, or one or more of the firm or their solicitor ; or by one or more of the firm, in whose behalf the testimony is proposed to be taken, to some two or more of the creditors or their solicitor. But the cre- ditor against whose claim the testimony, when taken, is intended particularly to operate, must himself or his solicitor be so notified. And depositions so taken, subject to all legal exceptions, may be read in evidence ; provided they are filed in the chancery office on or before the first day of May next. The plaintiff by a petition filed on the Gth of April 1827, stated, that Jacob Schley the receiver was then dead ; and that adminis- tration had been granted on his estate : upon which he prayed, that another receiver might be appointed, according to the recom- mendations therewith filed ; to whom the administrators might be ordered to pay and deliver over the money, property, books, and vouchers of the firm which had come to the hands of their intes- tate. And on the 12th of the same month John Scott, who had been thus recommended by almost all the creditors, filed his remarks and propositions, in which he says, that he was willing to serve as receiver without any commission upon the money received by the late Jacob Schley. 4.th May, 1827. — Bland, Chancellor. — A receiver appointed by this court must be considered as its agent or executive officer. He stands in a situation, as regards this court, in many respects anal- ogous to that in which a sheriff is placed in relation to a court of common law. It is made the duty of a sheriff by a fieri facias to seize and take into his possession the property of the defendant ; to convert it into money, and to bring the money so made into court or pay it to the plaintiff. In this respect a sheriff acquires a possessoiy right to the property which he has been thus authorized to seize and take into his possession ; he may maintain an action grounded on such right ; and the defendant whose property has been so taken is discharged in toto or to the amount of the value seized in execution. And- the sheriff alone is held answerable to the amount which has so come to his hands to the plaintiff, at whose suit the levy was made.(m) The express terms of the order of appointment in this, as in all (771) Wilbraham v. Snow, 2 Saund. 47, note. 436 WILLIAMSON V. WILSON like cases, placed the receiver in a similar situation. He is regarded as a trustee in respect to the possession, care, and distribution of the property committed to his charge ; and as such it is his duty to prevent the property, so handed over to his keeping, from being blended with his own, and to keep such clear and separate accounts of his transactions as receiver as will enable him at all times and immediately when called on to shew the amount of money and pro- perty in his hands ; and so distinctly to designate it, as that it may be traced and followed into the hands of any one who may have wrongfully obtained possession of it.{n) A receiver is always required to give bond to account and submit to orders ; and if he fails to account, or is, in any respect, delinquent as an officer of the court, (o) he may be proceeded against in a nummary way by attachment ; or his bond may be put in suit by scire facias in this court, or an action at law so as to charge him and his sureties. (js) But here the receiver died before he had fulfilled his trust, and the question is, how far any of his rights, duties, and liabilities as such have devolved upon his personal representatives ? Where a sheriff has in his custody persons in execution and dies, the new sheriff must take notice at his peril of all executions against any person he finds in gaol ; and that from necessity ; because there is no one to make delivery or give notice to the new sheriff of the persons in custody when the former sheriff died. And if a prisoner should in the mean time, go out of the walls of the prison, it will not be deemed an escape as against either the late sheriff or his successor ; because the prisoner will be consid- ered as in the custody of the law, and may be retaken any where and at any time after. (5-) A sheriff, having no property in pri- soners detained by him in execution, leaves on his death no right, duty or responsibility, as regards them, to devolve upon his per- sonal representative. But, in personal property taken in execution by him, he has in all cases a qualified interest, so far as to hold possession, to sell and make the money, wherewith to satisfy the plaintiff. And, for such purpose, he may hold and sell it even after his oflicial term has expired and he has ceased to be sheriff. (r) From these principles it would seem necessarily to follow, where (71) Freeman v. Fairlie, 3 Meriv. 41. — (o) Anonymous, Mosely, 42. — (/>) 2 Fow. Exch.Prac.323 ; Ex parte Grimstone, Amb. 707; Davies v. Cracraft, 14 Ves. 143; Musgrave v. Mcdex, 1 Meriv. 49 ; 2 Harr. Pra. Chan. 120 ; Grant v. Stone, 1 Vein. 313.— ( J) Westby's Case, 3 Co. 72.— (r) Wilbraham v. Snow, 2 Saund. 47 notes. WILLIAMSON V. WILSON. 437 the sheriff dies at any time after he has levied the execution, and before he has brought the money into court or satisfied the plain- tiff, that the personal property' so taken in execution would pass to his executor or administrator as parcel of his estate, which should be kept separate, and applied exclusively in satisfaction of the claim for which it had been taken. But the act of 1813, ch. 102, s. 1, has provided somewhat dif- ferently for this matter, by declaring, that where it appears by the return of the late sheriff, that the real or personal property so taken by him had not been sold, the court may, on motion, order a vendi- tioni exponas to the new sheriff, upon which the property, which had been so seized, may be taken wherever found, and sold as upon the original execution. This provision, however, extends only to cases where it appears by the return, that the property taken in execution specifically remains unsold ; and therefore, where it does not so appear, or where the sheriff had made sale and died before the money was brought in or paid to the plaintiff, there, as the property or money in his hands had passed to his personal representatives, they must be held liable to the plaintiff for whose benefit the execution issued. And although no action can be maintained against the executor of a sheriff grounded on the misfeasance or breach of duty of his testator, yet the plaintiff may recover of the executor of the sheriff, in an action of debt, any money which he had levied under a ^enyacias and had not paid over. (5) In Maryland the plaintiff would be allowed to recover his debt by a suit upon the sheriff's bond, and then the sureties who had thus been compelled to pay the debt would have a right to take the place of the plaintiff as against the representatives of the sheriff. Upon analogous principles, on the death of a receiver appointed by this court, it appears to bs clear, that in so far as he had a mere duty to perform, like that of a sheriff in safiely keeping his prison- ers, nothing could devolve upon his representatives ; but that where he had acquired a qualified interest in personal propert)- as a bailee, and which it was his duty to keep apart from his own, and account for; and where he had, in obedience to an order, sold and con- verted property into money, such property and money must be con- sidered as having rightfully passed into the hands of his personal, representatives, as the only, or the most sure means of saving (s) Clerk v. Withers, 6 Mod. 299 ; Adair v. Shaw, 1 Scho. & Lefr. 265. 438 WILLIAMSON V. WILSON. harmless the estate of the deceased from the liability to which he had subjected it, by becoming bound as a receiver. (if) Hence, considering the property and money which the late receiver Jacob Schley had admitted to be in his hands, as having passed into the hands of his administrators, they must be viewed as standing in all respects in his place : and as the personal repre- sentatives of their intestate, there can be no more impropriety in proceeding against them in this court by an order nisi, foUow.ed by an attachment on their failing to shew good cause, than in sub- jecting them to an action at common law for the recovery of a debt due by their intestate, in respect of the assets which may have come to their hands. I shall therefore allow them to be pro- ceeded against in the like summary manner as would have been permitted against their intestate himself were he now alive. Whereupon it is ordered, that John Scott be and he is hereby appointed a receiver in the place of the late Jacob Schley, with full power and authority to act in all respects as Schley could or might have acted ; that before John Scott proceeds to act as a receiver by virtue of this order, he shall give bond to the State of Maryland in the penalty of thirty thousand dollars with a surety or sureties, to be approved by the Chancellor, for the faithful performance of the trust reposed in him by this order, or which may be reposed in him by any future order in the premises ; and that Joh7i Scott shall be allowed no commission for his trouble in receiving and distributing any property or money which may come to his hands under this order as receiver. And it is further oi-dered, that Anna B. Schley, John J. Mayer, and Henry Schroeder jnn^r, administrators of the late Jacob Schley, make report and render unto this court a full and fair account of all the property or money which may have come to the hands of their intestate, the late Jacob Schley, and of all his proceedings while he acted as receiver in this case ; and also, that they render a full and fair account of all property and money wdiich had so come to the hands of their intestate, and which may be now in their hands ; and of their proceedings in relation thereto. And the said admin- istrators are hereby directed and required to yield up, deliver over, and pay unto John Scott, so soon as he shall have been qualified to act as receiver as before mentioned, all the goods, wares, merchan- dise and moneys, books, papers, and effects of the firm of Wilson, (t) Shelf. Lun. 151. WILLIAMSON V. WILSON. 439 Williamson & Company, which may have been received by their intestate, and have come to their hands, or which they may now hold, or have under their control : Provided, that a copy of this order, together with a copy of this petition be served on them, on or before the tenth instant, to the end, that they may shew cause, if any they have, on the first day of June next, why they should not fully and in all respects comply with this order. On motion it was also, on the same day, ordered, that the state- ments of claims heretofore made and reported by the auditor, be confirmed, and the receiver directed to apply the proceeds accordingly ; except as to ail those claims, that had been at all objected to by the auditor, or to the allowance of which any excep- tions had been filed, which claims were suspended until further order. On the petition and representation of the receiver John Scott. 21st May, 1827. — ^^Blandi, Chancellor. — It was and still is my understanding and intention to allow to John Scott as receiver no commission on any sums for the receipt an^ disbursement of which a commission had been allowed to the late receiver Jacob Schley ; it being my determination, if possible, not to charge the estate with double commissions. I had presumed that the late receiver's account comprehended the whole estate ; and that the commis- sions had been computed and allowed accordingly ; but, should that not be the case, then the receiver John Scott will be allowed the usual commissions on all sums on which no commission had been previously charged and allowed. After which the case was again brought before the court on the report of Anna B. Schley, John J. Mayer and Henry Schroeder jun'r, administrators of Jacob Schley deceased, made in pursuance of the order of the fourth of May last ; and the receipt of John Scott the receiver therewith filed. 1st June, 1827. — Bland, Chancellor. — Ordered, that the said administrators bring into this court the sum of seven thousand four hundred and two dollars and fifty-one cents, the balance remaining in their hands after deducting the commissions and fees as set forth in their said report ; which sum the register is hereby directed to deposite in the Farmers Bank of Mar)^^land in the usual manner to the credit of this case. And it is further ordered, that the bond given by tlie late Jacob Schley, as receiver, be delivered up to the admin- 440 WILLIAMSON V. WILSON. istrators to be cancelled ; and that they with the sureties in the said bond, be finally discharged : Provided that a copy of the said report and of this order be served on the present receiver, on or before the twelfth day of this month. Unless good cause to the contrary be shewn during and before the close of the next July term by the said receiver, or by the parties to this case, or by some one interested therein. Afterwards on the 19th April, 1828, copies having been served as required, and no cause shewn, the bond of the late receiver was ordered to be delivered up, and his administrators were discharged. This case still remained open, and the w^hole of the funds of the firm not having been finally disposed of, four other creditors filed the vouchers of their claims in the chancery oflfice after the day limited by the orders of the 21st July and the 17th of November, 1826, and prayed to be allowed to come in for a due proportion. The auditor reported a statement of their claims as usual, at the request of the claimants ; and also made several other reports at the instance of creditors wdio had supplied the want of proof or removed the objections to their claims, since the first general report ; and several of those intermediate statements had been confirmed, and the claims ordered to be paid accordingly ; after which the case was submitted to obtain an order for bringing it to a final conclusion. 24:thMay, 1828. — Bland, Chancellor. — According to the course of this court, in creditors' suits, or w^here the case, by any pro- ceeding, interposed after its institution, has been necessarily cast into the form of a creditors' suit, it is indispensably necessary, before any distribution can be made, or satisfaction awarded to any of the creditors, that they should be called on by a publication in some newspaper, or other public notice, to file the vouchers of their claims in the chancery office, on or before a specified day, most commonly four months after the day of the first publication ; but a shorter period may be limited where the funds are small, or the transactions appear to be but little dispersed. After the time allowed to the creditors for bringing in their claims has expired ; the auditor, at the instance of any one concerned, may make and report an account distributing the whole of the funds in full satis- faction, or in dxie proportion among the creditors ; giving a prefer- ence to those who may appear to be entitled to it. In this first general report, all the claims having any plausible or probable WILLIAMSON V. WILSON. '441 validity, or which may ultimately be sustained by proof, are stated as of course by the auditor, who in this, as in all subsequent reports, in which he first introduces a claim to the notice of the court, informs the Chancellor of all the objections and spe- cial circumstances in relation to it, as they appear from the pro- ceedings and vouchers submitted to him. But after the day limited for bringing in claims is passed, and at any time before the funds have been ordered to be distributed, any other creditor may bring in his claim, and he will be put upon a footing with the other creditors so far as it can be done from the funds then remaining in court, by restating the account at his cost. In a proper creditors' suit the- decree for a sale of an estate for the satisfaction of creditors, in general, is in itself a final decision in favour of the claim of the originally suing creditor ; because there can be no such decree unless the plaintiff establishes his claim in whole or in part. And therefore in such case, where the whole amount claimed by the plaintiff has not been established, it is proper, that the decree should expressly specify the debt decided to be due ; leaving the other claims or parts of claims of the plain- tiff as stated in the bill to come in after, and be finally disposed of on the usual application for further directions as to them and other claims. The auditor's first general report having prepared and arranged all the materials for the judgment of the court, is usually suffered to stand over as of course some short time, after it has been returned and filed ; during which time, or before it was made, a plaintiff, or a defendant or a co-creditor, who has not by any pre- vious act lost his opportunity or waived his right to do so, may plead the statute of limitations or put in any exception to the claim of any creditor, upon which he may ask the judgment of the court. If such exception presents a question of fact'; an answer on oath may be called for, and proofs taken in relation to it ; but if it pre- sents only a question of law, then, or after the answers and proofs have been returned and filed, a day may be appointed for the hear- ing of the matter. But if after the lapse of a reasonable time no exceptions are taken to the auditor's first general report, it may be confirmed as to all claims, not objected to, and the payment of them be ordered accordingly. If a creditor finds it necessary to have time to obtain testimony to sustain his claim and remove the objections made against it, he may have time allowed him to col- lect his proofs for that purpose within or beyond the jurisdiction 56 442 WILLIAMSON V. WILSON. of the court ; and the decision may be postponed and the amount set apart to meet it reserved accordingly. But after a reasonable time has elapsed ; and where it does not appear, that any of the creditors whose claims have been objected to have been allowed time for further proof which had not then expired, and there are still some claims, the objections to which have not been removed, the case may be referred' to the auditor with directions to state a final account excluding all claims not then sufficiently authenticated so as to bring the whole controversy to a final conclusion. This case now stands in that situation. Whereupon it is ordered, that this case be and the same is hereby referred to the auditor with directions to state a final account, from which he will exclude all claims not now sufficiently authen- ticated ; and also those from which the auditor's objections, as stated in his former reports, have not been removed. All objec- tions heretofore filed by any party against the allowance of any claims, which have not been determined by the court to be valid, are hereby overruled. Notwithstanding tliis order, the parties appear to have acquiesced in leaving the case open, or to have waived the right to call for a final account as ordered ; for, on the 26th May 1830, a special confirmation of the auditor's report of the 22d of May 1828 was called for and ordered accordingly, by which it would seem that the case had been brought to a final termination ; but the objec- tions to claim No. 21, 27, and ^8 having been withdrawn, the case was again submitted, upon which on the 3d of May 1831, it was sent to the auditor to state a final account as required by the order of the 24th of May 1828. JONES r. JONES. 443 JONES r. JONES. Land was not liable to be taken and sold to satisfy a debt due to a citizen, until made so by statute ; but it might always be taken in execution to satisfy a debt due to the State ; for which it is bound, by act of assemblj-, from the da}- of the institu- tion of the suit. Under a fien facias levied upon the land of the defendant in his lifetime, it may be sold after his death. By a sale of land under a fieri facias, it was held by the Chancellor, that it was thereby converted into personalty ; and that the surplus should be paid to the per- sonal representative of the decejised defendant ; but the Court of Appeals held and ordered otherwise. Land may by operation of several forms of judicial proceeding be converted into personal estate. This court cannot order a sheriff, who has in his hands money made under an execu- tion from another court, to bring it into this court. This was a creditors' bill, filed on the 14th of February 1827, by Hiram Jones and Elizabeth Jones, against Martha Ann Jones and Emeline Jones, infant heirs of the late Jesse Jones, Richard Spencer jun'r, and Edward Brown. The bill states, that the defendant Spencer had, on the 1st of October 1824, recovered two judgments against Jesse Jones, in his lifetime, the one for $230 with interest from the 23d of January 1823 and costs ; and the other for $167 with interest from the 27th of May 1824 and costs ; which two judgments Spencer had assigned to this plaintiff Hiram Jones ; that Jesse Jones was, at the time of his death, indebted, by a single bill, to the plaintiff Hiram Jones in the sum of $79 25, with interest from the 4th of September 1823 ; that Jesse Jones, at the time of his death, was indebted to the plaintiff Elizabeth Jones, by bond, in the sum of $868 27 w-ith interest from the 16th of April 1825 ; that Jesse Jones died intestate, seized of about twenty acres of land, leaving a widow and the two infant defendants his children and heirs at law ; that there has been no administration upon his personal estate, the whole or nearly all of which had been sold under executions which had been levied upon it previous to his decease. It further appears, from the bill and its exhibits, that Thomas Dawson had brought suit in Kent County Court, and, on the 17th of March 1823, recovered judgment against Jesse Joi\es, from which Jones appealed ; that on the 7th of June 1824 the judgment of the county court was affirmed by the Court of Appeals, for the sum of $250 with interest from the 12th of July 1820, and costs-, 444 JONES V. JONES. that on the 1st of July 1824 ^ fieri facias was issued on this judg- ment, from the Court of Appeals ; and on the 16th of August following this defendant Brown, being then sheriff of Kent county, levied it on a tract of land, the property oi Jesse Jones ; that Jesse JoneSj after having made a partial payment to this sheriff, died in the month of August 1825 ; that after his death the lands which had been so taken in execution were, on the 3d of September 1825, sold by this sheriff i>/'Oww, subject to the dower of the widow of the late David Jones, and of the widow of the late Jesse Jones ; that from the proceeds of the sale, this sheriff Brown had paid the whole amount due to Dawson with the costs ; and had retained to the amount of his own poundage fees ; and also the sum of $65 50 for the payment of taxes and officers' fees placed in his hands for collection, leaving a balance in his hands of $1451 38. Upon all which the plaintiffs by their bill prayed, that the land of which Jesse Jones died seized might be sold ; that the proceeds thereof, with the balance remaining in the hands of the defendant Brown, might be paid into the hands of a trustee appointed by this court, to be applied, under its direction, to the payment of their debts, and such other claims, if any, as might be due from the intestate Jesse Jones ; and that they might have such other relief as was suited to the nature of their case. The defendants Spencer and Brown each put in a separate answer ; the infant defendants answered jointly by their guardian ; and all of them admitted the truth of the allegations of the bill. IQth July, 1827. — Bland, Chancellor. — This case standing ready for hearing without opposition from the defendants, the soli- citor of the plaintiffs was fully heard, and the proceedings read and considered. The peculiar nature of this case seems to require a more than usually attentive consideration. Putting aside so much of it as relates to the small parcel of land of which the intestate died seized, about which there can be no difficulty; this is the case of a creditors' bill, in which it appears, that the real estate of the debtor had been taken in execution, during his lifetime, and sold after liis death, leaving a balance, which even yet remains in the hands of the sheriff whose official term must have since expired, and who has been brought here as a defendant, unassociated with any per- •sonal representative of the intestate. These circumstances present a case in which it becomes necessary to determine the extent of the power of the sheriff to follow out, after the death of the defendant, JONES V. JONES. 445 the authority conferred on him by the fieri facias he had previously levied ; and if it should appear, that his authority to proceed with the execution was well founded, to ascertain whether the surplus of the proceeds of the sale, so made, is to be considered as real assets to be taken from the hands of the heirs, or to be accounted for as personal assets by an administrator of the intes- tate ; and also to inquire whether there is any mode in which this court, by any exercise of power within its own legitimate sphere, can compel an officer of another and a superior tribunal to place a fund, now in his hands by their authority, under the direction of this court to be disposed of as prayed by these plaintiffs. It was a well settled principle of the common law of England, that the real estate of a debtor could not be taken in execution at the suit of a citizen creditor, and sold for the satisfaction of the debt. This rule was considered as a fair and necessary result from the nature of the feudal tenures, according to which all the lands of that country were held. And, as the most liberal species of those tenures was expressly declared to be that by which all the lands of Maryland should be held, it followed, that real estate could be no further subject to be taken in execution here than the same kind of estate was liable in England. (a) In the case of the king, however, an execution always issued against the lands as well as the goods of a public debtor ; because the debtor was considered as being not only bound in person, but as a feudatory who held mediately or immediately from the king ; and therefore, holding what he had from the king, he was from thence to satisfy what he owed to tlie king.(6) As a consequence of this liability, and for the public benefit, if a judgment was obtained against a public debtor by the king, he thereby acquired a lien upon the real estate of such debtor, which took effect not merely from the date of the judgment, but by relation from the commencement of the suit to the exclusion of all subsequent incumbrances. (c) In England the king's debt is preferred in exe- cution and in the administration of a deceased's estate, to that of a citizen ; which right of preference was in Maryland extended to the lord proprietary, (rf) After our revolutioa it was held to have devolved, according to the principles of the common law, upon (a) Charter of Maryland, s. 5 h IS; Gilb. Exch. S9.—{b) Gilb. Execu. 3. (c) Pow. Mort. by Coven, c. 23, s. 9 ; Gilb. Exch. 93 ; Rorke v. Dayrell, 4 T. R. 410 ; Sug. Pow. lSi.—{d) 1650, ch. 2S. 446 JONES V. JONES. the State ;(e) and it ha's been expressly declared, that all lands and tenements belonging to any public debtor, after the commencement (e) The State v. Rogers, 2 H. & McH. 193; Hollingsworth v. Patten, 3 H. & McH. 125; Murray v. Ridley, 3 H. k. McH. 171. BiRCHFiELD FOR THE Ki.vG V. Brown. — This bill was filed in the year 1713 by Maurice Birchfield, surveyor general of the southern district of America, for and on behalf of th6 king against Joseph Brown,. Margaret Brown, Richard Bennett, and Richard SmitJi, the representatives and debtors of Peregrine Brown late of London, merchant, to recover a debt due from the deceased to the crown. The case standing ready for hearing was brought before the court. 9th October, 1716. — Hart, Chancellor. — Decreed, that the several tracts of land hereafter mentioned be sold towards satisfying and paying his sacred majesty king George the debt in tlie bill mentioned to be due from the deceased Peregrine Brown ; and that the sale may be made to the best advantage, notice be given of such sale to begin the 2Sth day of April next, and to continue till the 20th of May following. And that every purchaser of the same, or .any pail thereof, shall have, hold, and enjoy the same to him, or them, by a good and perfect estate in fee simple, in such manner as if the said Peregrine Brown had conveyed the same according to the exi- gence of the law: viz. Turkey Point, one thousand acres in Cecil countj', &,c. 8cc. After which the case was again brought before the court under other circumstances. Zd September, 1717. — Hart, Chancellor. — Ordered, that the persons discovered to be debtors to the estate of Peregiine Brown deceased, particularly James Frisby and Peter Carmack, be made parties to the bill filed in this court by Maurice Birchfield on behalf of the crown against Joseph and IMargaret Brown and otliers. And that the personal estate and several debts due to Peregrine Brown, and mentioned in the answer of Richard Bennett and Joseph Brown, be liable to the demand of the crown in such manner as they would be to Peregrine Brown. - Some time after Peter Carmack, who, with others, had, by a separate bill, been made a party, put in his answer tliereto, in which, among other things, he stated, that the matter in controversy had been refbrred to the arbitration of certam persons, who had made an award thereupon discharging him ; upon which award he relied. 13th July, 1723.— TiLGHMAN, Chancellor. — It seems, that Maurice Birchfield negotiated the affair Vvith Carmack, by way of arbitration, and was fully apprised of the state of the accounts betwixt Brown and Carmack, and seemed well satisfied therewith and with the award, and that Peregrine Brown wa? considerably in his, the said Carmack's, debt. And it also seemSj that Birchfield sues not in such man- ner as to entitle himself to the advantages due to the prerogative, nor agreeable to the statute of the thirfj^-third of Henry the eighth, chapter thirty-ninth, but rather as a common person, or assignee of a common person. It is therefore adjudged, ordered, and decreed, that t!ie bill of complaint of the said Maurice Birchfield be dismissed, and that the said Maurice satisfy and pay unto tlie said Peter Carmack, pounds of tobacco for his costs sustained by reason of his unjust vexation in this part.— C/wn. Records, Lib. P. L. G8, 317, 387, 392,812, and 892 ; Kilt if s Rep. 75, 205. ' This, and other similar cases which might be adduced from the records, shew, that the Court of Chancery of ]\rar)'land, before the revolution, was, in manj-- instances, resorted to as a court of exchequer. And, in relation to debts due to the State, it may be well to recollect, that, according to the English law, not only the real and personal estate of a public debtor arc liable to be talcen ip execution and sold for JONES V. JONES 447 of suit against him, shall be liable to execution in whatever hands or possession they may be found. (y") By which, legislative enact- ment the State's lien, as in England, relates not merely to the date of the judgment, but to the commencement of the action. Whence it follows, that the liability of the real estate of a debtor to the State to be taken in execution, and the lien of the State incident to such liability, ai'e founded upon the common law and the acts of assembly passed in express relation to debts due to the State. But the general rule of the common law in regard to the liability of real -estate to be taken in execution as between party and party, was modified by a statute passed in the- year 1285, (g-) which made such estates liable to be partially taken in execution. This statute, W' hich gave the writ of elegit, enlarged the remedy of the creditor by declaring, that, when a debt was recovered or damages adjudged, it should be in the election of the plaintiff to have o. fieri facias, or to have all the debtor's chattels and the one half of his lands deliv- ered to him until the debt was levied to a reasonable extent ;(A) which gave the election immediately that the debt was recov- ered ; and therefore the whole land was held to be bound from the day of the rendition of the judgment ; and those con- cerned, it was presumed, might easily ascertain from the record by what judgments the lands of the debtor were thus bound.(i) But as some inconvenience arose, because, according to the common law, judgments took effect by relation from the first day of the term, it was in the year 1676 declared by the statute of frauds,(j) that the day on which judgments were rendered should be entered upon the record ; and that purchasers should be charged from such time only, and not from the first day of the term whereof the judg- ment was entered. This then was the nature and extent of the judicial lien, as between party and party, with which the Teal estate of a debtor might become bound in Mar^dand as well as in Eng- land. And this judicial lien .was afterwards mainly fortified and enlarged by a statute passed in the year 1732, (A') applicable only to the satisfaction of the debt, but that the State might also have, what is. called, an extent in aid, or a process to be levied upon debts due from others to the public debtor to the fourth degree ; thus taking in execution choses in action, and bringing the debtors of the State's debtor before the court to answer in a way similar to that of a garnishee under a foreign attachment Gilb. Exche. ch. 12. Peicrsd. Jlbri. tit. Extent, B. The act of Congress of the 20th of April, 18 IS, ch. 7S, s. 8, gives a similar right, as against corporations, to the United States. The United States v. Robertson, 5 Peters, 659 (/) Maich 1778, c. 9, s. 6 ; November 1787, c. 40.— (g) 13 Ed. 1, c. 18.— (A) 2 Inst. 394.— (0 Gilb. Execu. 37.— (j) 29 Car. 2, c. 3, s. 14 &. 15.— (/t) 5 Geo. 2, c. 7. 448 JONES V. JONES. the then colonies of Great Britain, and received as law in Mary- land, which subjected the whole of a debtor's real estate to be taken in execution and sold for the payment of his debts. Whence it appears, that the lien arising from the judgments of Dawson and Spencer, at their respective dates,' fastened upon the real estate of Jesse Jones, adhered to it after his death, and would have followed it into whosesoever hands it might have passed until they w'ere satisfied, or the right to sue out an execution upon them had become entirely barred. But a judicial lien of this kind may exist after the case has abated by the death of a party ; and yet no execution could be immediately issued against the lands upon which it attached, after the death of the party, until the judgment had been regularly revived. And this was in fact the situation of Spencer^s judgments. Hence although it will be necessary, in the further consideration of this case, to recollect the nature and extent of the judicial lien with which the real estate of Jesse Jones had been encumbered during his lifetime ; yet the authority of the sheriff to make the sale he did, after the death of Jones, under the fieri facias, issued on Dawson^ judgment, must be deduced from other principles of law% By the common law ^ fieri facias bound the goods of the defend- ant from its teste, so that any sale made by him, after that time, was void ; because it was thought, that, if it were not so, every execution might be avoided by a sale ; and it was presumed, that the sheriff would execute such writs immediately ; and that there would be thereby such notice in the neighbourhood as to prevent any deception or fraud. But this notion of a retrospective lien, going back to the teste of the writ, was abused ; writs were taken out one under another, so aS to obtain liens upon the goods of debtors, without delivering them to the sheriff, by which means their sales and all commerce were made uncertain. To prevent which it was declared, by the statute of frauds, that the goods should be bound only from the actual delivery of the writ to the sheriff; by which the old law was, in effect, restored, which supposed the writ to be delivered to the sheriff immediately from the teste.{l) The mere seizure under the fien facias does^not absolutely or totally divest the defendant of all property in the goods taken ; but the sheriff thereby acquires only a qualified property in them ; com- mensurate, however, in -all tespects, to the performance of the (0 Gilb. Execu. 1-i. JONES V. JONES. 449 duties assigned him by the writ. He is responsible for the safety of the property, and therefore may have an action against any wrongdoer who attempts to injure it, or to take it from him. Yet, if before a sale the defendant pays to the sheriff the whole debt and costs, he is bound to redeliver the property so taken in execu- tion. The statute of frauds was intended for the benefit of pur- chasers and creditors only ; therefore, still, as relates to the party himself, the judgment and Jieri facias relate to the first day of the ternf, or at least to the teste of the writ ; so that if it be tested in the defendant's lifetime it may be taken out and executed after his death. (??i) And so, on the other hand, if the plaintiff dies, after a Jieri Jucias h?is been sued out, it may nevertheless b(f executed. And as the writ commands the sheriff to bring the money into court, it is his duty to do so accordingly, so that it may be there deposited to be paid, if the plaintiff be dead, to his executor or administrator, when he shall appear ; or, if the defendant be dead, that the surplus, if any, may be paid to his legal representatives when they may come prepared to shew their right to it.(n) Hence it is clear, that this positive command of the writ, virtually and necessarily intercepts the property in its course, and evicts it from the hands of the executor or administrator of the deceased defend- ant, who died after it bore teste.[o) These are the well settled principles of law in relation to the personal property of the defendant against whom the fieri facias issued. But, as in England real estate cannot be taken in execu- tion under a ^eri yadas, there are no English adjudications in relation to a case, like this, where \\vi fieri facias had been levied upon the real estate of the debtor. But, the statute,(;3) which subjected lands to be sold for the payment of debts has been so interpreted, and carried into effect here, as to make no distinc- tion whatever between the debtor's real and personal estate, so far as it may be affected by any execution bearing teste in his life- time. (7) And therefore, by analogy to the principles of the English law, applicable to an execution against the personalty, it has been held (m) Tidd, Pra. 915; Pow. Mort. by Coven. .275, 280, 513 ; Odss i'. Woodward, 2 Ld. Raym. 850 ; Bragner i-. Langmead, 7 T. R. 20; Docura v. Henry, 4 H. &. McH. 480.— (n) Tidd, Pra. 915.— (0) "Wilbraham v. Snow, 2 Saund. 47; Oades v. Woodward, 7 Mod. 9J ; Dr. Needham's Case, 12 Mod. 5; Waghorne rr Lang- mead, 1 Bos. & Pul. 572; Robinson u.Tonge, A P.Will. 400.— (p) 5 Geo. 2, c. 7. {q) Barney i-. Patterson, 6 H. Sc J. 182 ; Davidson v. Bcatty, 3 H. k McH. 616. 57 450 JONES r. JONES. in this, and in other States, in which this English statute has been received, that by di fieri facias which bears teste, or has been levied, during the lifetime of the defendant, his real estate may be inter- cepted in its descent and evicted from the hands of his heir ; who, if he happens to have obtained actual possession of the estate after the death of his ancestor, will be treated merely as a terre-tenant, w^hose interest cannot be allowed, in any manner, to retard, or turn aside the execution which had been thus, in fact, or by rela- tion, sued out in the lifetime of the debtor. (r) Whence it cldarly follows, that the sale of Jesse Jones'^ lands made after his death under the fieri facias issued on Dawson'' s judgment was, in all respects, regular and lawful. The next inquiry is, how far the judicial proceedings, to which the real estate of Jesse Jones has been subjected, have produced a change in its character, or converted it from realty into personalty .'' And if it has been so converted, then it will become necessary to ascertain the exact point of time at which that very important change was definitively effected. The writ oi fieri facias commands the sheriff to have the money in court, there publicly to pay the party. He may himself pay the plaintiff; but if he does so, it will be at his peril ; for he is only perfectly safe in bringing the money into court, according to the express command of the writ. The sheriff cannot deliver the pro- perty taken in execution to the plaintiff in satisfaction of his claim ; he must sell it and bring in the money. The property of the defendant is to be taken and converted by a sale into money ; and hence, if the judgment be afterwards reversed by writ of error, the defendant shall hot be restored to the thing in specie, but the money for which it was sold ; for the fieri facias gave the sheriff authority to levy the money of the goods, so that he was obliged to turn the goods of the defendant into money ; and therefore, the restitution must be of what the execution had taken from him, which was 'money, and not the thing itself, for then no body would buy.(s) These are the well settled principles of the common law in relation to personal property taken hi execution under a fieri facias ; and the statute having made lands liable to the payment of debts, and subject to the like remedies and pro- cess as personal estate, — it follows, upon the same principles, that ()■) Sir William Harbert's Case, 3 Co. 12 ; Winstead v. Winstead, 1 Hayw. Rep- 245 ; Bealty v. Chapline, 2 H. & J. 19.— (s) Gilb. Execu. 16 & 20. JONES V. JONES. 451 where lands have been sold, under a Jieri facias, they must be considered as having been converted into personalty. So that if the judgment should be afterwards reversed, the title of the pur- chaser cannot be affected by it ; for otherwise there would be no security in purchasing at sheriff's sales. (^) Hence the surplus of the proceeds of a sale of lands, as well as of goods, remaining in the hands of the sheriff after a sale made by him under a fieri facias, can only be viewed as the surplus of that money which he was commanded by th« WTit to make and bring into court. And hence such surplus must be regarded in all respects as a portion of the personalty of the defendant. From a case reported, as having been considered and determined by the General Court, it appears that Philemon C. Blake had given two bonds to the State for the performance of his official duties as sheriff; on which the State sued, and having obtained judgments on each of them, issued 2l fieri facias on the first judg- ment, and had it levied upon his real estate, which was sold for a sufficiency to satisfy the first judgment, leaving a surplus of d£SO, which was then in the hands of the defendant. The only question was, whether the State was entitled to a preference from the com- mencement of the second suit, over any judgments obtained against Blake, after that time. As to which it was held, that upon the State's obtaining a judgment against its debtor, the act^f assem- bly(i<) gave it a lien upon his lands by relation from the com- mencement of the suit, into whosesoever hands they might come ; and therefore, that the State was entitled to have its second judg- ment satisfied out of the surplus in preference to any judgment rendered after the commencement of its second suit.(t') The court is reported to have said, in delivering the reasons of their judgment, that " the surplus of the money arising from the sale of the said Blake^s land, after satisfying the first judgment of the State, remaining in the hands of the defendant, is to be consi- dered as land, and subject to the attachment of the State, issued on the second judgment, in preference to the claim of the plaintiff. "(lo) But the only question was, whether the lien of the State con- tinued to adhere to the proceeds of the sale. Whether they were to be considered as realty or personalty, was, therefore, a matter of no kind of importance ; and so it appears from the general tenor {t) Davidson v. Beatty, 3 H. & McH. 616; Bamey v. Patterson, 6 H. & J. 204. (u) March 1778, ch. 9, s. 6.— (f) Davidson v. Clayland, 1 H. Si J. 546.— (u^; David- son V. Clayland, 1 H. Sc J. 550. 452 JONES V. JONES. of the arguments of the cor.nsel, as well as of the opinion of the court. The question turned upon the construction of the act of assembly as to the continuance of the State's lien, and nothing more. The point, whether by a sale under a Jieri facias^ the real estate had been converted into money or personalty, or whether the surplus was to be regarded as real or personal estate, could not have arisen ; because either alternative might have been assumed ; and, upon the principles laid down, the decision must have been the same ; and therefore, this point could not have been in the mind of the court and decided upon in that case. And besides, this act of assembly(a:) does, in itself, most manifestly regard the surplus as money or personalty ; for, it declares, that the sheriff shall sell the lands to the highest bidder, and shall retain sufficient in his hands to pay the debt and all costs, his own fees included, returning the overplus, if any, to the debtor ; that is, he shall from the money, into wdiich the lands have been converted, pay the debt, returning the overplus of that money to the debtor. There is therefore nothing to be found in that case, when care- fully examined, w^hieh can be considered as at all at variance wdth the general and well settled principles of the common law, accord- ing to which, in all cases where personal property has been legally sold under ?i fieri facias, it is held to be made into money ; or, if it be realty, that it is by such sale converted into money, or personalty. It frequently occurs in this court on creditors' bills, where the originally suing creditor claims by simple contract, and the land has been sold to satisfy his claim, that tliere afterwards come in mortgagees or judgment creditors ; in which case the sale stands and is deemed valid, and their liens are considered as following and binding the proceeds of the sale ; not because those proceeds are held to be realty ; but because no act of any other creditor, or of the court can divest a mortgagee or judgment creditor of his lien upon the lands without giving him a satisfaction, according to the priority of his lien, out of the proceeds, of the sale of that land which had been so bound. If, however, in a creditors' suit against the representatives of their deceased debtor, his lands are sold to pay his debts, leaving a surplus ; or if, in a suit by a mortgagee against the heirs of the mortgagor, the mortgaged land is sold to pay the debt, leaving a surplus, in such cases the surplus is con- (X) r.Iarch 1773, ch. P, s. 7. JONES V. JONES, 453 dered as a part of the proceeds of the real assets taken from the heir ; therefore, must be paid to him, not to the executor or administrator of his ancestor ; and, consequently, can only be taken from him to satisfy other claimants, who may have an equity to be let in, after the distribution, by a special application, under the creditors' bill, or in the suit by the mortgagee, upon the ground of the insufficiency of the personal estate of the deceased. (3/) There are other modes of judicial proceeding by which real estate may be changed into personalty, or by which lands may be converted into money or choses in action. This often occurs under the acts of assembly directing the course of descents ; according to which, where the lands of an intestate are incapable of being divided among his heirs without loss, they may, on application to the proper court of law, be ordered to be sold, and the proceeds of the sale, or the bonds of the purchaser, divided among the heirs. But, the exact point of time when the judicial proceeding, instituted for that purpose, had effected a change in the nature of the property, was considered as a most interesting question in its consequences to the relative rights of the parties. As to which it was held, after mature deliberation, that the mutation of the estate, from real to personal, may be determined to be complete when the commissioners' sale is ratified by the court, and the purchaser has complied with the terms of it, by paying the money, if the sale is for cash, or by giving bonds to the representatives, if the sale is on a credit. (~) According to this rule, the mutation, from realty to personalty, can only be finally consummated by a series of separate and dis- tinct acts : Jirst, there must be a judgment or judicial authority given by the court to sell ; secovdiy, the commissioners, or agents employed to make the sale, must have reported to the court, that they had, in pursuance of that authority, made a sale ; thirdly, the court must have ratified the sale so made and reported ; and lastly, the purchaser must have either paid the purchase money or have given his bonds to secure the payment of it to the party entitled. When all these acts have been done, the judicial function of the court, in relation to the subject, has finally terminated ; and the fund which had been submitted to its operation has been, thereby, (y) Pow. Mort. by Coven. 9S3; Bromlej' v. Goodere, 1 Atk. 75 ; Flanagan v. Fla- nagan, cited 1 Bro. C. C. 500 ; Banks v. Scott, 5 Mad. 493 ; Mackubin v. Brown, ante 410; Wright v. Rose, 2 Sim. & Stu. 323; Femvick v. Laughlin, post 474. (2) The State v. Krebs, 6 H. &. J. 36. 454 JONES r. JONES. changed from one kind of proj^erty into another ; from real into personal estate. With regard to the mutation of the estate, the rule in equity seems to be different ; or, at least, it appears to have been held, that all four of those several acts are not essentially necessary to produce a conversion of the property from realty to personalty. For, where, on a bill in chancery to obtain a partition of the real estate of an intestate among his heirs, one of whom was then a feme covert ; on the lands being deemed incapable of division, a decree was passed ordering them to be sold ; and the trustee, appointed for that purpose, reported, that he had sold them accord- ingly ; which sale was finally ratified by the court. After which, and before the purchase money had been paid, and before any order had been passed by the court, directing the manner in which the purchase money should be distributed, the feme covert died ; and then her husband died. Upon which the interest of they^me covert, at the time of her death, was viewed in the nature of an equitable chose in action ; her individual legal estate in the realty having been changed by the decree, the sale, and the ratification thereof, into a floating undivided interest of that kind. Hence it appears, that, in equity, the mutation is effected by the mere preliminary operations of the court, or by those judicial proceedings which are always had as preparatory only to that par- tition of the property among the parties which is the sole object of the suit. And it was further held, that although the husband was a party to the suit, yet he could not be considered as having, by those proceedings alone, reduced this interest of his wife's into possession ; because tlie proceeding only directs a sale of the pro- perty, and the proceeds to be brought into court. It professes not to ascertain the rights of the respective claimants ; it makes no distribution, it awards no payment, either immediately or contin- gently, to husband and wife, or either of them ; no such decree has passed as is equivalent to a judgment at law, which would vest the chose of the wife absolutely in the surviving husband ; nor has any order been passed by the court directing the proceeds to be paid to the husband and wife, or to the husband alone. And therefore, although the real estate of the wife had been converted into an interest in the nature of an equitable chose in action, that is, into mere personal property of that description ; yet, as the husband had not reduced it into possession during his lifetime, it passed to the JONES V. JONES. 455 personal representatives of the IdLteJems covert, not to those of her deceased husband. («) A married woman, who is entitled to an undivided part of a real estate, cannot be, in any way, deprived of it without her express consent ; which, by the common law, can only be obtained by a Jine, or, under the acts of assembly, by her privy examination and acknowledgment of a deed conveying it to another. From necessity', and for the purpose of effecting a partition of a real estate, which is incapable of division withput loss, it may be sold and converted into personalty. But a change of the nature of property, in order to attain a particular object, should not divest tho owner of his right to it, to any extent whatever. The conversion of a real estate into personalty, for the purpose of thereby awarding to a feme covert, more fully and exactly than could otherwise be done, her due share of it, ought not to be allowed to operate so as to impair her right to it, or to lessen her absolute control over it in any way whatever. When a married woman petitions for, or con- sents to have a partition made of a real estate, in which she is entitled to an undivided interest, and acquiesces in a sale of it, for the purpose of making a just division of its value, because of its being difficult, or impracticable to make a correct partition of it in kind without mutual loss, she ought not to be considered as har ing, thereby, virtually agreed to have her own absolute right to het share transferred to another, or in any way lessened or impaired. For if that were the effect of the judicial proceeding, then the in- evitable consequences of a suit for a partition, in all such cases, would be, that the suit itself would operate as a partial or total extinguishment of the rights and interest of the yeme covert. Because, if, by a sale, for the purpose of effecting a partition, the wife's share is thereby converted into personalty, which her husband may, at pleasure and without her consent, reduce into possession, the result will be, that she may thus be divested of her real estate without her express consent ; and even if the husband were allowed so to take the wife's share as per- sonalty, subject to what is called the wife's equity, then she could only have a portion of it settled upon her ; whereas the whole of the proceeds of sale awarded to her are, in truth, but the substitute for her realty ; and therefore, to do her justice^ the (a) Leadenham r. Nicholson, 1 H. &G. 275; Hammond v. Stier, 2 G. & J. 81 ; Caryi). Taylor, 2 Vera. 3C2. 456 JONES V. JONES. whole tihoulJ be settled upon her as land ; unless she should expressly consent that the proceeds of sale should be otherwise disposed of.(«) (a) Spurrier v. Spurrier, post 000 ; Iglehart v. Armiger, post 000. Wells D. Rolosox. — Tliis bill, which was filed on the 12th of June 1815, states, tliat the late John Wells, by his last will, among other things, devised certain real estate to his children, as tenants in common ; one of wliom, Margaret, Avas to hold for life witli remainder over to her children in fee ; that Margaret had several children who are infants, and was then the wife of the defendant Richard Roloson; that the land was incapable of division ; and that a division could notie obtained because of the infancy of JNIargaret's children. Prayer that the estate might be sold and the proceeds dixided. The defendants answered, admitting the facts as stated. 20th Ji'l'j, 1S16. — Kilty, Chancellor. — Let a commission be issued under the act to direct descents to persons to be named by the complainant. After which the case standing ready for hearing, and being submitted, the bill, answer, exhibits, and return of the commissioners, together with all other proceed- ings having been by the Chancellor read and considered ; it was on the 31st of December 1816 decreed, that the real estate be sold, and that William Gwynn be the trustee for that purpose, &.c. A sale was accordingly made and confii-med. On the 25th of August, 1817, the au-ditor reported a distribution of the proceeds of sale after deducting costs, &c. ; in which he says, that he had divided the balance among the deceased's children to be paid agreeably to his wiU, — that is, among others, to Caleb Davis and Mary his wife, one-sixth of the balance $963 86, and to Richard Roloson and Margaret his wife during her life, and thereafter to her children or their issue according to the deceased's will, $963 86. 2Sd September, 1817. — Kilty, Chancellor. — Ordered, that the above statement as reported be confirmed, and the proceeds applied accordingly, with interest on the commission and dividends, in proportion as it has been or may be received. After which the trustee, referring to this last order, prayed, that he might be authorized to pay the dividend awarded to Margaret and her children to the register, that tlie same might be applied, invested or paid over as to the court might appear just and most conformable to the will of the said John Wells. 30th September, 1817.— Kilty, Cha7icellor.— The trustee is authorized to pay into this court, to the register thereof, the part of the proceeds of the sale mentioned in the above petition, to be deposited in the usual manner subject to the order of tlie court. Which dividend having been brought into court accordingly, Margaret Roloson set forth, that she was willing and able to give good securitj- ; and thereupon prayed, that the dividend awarded to her might be paid over. 28/^ October, 1817. — Kilty, Chancellor. — On the application of Margaret Roloson the report of the auditor and the will of John Wells have been considered. A bond must be executed by Richard Roloson for the payment of the sum, to wit, $963 86 to the children of Margaret Roloson or their issue after her death according to the will of John Wells. The penalty of the bond to be 2000 dollars. Mar)' Davis by her petition states, that her husband Caleb died on the 14th of June 1817, without having received any part of the proceeds of sale; that she had been advised by the trustee to take out letters of administration on the estate of her JONES V. JONES. 45Y It may well be doubled, whether it is within the constitutional competency of either the legislative, or judicial department of our late husband, or to obtain an order from this court for the share awarded to her and her husband by the order of the 23d of September 1817 ; but that she conceived her- self entitled, in her own right, to the whole share as one of the children of the testator. IWi February, 1818. — Kilty, Chancellor. — This petition of Mary Davis has been considered ; and tiie trustee is thereupon authorized and directed to pay the sum allotted to Caleb Davis and Mary his wife to the said Maiy Davis, with interest as prescribed in the order of September 23d, 1817. Roloson and wife by their petition alleged, that tlieir share had been, as thev were informed, paid by the trustee to the register, who they prayed, might be ordered to pay it over to them. To which petition was subjoined an order signed by JMargaret, directing it to be paid over to Richard her husband. 21s/ February, 1318. — Kilty, Chancellor. — The parties should have known, that the money is deposited in bank and cannot be drawn by the register without the order of the court. If the petitioners elect to take a part of the money, as an equi- valent to the use of the whole for life, it must be so stated ; and witnessed, as to Margaret Roloson. The present petition and the order of Margaret Roloson are in general terms for the dividend, and would not justify the payment of any part of the money. The allowance will be tliree-sevenths of the whole sum. Roloson and wife by their petition stated, that they elected to take a part absolutely instead of the whole for life. To which petition was subjoined a draft by Mar"-ai-et, in favour of Richard, which was witnessed by T. W. Griffith. 24/A February, 1818. — Kilty, Chancellor. — On the above application it is ordered, that the said R. and M. Roloson be allowed three-sevenths of the sum allotted to them for life ; which, out of $963 86, amounts to $412 8|, leaving a fraction of one fourth ; and a check will be ordered for that sum ; and $74 93i to R. Roloson as guardian of the children ; making together the sum of $487 7 paid in by the trustee, and deposited. The further sums to be received applicable to the said allowance may be paid to the said R. Roloson as guardian to tiie children by the tiustee when received or bronght into court, with interest according to the order on the auditor's report. David Wilson and Joseph Read set forth that they were the sureties of Richard Roloson, that he had deceived them ; and that they did not consider themselves sale ■ that they had made application to the Orphans Court to be discharged, and tliey thereupon prayed that the dividends awarded to the infants might not be paid to Roloson. Ith Jlpril, 1818.— Kilty, Chancellor.— In consequence of the application of D. Wilson and of J. Read, the trustee is directed to pay any further sum, that may be received, applicable to the allowance to R. Roloson and wife and her children, into court for further order. A copy of this application and order to be sent to the trustee. Adam Waltemeyer and Rachel his wife by their petition stated, that she wa.s one of the children of Margaret Roloson ; and as such was one of those who, under the will of John Wells, was entitled to take after the death of Margaret. Upon which they prayed, that the one-sixth of the proceeds, to which Margaret was entitled for life, might be so invested as that the interest or profits only should be paid to her during her life, securing the whole to the use of her children after her death. 25^1 July, 1818.— Kilty, Chancellor. —On considering the proceedings in this sul^ 58 458 JONES v. JONES. government to pass any law, or to do any act which shall result in thus divesting any one of his property, or impairing his rights without his express consent. It is a general rule of law, from which no court of justice should permit itself to deviate, that no citizen can, in any way, be deprived of his property without his con- sent ; or otherwise than as a punishment ; or as a means of compelling him to pay his debts, and comply with his contracts. If, being com- petent to consent, he refuses to allow his property to be applied to a public purpose, it cannot, even in that case, be taken from him with- out an adequate compensation. But, if the owner be incompetent to contract, or to manage his own affairs, a court of justice never undertakes, even to alter the nature of his property from realty to personalty, or the reverse ; except from necessity and for his obvi- ous advantage. (6) So too, although this court has been expressly authorized, by various acts of assembly, for the benefit of an infant, or person non compos mentis, to have his real estate sold and converted into personalty ; yet, as he can give no consent to any such conversion, it is but just, that his rights and interests should be no further deranged or impaired than may be indis- pensably necessary ; therefore, it has been expressly declared, that the proceeds of the sale of the real estate shall, in such cases, pass as realty to the heirs of such infant or person non compos mentis, as if no such sale had been made.(c) An obvious consequence of this mutation of a wife's real estate into personalty, is, that it casts over the property thus changed, by w^hat seems to be considered as the tacit consent or acquiescence and particularly the order of February 24th, 181S, allowing to R. and M. Roloson a certain portion of the sum reported instead of the use of the whole sum for life ; the proportion of A. Waltemeyer of the residue including interest paid in is found to be ^142 56, for which sum a check in his favour will be ordered. Margaret Roloson by her petition stated, that conceiving herself entitled, during her life, to the interest arising from one-sixth of the purchase money received from the sale of the property in the proceedings mentioned, or such part thereof as now remained in the chancery office, she prayed, that the same might be invested in some way for her exclusive use and benefit ; so that she might during her life receive the interest thereof, notwithstanding her coverture, for her own separate use ; and not subject to the control of her husband, as she will receive no benefit whatever from it if paid to him. 24//t Fcbrvan/, 1S20.— Kilty, Chancellor.— The petitioner is referred to the order of the 24th of February 181S, on her petition with her husband, by which a certain sum was allowed to him in lieu of her interest. (t) 1 Mad. Chan. 339; High. Lun. 60, 69.— (c) 1800, ch. C7, s. 5 ; 1816, ch. 154, s. 9 ; 1828, ch. 26, s. 3 ; 1829, ch. 222. JONES V. JONES. 459 of the wife, (but certainly without her privy examination or express assent,) all the law which regulates personal property belonging to the wife. As land, her husband could have only a limited and qualified right to and enjoyment of it ; she could not be deprived of it without her solemn, free, and express consent, which if not given, it would after her death pass to hei' heirs ; but as personalty, on being reduced into possession by the husband, it becomes abso- lutely his property, and may be wasted or disposed of by him without any control from her.(rf) But subject to these principles in regard to the mutation of tlie property itself, the Court of Appeals has distinctly recognised the existence of that right of a Jeme covert in regard to her property which her husband may ask a court of equity to put into his hands, called " the wi/'e^s equity ;''^ and w^hich can only be secured to her by a court of equity. (e) In rela- tion to which, it has been laid down, that where a husband comes into equity to obtain any of his wife's choses in action., the court will not receive her consent to bar her equity, until after the amount due to her has been ascertained ; for, though she may not think $500 the proper subject of a settlement, she may think differently of $5,000.(/) But although, in general, choses in action are not subject to be taken in execution, either at law, or in equity ; yet this interest, which has been held to be in the nature of an equitable chose in action, will be so far considered as parcel of the realty as to be subject to be intercepted by an order of this court for the benefit of the creditors of the deceased debtor where his personalty has been exhausted, or where the heir to whom it has been aw^arded is the debtor and is beyond the jurisdiction of the State. (o-) The rules thus laid down upon this subject must however, as it would seem, be received with some qualification. The six heirs of an intestate instituted proceedings at law^ to have the real estate, which they claimed by descent, divided among them ; on the commissioners having made return of its value, and that it would not admit of a division without loss ; one of them elected to take the whole, at the valuation. After which, the elector having failed to pay the valuation, one of the heirs, who had not been satisfied, brought an ejectment, for his one undi- (d) Chaplin V. Chaplin, 3 P. Will. 245.— Ce) The State r. Krebs, 6 H. & J. 37. (/) Jernegan v. Baxter, 6 Mad. 32.— (g) Baltzell v. Foss, 1 H. & G. 504;"McCaii- thy V. Goold, 1 Ball & B. 3S9. 460 JONES V. JONES. vided sixth part of the land descended, against the elector. Upon which it was held, that a legal estate in fee, in the land elected to be taken, cannot vest in the party electing to take, and pay the value, without his actually paying the persons entitled their just proportions of the value in money, or giving bonds to them for the same agreeably to the act of assembly. (A) Whence it would seem, that although the elector may be regarded as a purchaser ; yet, by his election alone, the estate is not thereby changed from realty to personalty, or froni an undivided estate into an estate in severalty, until the value, in money or bond, has been actually paid or given, although the judicial proceedings under which the election had been made may have been, long before, finally terminated. (?') In the case now under consideration the court is informed, by the bill, that the surplus of the proceeds of the sale of the real estate of the late Jesse Jones, yet remains in the hands of the sheriff, who made the sale, in obedience to a writ oi fieri facias, which emanated from the Court of Appeals of the Eastern Shore ; and further, that there has been no administrator appointed to take charge of the personal estate of the intestate Jesse Jones. I feel perfectly satisfied, that the surplus in the hands of the late sheriff, who is now here as a defendant, must be regarded as per- sonalty ; and as such belongs not to the heirs, but to the personal representative of Jesse Jones. But there is no such person here as a party to this suit ; and, v/ithout such a party, I hold it to be impracticable, by any decree of this court, to affect this surplus ; which, as personalty, can only be called for from the hands of the personal representative of the intestate to whom it rightfully and exclusively belongs. For, although creditors may be allowed to proceed against the heirs alone, in respect to the real assets de- scended to them, where there is no administrator, or the personalty has been altogether exhausted ; yet they certainly cannot be allowed, in this way, to obtain satisfaction of their claims from a merely personal fund, to which they direct the attention of the court, without making the administrator, who alone can be entitled to such fund, a party to the suit. Supposing however, that an administrator of the late Jesse Jones was here as a party to this suit ; even then, this defendant Brown, the late -sheriff, as regards his possession of this surplus, must be (A) 1802, ch. 94 ; 1S20, ch. 191, s. 20, 21, & 22 ; Jarrett v. Coolcy, 6 H. 8c J. 25S. (/) Ridgely v. Iglchart, post. JONES V. JONES. 46L considered as an officer of the Court of Appeals. But can the Chancellor order money, which has been legally placed in the hands of an officer of the Court of Appeals, subject to their con- trol, to be brought into this court, to be disposed of here as may be deemed right, among the parties to this suit ? This court might order an administrator, if there was such a person here as a party to this suit, to move the Court of Appeals to direct their officer, this sheriff, to pay this Surplus to him the administrator. But the Chancellor can give no such direction to this sheriff; because in Undertaking to control an officer of the Court of Appeals as to any disposition of money placed in his hands by their authority, the Chancellor would thus bring this court into direct conflict with the jurisdiction of that tribunal, which certainly ought not to be done in any manner or under any circumstances whatever. Money in the hands of a sheriff, or of a third person, cannot be taken under a fieri facias ; and the correctness of this position generally is recognised by the attachment act, (J) which gives what is called a judicial attachment as against third persons. But even that pro- cess cannot be levied upon money which had been made, and brought into the hands of a sheriff by virtue of a writ oi fieri facias ; because no third person or other court can be allowed to interfere with the execution of his duty according to the command of the process of that court under whose authority he was acting. (/f) Hence it is clear, that this sheriff Brown has been improperly made a party to this suit. . Whereupon it is ordered, that this case stand over, with leave to amend and to make proper parties. Afterwards on the 6th of Jtme 1828, the plaintiffs filed in this case the following judgment or direction of the Court of Appeals. " Court of Appeals for the Eastern Shore of Maryland, June term 1828. — Ordered by the court, that Edward Brown, late sheriff of Kent county, pay to such trustee as the Chancellor of Maryland shall appoint, the sum of fourteen hundred and fifty-one dollars and thirty-eight cents, which sum of money the said Edioard Brown as sheriff aforesaid, in his return upon a writ o^ fieri facias issued from this court at the suit of Thomas Dawson against Jesse (j) 1715, ch. 40, 3. 7 ; Parke's His. Co. Chan. 274.— (/.-) Turner v. Fendall, 1 Cran. 133 ; Armistead v. Philpot, Doug. 231 ; Willows v. Ball, 2 New Rep. 376-; Fieldhouse V. Croft, 4 East, 510 ; Knight y. Cridd]e,9 East, 48 ; Stratford v. Twynam, Jac. Rep. 418; 1S31, ch. 321. 462 JONES r. JONES. Jones, states to have remained in his hands after paying and satis- fying the debt, damages, costs, and charges due upon the said fieri facias, and the taxes and fees due to him the said Edioard Brown as late sheriff and collector of Kent county. The said sum of money being part of the real estate of the said Jesse Jones deceased. The Chancellor Avill distribute and dispose of the same as he shall deem equitable and proper." Upon all which this case was again brought before the court and submitted without argument. 9th June, 1828. — Bland, Chancellor. — Decreed, that in obedi- ence to the order of the Court of Appeals for the Eastern Shore of Maryland, filed in this case on the sixth instant, the said sum of $1451 38, mentioned in the bill of complaint, be paid by the said Edward Brown to John B. Eccleston, the trustee herein after named ; which money having been declared by the said order to be a part of the real estate of Jesse Jones deceased, when received by the said trustee he shall bring into this court to be applied under the Chancellor's direction, after deducting the costs of this suit, and such commission to the trustee as the Chancellor shall think proper to allow in consideration of the skill, attention, and fidelity wherewith he shall appear to have discharged his trust; that before the said trustee shall be entitled to receive the said sum of money, he shall file with the register of this court the bond herein after mentioned ; that provided the said sum of money shall be paid by the said Edward Brown on or before the first day of January next, no interest thereon shall be demanded ; but if not then paid he shall from that time be required to pay interest on the same. It is further decreed, that the lands in the proceedings mentioned be sold, that John B. Eccleston be appointed trustee to make the sale, &c. &c. ; and that the trustee at the time of advertising the said property for sale, give notice to the creditors of the said Jesse Jones to file the vouchers of their claims in the chancery office, wuthin four months from the day of sale. After which the trustee made sale of th^ real estate, which was ratified on the 13th of April 1829, and having received the surplus from the defendant Brown, and given notice to the creditors, who came in ; the whole estate was finally distributed ; after allowing to the two widows each a portion of the proceeds of the sale of the realty sold by the trustee in lieu of their dower. DORSEY V. HAMMOND 453 DORSEY V. HAMMOND. The auditor is a ministerial officer of the court. The general character and nature of his duties. His fees, being a part of the costs, the payment of them may be enforced, in a summary way, like costs Statements may be made by the auditor for the parties with or without the directions of the Chancellor. The mode in which creditors are made to contribute to a creditors' suit. In a creditors' suit the proceeds of the realtj' are to be distributed in the same order among creditors in which the personally' is to be distributed among those only whose claims have been so avouched as to authorize the Oqihans Coui-t to allow of their payment. A claim may be contested so as to put the claimant to full proof; in wliich case if it be not legally established it must be rejected. A judgment against an executor or administrator is no evidence against the heirs ; against whom the claim must be authenticated as if no such judgment existed. An absolute judgment against an executor or administrator is conclusive evidence against him of a sufficiency of personal assets in his hands. After a claim has been decided upon, it cannot be again brought before the court in a different shape ; except under such circumstances as would form a sufficient foundation for a bill of review, or a re-hearing. This was a creditors' bill filed on the 13th of December, 1826, by John W. Dorsey against Rezin Hammond., the executor, and Denton Hammond, Matthias Hammond, and Caroline B. Hammond., infants and devisees of the ]dXe Matthias Hammond. The biU states, that the deceased being indebted to the plaintiff, he had brought suit and recovered judgment against his executor the defendant Rezin Hammond, from whom he, the plaintiff, had received payments, leaving a balance due him of $.3182 49 ; that the testator had died seized of a larjje real estate which he had devised to the infant defendants ; and, that the whole of his per- sonal estate had been exhausted and disposed of in payment of his debts. Whereupon the plaintiff prayed, that the real estate might be sold to satisfy the balance due him, and such other of the creditors of the deceased as should come in under this suit. The defendants by their answers admitted the facts set forth in the bill ; and on tlie 19th of ]March 1827 it was decreed, that the real estate be sold, and that notice be given to the creditors of the deceased to file their claims in the chancery office within four months after the day of sale. After which, on the representation of tlie trustee, that there was a large body of land, embraced by the decree, which it was thought most advisable to have laid off into lots and offered for sale in parcels, it was, on the 9th of May 1827, ordered that the surveyor 464 DORSEY v. HAMMOIVD. lay out the lands accordingly and make return of a plot thereof. And the trustee having reported, that he had made sale of the estate, as thus laid off into lots, and had given notice to the creditors of the deceased to file their claims as required by the decree, the sales were finally ratified, no cause having been shewn to the con- trary after the usual order of publication. On the 29th of February 1828, the auditor reported, that he had examined the proceedings and stated all the claims exhibited asfainst the estate of the deceased, and an account between the estate and the trustee, in which the proceeds of sale were applied to the payment of the trustee's commission and expenses, costs of suit and survey, county taxes, and dividends on all the claims stated. But that claim No. 3 was not proved as required by the act of 1798, ch. 101 ; that claim No. 4 was against the deceased as surety, and that the insolvency of the principal debtor was not proved ; and that absolute judgments had been recovered against the executor by the creditors for claims No. 3, 4, and 5, which judgments being conclusive evidence of the sufficiency of the per- sonal assets to satisfy those claims, had destroyed the right of those creditors to resort to the real estate. On the 6th of March following the auditor made another report, in which he says, that he had admitted two other claims, and had re-stated the account, and had deducted the additional costs from the dividends allotted to the two newly admitted claims. 22c^ March, 1828. — Bland, Chancellor. — This case having been submitted, in relation to the claims reported by the auditor as No. 3, 4, and 5, on the remarks in writing of the solicitor of those claimants, the matter has been maturely considered. It has been insisted, that the auditor had no right to make such objections, as those set forth in his report, to any claim. I do not recollect ever to have met with an instance in which an auditor's report has been opposed upon similar grounds before. I deem it therefore proper to say something upon this subject, not because I entertain any doubt, or perceive; any difficulty, but from a wish that the practice and course of the court should be better understood. From the nature of the cases brought before this court it is perfectly obvious, that calculations, dividends, and statements of accounts must often be required to be made for the elucidation of the matter, or as preparatory to a decree, or order. Formerly such accounts, or statements were most usually made under a special commission for that purpose, directed to certain commissioners who were DORSEY V. HAMMOND. 465 required to take testimony, to make the necessary statements there- from, and to report accordingly to the court. Such commissions were frequently executed at a distance from the court, without any help or light from the pleadings, in which the claims and pretensions of the parties were set forth ; and, without any immediate access to the Chancellor for explanation of principles, in case of any doubt, or dif- ficulty with the commissioners. Such a mode of preparing and stating accounts must often have been attended with much expense and incon- venience ; yet as it is a mode of proceeding properly belonging to this court, which has not been in any way expressly or virtually abolished, it may now be resorted to in cases where the books, documents and proofs are at a distance, and cannot, without much inconvenience, be brought into court, and lodged within reach of the regular auditor.(a) (a) Clapham v. Thompson, ante, 123; Rutland v. Yates and Petty, MS., 25tli August 17S9. BiRCHFiELD V. Vanderheydem, 12th July 1722. — After a commission to account, which had been issued to commissioners at a distance from the court, had been returned without any thing having been done, the plaintilF moved " for another commission to some persons in Annapolis to auditc the same accounts for his more easy laying the ac- counts of the deceased before them ;" which was granted. — Ch. Rec. Lib. P. L.fol, 891. DoRSEY V. DuLAXY. — This bill was filed, 11th December 1762, by the plaintiff against the administrator of his deceased partner, for an account, &c. The com- plainant and defendant, by their counsel, consented and prayed that a commission might issue to some persons to examine evidences and audite accounts in relation to the said case : whereupon commissioners were struck by the counsel of the parties in the usual manner, and a commission issued accordingl)', directed to the several persons therein named and appointed, in the words following : Maryland, Set. — Frederick, absolute lord and proprietary of the province of Maryland, and Avalon, Lord Baron of Baltimore, &c. : To Dr. John Stevenson, Bryan Philpot of Baltimore county, Lancelot Jaques and George Clark of Ann Arundel county, gentle- men ; greeting : Know ye, that we have nominated and appointed you, or any three or two of you to be our commissioners to examine evidence ; as also to audite, state, settle and adjust all accounts in a certain cause depending in our High Court of Chan- cery, between Caleb Dorsey of Ann Arundel county, iron master, complainant, and Henrietta Maria Dulany, administratrix dc bonis non of Edward Dorsey csq'r. of the same county, defendant : We therefore require you or any three or two of you, that at such time and place, as to you or any three or two of you shall seem convenient, you cause to come before you or any three or two of you all such evidences as shall be to you, or any three or tv»o of you named or produced by either the complainant or delind- ant ; and also to state, audite, settle, and adjust all accounts relating to the inattcr in dispute that shall be produced to you, or any three or two of you, by either ol' the pai - ties, and that you exomine them, and every of tiicm, on their corporal oaths to be by you administered on the Holy Evangelists, in the presence of the said complainint and defendant, if (hey, having timely notice thereof, think fit to be ju-escnt, touching their knowledge of any thing that may relate to the cause albre.-iaid ; and that you reduce into writing such account as shall be staled and settled by you; and the same with the said depositions you send together with this our commission under your or any three or two of your hands and seals with all convenient speed to us in our High 59 466 DORSEY V. HAMMOND. But the Chancellor has been authorized to appoint an auditor during his pleasure. (6) This auditor is the calculator and accountant Court of Chancery. Witness ourself at the city of Annapolis, this 25th day of May, ^nno Domini, 1763. Reverdy Ghiselin, Reg. Cm: Can. On the back of the aforegoins^ commission was thus endorsed, to wit. — Baltimore county, October the 3d, 1763. Came the within named John Stevenson, Biyan Phil- pot, Lancelot Jacques, and Corbin Lee, before me the subscriber, one of his lord- ship's justices of the peace for Baltimore count}% and severally made oath on the Holy Evangels, that they would well and truly audite, and state all such accounts as should be by the within parties respectively laid before them pursuant to the within commission, according to the best of their knowledge and understanding. " To his Excellency Horatio Sharpe, esq'r, Chancellor of Marj'land, &c. " We the commissioners, within named, do hereby certify, that by virtue of the within commission to us directed we did, after being legally sworn thereto, and after the appointment, and due qualification of Mr. Daniel Chamier as our clerk and assistant therein, meet at the house of Mr. Daniel Barnet in Baltimore town, on the third day of October seventeen hundred and sixty -three, in the presence of Caleb Dorsey the within mentioned complainant, and Benjamin Beal of Annapolis, on the part and behalf of the within mentioned defendant, in order to adjust, audit, and settle all accounts re- lating to the matters in dispute between the said parties, and did there and then proceed to settle, adjust, and audite, and did there and then settle, audite and adjust in the pre- sence of the said complainant, and the said Benjamin Beal, after hearing all the allega- tions of the said complainant, and the said Benjamin Beal, all accounts relating to the matters in dispute as aforesaid ; which settlement appears by the annexed accompt and vouchers, and which we humbly submit to the approbation of your excellency." After which the account referred to is entered at large, and then follows this decree. 14th Febi-uary, 1764. — Sharpe, Chancellor. — It appearing to this court by the report made by John Stevenson, Bryan Philpot, and Lancelot Jacques, three of the four commissioners who, or three or two of whom were appointed to state, audite, settle, and adjust all accounts relating to the matters in dispute, that there is due to the said complainant Caleb Dorsey, six hundred and ninety-nine pounds ten shillings and four pence half-penny sterling, from the said defendant Henrietta Maria Dulany, as administratrix aibresaid, after deducting and discounting tlie bond and two promissory notes in the said defendant's answer mentioned, to wit, the bond of the said complainant to the aforesaid Edward Dorsey, dated the twenty-first day of February seventeen hundred and fifty-seven, conditionedfor the payment of one hun- dred and fii'tj'-six pounds nine shillings and eleven pence halfpenny, current money, at or upon tlie first day of April then next with legal interest, and the complainant's promissory notes to the said Edward Dorsey, one dated the fifteenth day of September seventeen hundred and fifty-seven, for sixty-two pounds two shillings and four pence sterling with legal interest, and the other dated the tenth day of October seventeen hundred luid fifty-nine, for two hundred and fifty pounds and eleven shillings sterling with legal interest. Whereupon this court doth think fit, and accordingly doth order and decree, that the said defendant Henrietta Maria Dulany, out of the goods, chattels, rights and credits which were of the aforesaid Edward Dorsey deceased at the time of his death, in her hands remaining to be administered, pay to the aforesaid Caleb Dorsey the said balance of six hundred and ninety-nine pounds, ten shillings and four pence half-penny sterling, and also that she deliver up to the said Caleb Dorsey, the said men- tioned bond and two promissory notes to be by him cancelled, destroyed or otherwise disposed of as he shall think fit.— C/ta/i. Proc. Lib. D. D. No. J. 315. (6) 1785, ch. 72, s. 17. DORSE Y V. HAMMOND. 4(57 of the court. He is stationed near to the Chancellor, and, when any calculations or statements are wanted, all the pleadino^s, exhi- bits and proofs are put into his hands, so as to enable him fully to investigate, and put the M-hole matter in proper order as required. As an incident to every reference of a case to the auditor, he is thereby virtually, if not expressly, as under a commission to audit accounts, authorized to take any testimony deemed requisite in relation to any account which may be necessary or which the par- ties may desire to be stated by him.(f) But, if it be necessary to collect proof from a distance, the parties may either have a regular commission, or be allowed, by a common order, to have it taken any wdiere within the State, before any justice of the peace, on giving notice to the opposite party. All the materials, from which the auditor makes his calculations and statements preparatory to a final adjudication upon the matters in controversy, are thus, by various, cheap, and contemporaneous movements, brought together at one place, and before an officer conversant wuth the rules and prin- ciples by which the case is to be decided, by a court constantly stationary and always accessible. With such facilities, where the parties are themselves diligent, there can be no unreasonable delay, nor any difficulty, but what arises out of the peculiar ambiguity of the proofs, or the real complexity of the case. The costs of the court are no more, in any case, than a just com- pensation for the labour required. The auditor's fees are consid- ered as a part of the costs ; and, as such, are always included in every general award of .costs against a plaintiff or defendant; and the ■ payment of them may be enforced, against the party properly chargeable, in the first instance, in the same summary manner as any other costs. ((^) But in some cases it becomes a matter of doubt who is properly chargeable, in the first instance, with the auditor's fees. The law declares, that they are to be "paid by the party dmrino" such account to be stated." Upon which it has been held, that in all cases where an account is necessary in any manner to ascertain the claim of a party, he alone is chargeable, although he may not have specially desired the account ; and in all other cases, where a party particularly instructs the auditor to state an account in a certain way, he alone is chargeable, upon the ground of its having been specially desired (c) Prac. Reg. 309.— (rf) Denny v. Wallace & Davidson, MS. 1S06; Farrow v. White, 1 Jac. & Walk. 623. 468 DORSEY V. HAMMOND. by him.(fZ) The auditor is allowed by law $4 67 per day for every day he shall reasonably be employed in stating any account ; •which, by long established usage, has been construed to mean an allowance of that fee for every account, however short it may be. In this case the auditor has already stated two accounts, for each of which he has been allowed that fee ; but in the most difficult cases, and where a statement and distribution are required to be made, among a great multitude of claimants, his fees have rarely altogether exceeded one hundred dollars in any one case. Under a creditors' bill it is a rule, that all costs, including the expenses of the sale ; the survey, if any be ordered, or required, either to lay off the land into lots, as in this instance, or to ascertain the quantity sold, where the estate has been sold by the acre ; and all taxes, are to be first paid from the proceeds of sale ; and the balance only rateably distributed among the credi- tors, who are, in that way, made to contribute in due proportion to defray the expense of the suit.(e) Yet, according to the course of the court, any other creditors may be allowed to come in, at any time, before a final account has been stated and ratified, and before the court has actually parted vrith the fund ; but if, in order to give them a dividend, after the auditor has made his report, it is neces- sary to re-state the account ; as it is made for their benefit exclu- sively, the costs of the re-statement are deducted from the divi- dends allotted to them as the terms upon which alone they can be allowed to come in and participate. (/") But this rule applies only where the proceeds of sale are insufficient to pay all, as in this instance ; for if there be a surplus, there can be no reason why it should not be applied, as against the heirs or devisees, in full satisfaction of the principal, interest and costs of a just debt, to which they can make no well grounded objection. (^) {(l) Denny i'. Norwood, ]MS. 1806 ; Denny v. Wallace St Davidson, MS. 1806. (e) Hare v. Rose, 2 Ves. 558 ; Shoitley v. Selby, 5 Mad. 447 ; Bluett v. Jessop, Jac. Rep. 243.— (/) 2 Fow. Ex. Pra. 279, 254; Angell v. Pladdon, 1 Mad. Rep. 528. (g) Bromley i'. Goodere, 1 Atk. 75 ; Butcher v. Churchill, 14 Ves. 573 ; Ex parte Mills, 2 Ves. jun. 295 ; Ex parte Hankey, 3 Bro. C C. 504 ; Ex parte Decy, 2 Ball & B. 77 ; Tyson v. Hollingsworth, MS. 12th July 1808. Low V. Conner. — ^This was a creditors' petition, filed 22d Februarj- 1790, pray- ing, that the lands of James Conner might be sold to pay his debts, for which his personal estate was insufficient. 1st September, 1791, decree for a sale in the usual form. Sale made and reported. 4th March 1792, ordered, that the return of Joshua Townshend, trustee for the sale of the real estate of James Conner, this day made be approved ; and that his proceedings and the sale by him made be approved, ratified and confirmed, unless cause to the contrary be shewn on or before the fourth day of DORSE Y V. HAMMOND. 459 The objections urged against this report indicate an opinion of the solicitor, that the auditor had some how stepped beyond his proper sphere in making it as he has done. No officer should allow himself to deviate from the line of duty marked out for him by law. The auditor is properly a mere ministerial officer of the court. It is true, that he may legally administer an oath to a witness and take his testimony in relation to an account desired to be stated ; (A) yet he has no judicial power; nor can the legis- lature constitutionally confer any portion of the Chancellor's judi- cial power upon him. He is not in any sense an arbitrator ; nor is his report, under any circumstances, considered as obligatory on the parties, unless confirmed by the court. When a case is referred to arbitrators, the court divests itself of all judgment, and the arbitrators are constituted judges of the fact without appeal; on a reference to the auditor it is otherwise, — he is only to pre- pare the case as a minister for the Chancellor who is really the judge. (z) Nor can the auditor be allowed to act, in any manner, as a prjing, pragmatical agent, hunting up and col- lecting the means of making or sustaining any claim, or objec- tion in relation to the matter in controversy. It is his duty to confine himself strictly to that which appears upon the face of the proceedings and proofs, and to abstain from suggest- ing any objection, prejudicial to any party, which the court, in its regular course, would not, of itself, notice and sustain, if founded in fact. It is his duty to examine and digest accounts ; to prepare the May next. lOth December 1792 ; no cause having been shewn the sale was abso- lutely ratified. ll//t December, 1792. — Ha.vson, Chancellor. — Each of the creditors of James Conner deceased, mentioned in the report of the auditor, is entitled, not only to the sum set down opposite to his name out of the principal money due, or paid by the purchasers of Conner's real estate, but likewise to his just proportion, or dividend of the interest paid, or to be paid on the sum of £ 112 19s. IJci, which appears, from the said report, to be the net product of the sale. The decree directs the money arising from the sale to be brought into court. But if the trustee shall pay to each of the creditors aforesaid, that which he is entitled to, and take his receipt in full, he will probably run no risk of being sued on his bond. For illustration. N. Latcham appears, from the report aforesaid, entitled to the sum of £6 5s. Id. out of the sum of £112 19s. lid. He is likewise entitled to his dividend of the interest, which the trustee shall receive on the said £112 19s. IJrf. Suppose two years interest to be paid on the said £112 19s. lid. This will be about £1.3 lis. Od. Then as =£112 19s. l^d. is to £13 lis. Od. so is the sum of £6 5s. Id. to the additional sum which the said Latcham will be entitled to. So of the rest. (h) Moore v. Aylet, 2 Dick. 641.— (i) Field v. Holland, 6 Cran. 21 ; Dick v. Milligan, 2 Ves. jun. 24. 470 DORSE\ V. HAMMOND. materials on which a decree or final disposition of the case may be made ; and to report the result of his examinations, subject to all exceptions of the parties, and to the further order of the Chancel- lor. On a consideration of this case it does not appear, that the auditor has in any respect departed from the proper line of his duty.(i) According to the long established practice in creditors' suits it has been most usual, and particularly so of late years, to order the case to the auditor, or rather for the trustee or a party interested to take it to him, after the time allowed to other cre- ditors to exhibit their claims has elapsed, and have an account stated and reported. It is true, that the court may be called upon, in the first instance, to decide upon all or any one of the claims, which have been exhibited. This course is now, how- ever, rarely or never taken, unless when there is supposed to exist some very unusual difficulty. When the case goes to the auditor, without any previous instructions from the court, he admits into his account every claim that has been filed and properly authenticated, with all others which there is any plausible reason to believe may be, in any way, sustained by proof and allowed, (/c) In making distribution of the proceeds of a deceased debtor's real estate among his creditors, this court is directed by an act of assembly, (/) (which in this respect is not at all affected by the tes- tamentary system,) (m) to pay away the proceeds of the realty in the same order , that is to be observed by an executor or administrator in making payments out of the personalty. It has always been the practice in this court to require all claims to be proved before they are allowed either for the whole or admitted to a dividend, in the same manner as they would be required to be authenticated in order to be passed by an Orphans Court ; and therefore no claim, coming in under a creditors' bill, will be passed or allowed, which could not, according to law, be passed and allowed against the personal estate by an Orphans Court. This was the practice long before the passage of the general testamen- tary act ;(w) and has continued to be so ever since. It has also been always a settled rule of this court, and is one which has been affirmed by the Court of Appeals, that a judgment against an executor or administrator is of no avail against the U) Le Sage v. Coussmaker, 1 Esp. Rep. 187 ; Field v. Holland, 6 Cran. 21. {k) Field V. Holland, 6 Cran. 26.— (Z) 1785, ch. 80, s. 7.— (m) 1798, ch. 101.— (n) 1798, ch. 101. DORSEY V. HAMMOND. 472 heirs of the deceased debtor ; not even so far as to prevent the operation of the statute of limitations. (o) Therefore these judg- ments which have been obtained against the executor, cannot relieve these creditors from the necessity of producing the usual proofs of their claims. Their original causes of action, as they stood before these judgments were rendered, must be proved as against these heirs precisely as if no such judgments had ever been obtained. And generally in other respects all claims must appear upon the face of them, prima facie, to be just and fair ; and to have obtained or had assured to them, at the instance of the creditor, payment from no other person or fund. Unless a claim is thus authenticated, and upon the face of it clear, it will not be allowed, even although no objection should be made to it by any one interested. And con- sequently it has always been considered to be the duty of the auditor to notice, in his report, all objections of this description. The auditor has no right certainly to moot cases to the court ; or to make any objections, such as the statute of limitations, or the like, which can only come with propriety from a party interested, and which, therefore, if made by the auditor alone, will be disregarded. But, notwithstanding a claim may have been formally vouched and reported as clear of all apparent objections, yet any party interested, a defendant or a co-creditor, may deny its existence and oppose its allowance altogether, in which case it must be regularly and legally established, as upon an issue joined in a court of law. It has been found in practice, that there are several important advantages in sending the case at once to the auditor, and having an account stated. The claimants are immediately apprised of what is wanted, if any thing, to sustain their claims : those against which there is no objection may obtain satisfaction, or at least a dividend without further delay. The heirs and each creditor are informed of the nature of the distribution proposed to be made. Each claim is presented in a clear and distinct point of view. The debatable ground is designated, its extent reduced, and the pro- gress of the cause accelerated. The objection, that these claims No. 3, 4, and 5, are each of them founded on such a judgment against the executor as carries in itself conclusive evidence of a sufficiency of personal assets to (0) Hanvood i-. Rawlings. 4 H. &, J. 126 ; Duvall i\ Green, 4 II. Si J. 270 ; Mason V. Peter, 1 Mun. 437. 472 DORSEY V. HAMMOKD. satisfy them^ goes to their merits, and unless clearly obviated, they must be rejected. These claimants do not allege, that it will be in their power to remove this objection, by any means whatever, but rest their case entirely upon the fact of its having no foundation in equity. It is certain, that an absolute judgment, obtained without mistake or fraud, is conclusive evidence of a sufficiency of assets in the hands of the executor to satisfy such judgment.(jo) The admission of the defendants in this case of the insufficiency of the personal estate was made with reference to none other than the claim of the originally suing creditor by whom it was called for. Now it may be perfectly true, that the executor has actually reserved assets to pay claims No. 3, 4, and 5 ; and, yet no less true, that he has nothing left to meet the claim of this plaintiff. There is then nothing in this objection of the auditor incompat- ible with the previous proceedings or acts of the court ; or which, as has been urged, militates against the decree w^hich was grounded upon an alleged and admitted insufficiency of personal estate to satisfy the claim of the plaintiff; for these claims No. 3, 4, and 5, were not then before the court. But it is said to be an established principle of this court, that where it appears, upon the face of the voucher, that the creditor m.ay or can obtain payment, by pursuing another and more proper person or fund, he shall not be permitted to come here, and partake of the realty to the prejudice of the heir or of other creditors. It is upon this ground, that an obligee is turned aside to seek payment of the whole or a proportion from a principal, or a co-surety who is sol- vent. These creditors have established their claims as against the personalty, or natural fund, of the sufficiency of which to satisfy them, their judgments afford conclusive evidence. If they now leave it and obtain satisfaction from the realty, what is to become of the amount of personalty which their judgments prove to exist in the hands of the executors ? Is the executor to be suffered to retain it, or is the heir to be allowed, upon the principle of substitution, to obtain it ? But the demand of a creditor upon the heir is always and must necessarily be founded upon the fact, that the personalty is not sufficient to satisfy the claim. These considerations have con- vinced me, that the auditor's objection is correct, and that these (p) Whcally v. Lane, 1 Sauiid. 219 n. S; Skelton v. Havvling, 1 Wils. 258; Suf- folk V. Harding, 3 Rep. Chan, 8S ; Ramsden v. Jackson, 1 Atk. 292 ; Greerside v. Benson, 3 Atk. 248 ; Robinson v. Bell, 2 Vern. 146; Ruggles v. Slierinan, 14 John. 446 ; Giles v. Peri-yman, 1 H. & G. 1G8 ; Gaither v. Welch, 3 G & J. 259. DORSEY V. HAMMOND. 473 claims No. 3, 4. and 5, ought not to be allowed to partake of the proceeds of the realty. Whereupon it is ordered, that the said claims, designated by the auditor as No. 3, 4, and 5, be and the same are hereby rejected. And the auditor is directed to re-state the account accordingly. George Barber, whose claim had been stated as No. 3, and Charles Waters, whose claim had been stated as No. 4 and 5, filed their several petitions, on the 7di of July 1828, without oath, in which they alike state, that it was in their power to show, by evi- dence not now in the proceedings, that the personal estate of the deceased had been exhausted in the payment of other just debts ; that the executor was insolvent ; and that his sureties might be relieved in equity.' Whereupon they prayed, that they might be allowed to adduce further proof, and that the order of the 22d of March might be rescinded, &c. 8th July, 1828. — Blaxd, Chancellor. — These petitions do not allege, that there is any error apparent upon the face of the deci- sion of the court ; nor do they set forth and aver, that the petition- ers have discovered any new testimony, not known to them at the time the opinion of the court was delivered ; consequently, inde- pendently of the want of any affidavit to their petitions, they have laid no foundation for a bill of review, even if they had asked leave to file such a bill ; or this were a case in which such a form of proceeding, or something equivalent to it, would be proper. Nor is it stated in these petitions, that there has been any mistake, oversight, or misapprehension in the judgment pronounced ; there- fore there is no ground for a re-hearing. But these claimants, after having had a formal hearing of their case, upon all such facts and circumstances as they then deemed pertinent or necessary ; and, after having submitted it for a deci- sion ; and, after their claims had been rejected, upon the ground of that very objection of which they had full and timely notice, now ask to have the order so passed, rescinded for the purpose of allowing them to introduce other proofs, not now in the proceed- ings, to remove those objections, and in fact to give to their case an entirely different comj)lexion. If such a course could be tolerated, under any circumstances, there would be no stability in any decision whatever ; for, there is no case in which the parties might not have some pretext for intro- ducing additional proof, of one kind or other, to vary the case in 60 474 FENWICK V. LAUGHLIN. some way, after the reasons and grounds of the judgment of the court had been fulty explained and made known. Instead of the parties being obliged to bring all the facts and circumstances of their case at once before the court, they would be continually tempted to w'ithhold some particulars, expressly with a view to have it reconsidered and amended in those points where they saw, from the opinion of the court, that the law pressed most against them. Such a course of proceeding would open a door to the greatest frauds, and could not but be attended with the most grievous expense and delay. Therefore as these claims have been adjudicated upon, in the manner and upon the grounds on w^hich they had been advisedly and deliberately presented for decision, I deem it improper now to suffer them to be again brought before the court in a new shape, on different principles, and other proofs. Whereupon it is ordered, that these petitions be and the same are hereby dismissed with costs. From this order as well as that of the 22d of March there was an appeal, and on the 6th December 1831 the appeals were dis- missed with costs. FENWICK V. LAUGHLIN. Where, on a bill by a mortgagee against the heirs of a deceased mortgagor, the mort- gaged estate had been sold to pay the mortgage debt, leaving a surplus ; other creditors of the deceased were allowed to come in, on the ground of the insufficiency of the deceased's personal estate ; considering the surphis as a residuum of tlie real assets wliicli had been taken fiom tlie hands of the heirs ; and to have the case thenceforth considered and treated as a creditors' suit. This bill was filed, on the 20th of April, 1827, by Martin Fen- wick and Francis Bird, against William Lauglilin and Jonathan Hawkvtis, to foreclose a mortgage of real estate given by the late Jonathan JV. Laughlin, the ancestor of the defendants, to the plain- tiffs. The defendants put in their answers, admitting the facts as stated in the bill ; upon which, on the 22d of May, 1827, it was decreed, that the mortgaged property be sold. And the trustee having reported, that he had made a sale accordingly, it was ordered as usual, that the sale be ratified unless cause be shewn. And no cause being shewn, the sale was finally ratified on the 9tb of July 1828. FEPTWICK 1-. LAUGHLIN. 475 On the 13th of March 1828, Isaac Owens, Benjamin Wells, and Martin Fenwick, on behalf of themselves and the other creditors of the late Jonathan JV. Laughlin, filed their petition in this case, in which they stated, that the deceased was indebted to Gicens in the sum of $95 60 ; to Wells in the sum of $55 84, and to Fen- wick in the sum of $45 50. That the personal estate of the deceased was totally insufficient to pay his debts ; and that the proceeds of the sale of his mortgaged real estate, sold under the decree in this case, was more than sufficient for the payment of the mortgage debt. Whereupon they prayed, that they, with the other creditors of the deceased, might be paid out of this surplus, &c. 14:tk March, 1828. — Bland, Chancellor. — Where a bill has been filed against the heirs of a deceased mortgagor to obtain payment by a sale of the mortgaged property ;(a) or where a bill has been filed to obtain a partition of an intestate's real estate among his heirs ;(6) or where a deceased debtor's real estate has been {a) O'Brian v. Bennett, ante, S6 ; Latimer v. Hanson, ante, 51. (6) Spurrier v. Spcrrier. — This petition, filed on the 21st of September 1810, states, that the late John Spurrier died intestate seized of a valuable real estate, which would not admit of division among his widow and children, some of whom were manied and others infants, who are his heirs ; all of whom are parties to this suit. Prayer, that the real estate may be sold and the. proceeds divided. The answers admit these facts. "Wliereupon it was, on the 15th of March 1811, decreed, in the usual form, that the lands be sold, and they were sold accordingly. After which Henrj- McCoy by petition stated, that the late John Spurrier was considerably indebted to him ; that his real estate had been thus sold ; and that his personal estate was insufficient to pay his debts. Prayer, that an order may pass notifying the creditors to exhibit their claims ; and that his claim may be paid, &cc. \Sth September, 1811. — Kilty, Chancellor. — The trustee, for the sale of the real estate of John Spurrier deceased, is desired to give notice to the creditors to exhibit their claims in the chancery office before the first day of December next, by adver- tisement inserted three weeks in the American. Henry McCoj- by another petition stated, that his claim had been passed by the audi- tor and the Orphans Court ; that the sales amounted to upwards of $-20,000, and the claims to not more than about $11,000 ; that he was tenant to the purchaser, at the annual rent of .51450 ; and he therefore prayed that his claim might be discounted through the purchaser his landlord. 22d March, 1812. — Kilty, Chancellor. — The Chancellor cannot direct the pa)-- raent or discount of anj- claim before the ratification of the sale ; and in order to ite being made it is necessary- to prove the publication of the conditional order of rati- fication passed September 9th ISll, which may be done by the certificate of the printer or the production of the newspapers. It is necessary- also to pioduce the fike proof of the publication of the order of September ISth 1811, on the petition of Henry McCoy for the creditors to exhibit their claims. Archibald Dorsey by petition stated, that he was a creditor of the deceased, and 47(i FENWICK V. LAUGHLIN. decreed to be sold in any other manner than by a creditors' bill : any creditor of such deceased person may be permitted to come that his claim had been objected to, whereupon he prayed, that he might be heard on a day to be appointed. 25th May, 1812. — Kilty, Chancellor. — On the above application the following order is passed, which tlie register is desired to hare published this week in the Maryland Republican: — In Chancery, May 25th, 1812. Ordered, that the claims against ttie real estate of John Spurrier deceased, to which exceptions have been filed, will be decided on, on the 1st day of June next. The auditor reported, that he had in obedience to the ord«r of the Chancellor stated an account of the claims against the estate of the deceased. •22d July 1812. — Kilty, Chancellor. — Ordered, that the statement of the claims as reported by the auditor be confirmed. The commissions are not yet fixed, and therefore the usual account with the trustee cannot be stated. But the trustee is authorized and directed to settle with the said claimants by payment when the pro- ceeds of the sales are received, or by discount, or assignment, if agreed to by any of them • the amount of the sales being more than tliat of the claims, and leaving a sufficiency for the commissions and costs and the claims which are suspended. Roderick Warfield by petition, filed 30th September 1312, stated, that in the lifetime of the intestate he had married Henrietta one of his daughters ; that the trustee, on the 22d day of June 1811, sold the greater part of the real estate of the intestate; and on the 14th day of November 1811 sold the residue; that the whole purchase money was, or would shortly be in possession of the trustee ; that his wife Henrietta died on the 9th day of July 1811, after having had a child born alive during the mamage ; that the trustee refuses to pay to him his proportion of the estate to which his wife was entitled. Pra5'er to take testimony to substan- tiate tliese facts ; that the trustee be ordered to pay over to him such proportion as he is entitled to receive of the jiroceeds of the real estate ; and for such other relief, &.c. \st October, 1812. — Kilty, Chancellor. — On the above application it is ordered, that depositions in Ann Arundel county, taken on three days' notice to the trustee or to the petitioner, be received in evidence on the hearing. Anne Spurrier by petition stated, that she was the widow of the intestate ; that there was a large surplus to be disbibuted among the heirs of the deceased, four of w^hom are minors, who reside with her, as their mother and natural guaidian ; that she is unable to maintain them ; and is willing to give bond, as guardian, for any share which may be ordered to be paid to her for them. Prayer that the surplus may be distributed ; and that the sliares of the minors be paid to her. 28/^ January, IS 13. — Kilty, Chancellor. — On the application of the heirs for a distribution of the proceeds, it is ordered, that the claims be reported by the auditor on the 10th day of March next on the proof then exhibited, for the final decision of the court, when the petition of Roderick Warfield will also be acted on. A copy of this order to be inserted three weeks in the Maryland Republican. On the 10th March 1813, the auditor reported, that at the request of the trustee, and in obedience to the Chancellor's order of the 28th January 1S13, he had stated all the claims exhibited since the last report of the late auditor. And among other things he says, " The claim No. 37 appears to be a judgment in favour of Thomaa FENWICK V. LAUGHLIN. 477 in by petition, and have his claim allowed and paid out of the whole or the surplus of the proceeds of the realty of the deceased Gumming on the joint and several bond of the deceased and one John Gumming, and at the request of the trustee the auditor has stated, as part of the claim, the costs of the deceased as defendant as well as the plaintifi''s costs, the whole amount as stated having been paid by the said trustee ; and the said whole amount so stated is admitted in writing to be a just claim against the deceased's estate by his eldest son, who admits also that the other obligor John Gumming is insolvent. The said claim is moreover accompanied by a certificate of John Purviance esq'r, as counsel for the plaintiff, that no part thereof has been received, except what is credited. No authentic certificate, however, is produced of the said John Cumming's discharge under the insolvent law ; supposing him to be the principal in the bond on which the judgment was rendered. No proof that the said John Gumming was security onl3\ And no affidavit, that the said judgment has been fully discharged. IZth March, 1813. — Kilty, Chancellor. — Gonsidering the report and statements by the auditor and the evidence adduced, it is ordered, that all the claims, as stated, be allowed ; except the last, being the claim of T. Watkins, which is rejected. The auditor, in stating the account with the trustee, will allot a share to Roderick War- field, which will be subject to the order of the Ghancellor on a further consideration of his petition, and the arguments in writing urged against it. After which the case was again submitted, at the instance of the widow to obtain a portion of the proceeds of sale in lieu of dower. 14/A September, 1813. — Kilty, Chancellor. — The widow Ann Spurrier is allowed, (her age being proved) one eighth part of the net proceeds of the land sold to G. Calvert and also of the small tract sold to William G. Spurrier. The claim No. 25 having been paid, according to the former order before that of May 26th 1S13, is con- firmed. . The claim No. 24 is rejected. A distribution of the balance to be made as follows : — The same to be divided into eight parts, one of wliich is to be reserved for the decision of the claim of Roderick Warfield. The amount of the other seven parts to be equaJly divided between John and Ann Gumming, William G. Spurrier, John Spurrier, Eliza Spurrier, Richard Spurrier, and Horace Spurrier, Lewis being stated to have died since the sale, and since the death of Henrietta Warfield. The payment of the shares of John Spurrier, Eliza Spurrier, Richard Spurrier, and Horace Spurrier, who are minors, to be made to their mother Ann Spurrier the petitioner, on the approval by the Ghancellor of a bond to be filed by her with two stifficient sureties with condition similar to that in guardians' bonds, but reciting the sale, 8cc. under the decree of this court; and not before. Interest to be paid on the shares in proportion as it has been, or may be received. The petition of Roderick Warfield will be taken up this month on the application of either party. Proofs having been collected under the order of the 1st of October 1S12, to estab- lish the facts set forth in the petition ; it appears by the notes of Mr. A. G. Magruder, submitted in opposition to the prayer of this petition, that he insisted, that the hus- band could at most be considered only as a tenant by the courtesy ; especially for that part which had been sold after the death of the wife ; that, even if it were to be considered as her money, yet it was a mere equitable title which the husband could not reduce into possession without making a proper settlement. (1 Vcs. 538, 3 P. Will. 13.) But, that, in this case, the proceeds must be regarded as land, and pass as the real estate would have passed had the sales not been made ; and it had been so held, after much consideration, by the county court of Prince George's iii 478 FENWICK V. LAUGHLIN. so far as they will go ; considering the surplus as a residuum of the real assets which had been taken from the hands of the heirs. But such petitioning creditor will be required to establish his claim ; to show, by the usual proofs or admissions of the party, the insufficiency of the personal estate of the deceased to pay his debts ; to notify his heirs, that they may have an opportu- nity of contesting the allegations of the petitioner, and the justice of his claim or that of any other creditor who may afterwards come in, as is allowed on a creditors' bill, by merely filing the voucher of his claim ; and also, he or the trustee to give notice in the usual way, to the creditors to bring in their claims. Whereupon it is ordered, that the surplus of the ptoceeds of the sale of the said mortgaged estate be applied to the satisfaction of the debts of the said Jonathan JV. Langhlin deceased, unless good cause be shewn to the contrary on the second day of June next. Provided a copy of this order, together with a copy of the said petition, be served on the said defendants on or before the 12th day of April next. And it is further ordered, that the said trustee, by publication to be inserted in some newspaper, twice a week for three 'successive weeks before the twelfth day of April next, give notice to the creditors of the said late Jonathan Jf. Langhlin to file the vouchers of their claims in the chancery office, on or before the second day of June next. After which, upon the usual proof and certificate that notice had been given, and publication made as required by this order, the matter was submitted. 9th July ^ 1828. — Bland, Chancellor. — Ordered, \h^i the matter of the said petition be, and the same is hereby taken pro confesso ; no cause having been shewn, although notice has been given as .1 similar case ; and the husband was required to give good security, (consider- ing him as tenant by the courtesy,) that her children should have the money after his death. 29//t November, 1813. — Kilty, Chancellor. — On the within petition notes have been filed by the counsel on behalf of the heirs, and it has been submitted on the part of the petitioner. The original bill or petition appears to have been filed under the 12th section of the act of 1785, ch. 72, the intention of which appears to have been to turn the land into money for the purpose of division. "VVliich sale the court is not bound to order unless for the interest and advantage of all parties. And the practice has been, as fiir as the Chancellor has been informed, to divide the proceeds as personal estate. And the acts respecting widows entitled to dower, and tenants by the courtesy, are in the same spirit. It is therefore, ordered, that the part allotted by the auditor to Roderick Warfield the petitioner, and hitherto reserved, be paid to bim in the manner directed as to the otliers. {Jones v. Jones, ante, 443.) FORNSHILL v. MURRAY. 479 ordered. And it is further ordered, that this case be and the same is hereby referred to the auditor with directions to state an account accordingly. In obedience to this order the auditor reported a distribution of the surplus of the proceeds among twelve of the creditors of the deceased, nine of whom had come in under the order of the 14th of March ; which distribution of the auditor was confirmed, and the trustee directed to apply the proceeds accordingly, on the SSth of August 1828, and the whole case so finally closed. FORNSHILL v. MURRAY. The contract of marriage is the parent, not the child of civil societj'. If valid where celebrated, it is valid every where. It cannot be cast off at the pleasure of the parties. It must here be solemnized in the face of a church or with the blessing of a clergyman. General reputation, or proof of cohabitation as husband and wife, is, in general, sufficient evidence of a contract of mairiage. The county courts may inquire into the validity of certain marriages. The Court of Chancery may award alimony ; and it may also declare a marriage to be void which has been procured by abduction, terror, and fraud. No judicial proceeding can be had after the death of either party for the purpose of having their marriage declared void, or of bastardizing any one after his death. But where the validity of an alleged marriage, or the legitimacy of any one forms a necessary link in the chain of title to the property in question, there such validity or legitimacy may be inquired into and determined, either by a court of law, or of equity.- It is not indispensably necessary in any case to make up an issue to have the facts ascertained by a jury. This bill was filed on the 31st of January 1827, by John Fonishill and jinn his wife, Alexander M. Williams and Sarah his wife, Andrew Fulton, and William Fulton an infant by Andrew his next friend, against William V. Murray surviving administrator de bonis non of Henry Somervell, and William Hubbard administrator of Thomas Somervell. The bill states, that Mary, the sister of Henry, by her first mar- riage with Andrew Davidson had issue the plaintiffs Ann and Sarah, and by her second marriage with William Fulton had issue the plaintiffs Andrew and William ; that she died leaving these four children ; that, some time after her death, Henry died intestate without leaving a widow or any children, or the descendant of any 4S0 FORNSHILL v. MURRAY. children ; that he left a large personal estate, upon which letters of administration were granted to James Chapline, who died soon after, upon which administration de bonis non was granted to Thomas Lookerman and the defendant Murray, soon after which Lookerraan died ; that some time after the death of the intestate Henry, his brother Thomas died intestate, and letters of administra- tion upon his estate were granted to the defendant Hubbard ; and tliat the intestate Henry left no other next of kin at the time of his death, than the plaintiffs, and his brother Thomas ; whereupon the plaintiffs prayed, that the defendant Murray might be decreed to account, and to pay to them their distributive shares of their late uncle Henry SomerveWs estnie, &.c. To this bill the defendants put in a joint and separate answer, in which they admitted that Mary, the mother of the plaintiffs, had issue and died as stated ; that the intestate Henry left a considera- ble personal estate ; and also that their intestates died, and admin- istration had been granted as set forth. But they alleged, that the intestate Henry left other next of kin beside those mentioned in the bill, and that Mary the mother of the plaintiffs, who was a sister of the half-blood of the intestate Henry, had been first lawfully married in Ireland about the year 1789, to John Lewis, w^ho was still alive and had always resided there ; and that she, after having cohabited with him for some time as his wife, lefl him about the year 1792 and came to Maryland, where she continually resided until her death, leaving her lawful husband John Lewis then and still living. Whereupon the defendants averred, that the alleged subsequent marriages of Mary with Davidson and w'ith Fulton were utterly void ; and that the plaintiffs, Ann, Sarah, Andrew, and William, were illegitimate ; and, as such, absolutely incompetent legally to demand any thing as the next of kin of Henry Somervell. A commission wms issued to Ireland, and the depositions of several witnesses were taken and returned ; from which it appeared, by the testimony of two witnesses who were present at the marriage ceremony, that Mary, the sister of the intestate Henry, had been married to John Lewis, who was then living ; and that they had afterwards cohabited, as husband and wife, for about two years ; w^hen she left him, and, as they had always understood, went from Ireland to America. The testimony of these two witnesses was corroborated by that of others, who declared, that they knew the intestate Henryh sister Mary and John Lewis to have lived together some time, as husband and wife ; and that they were so FORNSHILL v. MURRAY. 481 reputed to be in the neighbourhood in which they lived ; and that Mary left her husband John Lewis and migrated to America about the year 1792, where, as they had heard, she had continually resided until her death ; and that John Lewis does now, and always has resided in Ireland. In addition to which the deposition of an attorney was taken, who testified, that such a marriage, as that described by the other witnesses, was valid according to the law of Ireland ; and, that he had known such marriages to be held valid in the courts of justice there. 12th July, 1828. — Bland, Chancellor. — This case standing ready for hearing, and having been submitted without argument, the proceedings w^ere read and considered. Marriao-e has been considered amons^ all nations as the most important contract into which individuals can enter, as the parent not the child of civil society. (a) It would seem, that in the dark ages a notion prevailed of the mysterious nature of the contract of marriage, in which its spiritual nature almost entirely obliterated its civil character ; by which notion, some were carried so far as to say, that a marriage of an insane person could not be invalidated on that account. In more modern times, it has been considered in its proper light, as a civil contract, as well as a religious vow, and, like all civil contracts, will be invalidated by want of consent of capable persons. (6) It has been, most commonly, every where celebrated by some religious solemnities ; and, from its nature and objects, has been held to be obligatory during the joint lives of the parties, without the power of being thrown off at the pleasure of either or both of them ;(c) except perhaps in the single instance, according to the ancient and now obsolete law, where the husband or wife with the consent of the other, became a monk or nun pro- fessed, whereby the contract of marriage was virtually dissolved, (c?) According to the law of England, a contract of marriage is not deemed complete, so as to entitle the wife to dower, and the issue to inherit, unless it be celebrated in the face of the church, or with the blessing of a priest.(e) In Scotland no religious cere- mony is necessary to constitute a legal marriage ;{f) and in Eng- (o) Dalrj-mple r. Dalrymple, 2 Hag. Con. Rop. 54. — (6) Turner v. IVIeyers, 1 Hag. Con. Rop. 41 J ; Browning v. Reane, 2 Phill. Rep. 69 ; Shelf. Lun. 59, 446 , Portsmouth f. Portsmouth, 1 Hag. Rep. 3-55.— (c) Gordon f.'Pyc, Fergusson's Rep. Append, note A. 349 ; Westmealii v. Westmeath, 1 Jac. Rep. 138.— (rf) Co. Litt. 132. (c) Dalrympte !•. Dali-jmple, 2 Hag. Con. Rep. 54. — (/) Dalryraple r. DaJryiuple, 2 Hag. Con. Rep. 54. 61 482 FORNSHILL v. MURRAY. land, during the time of the Commonwealth, marriage was allowed to be contracted before a justice of the peace. (g-) Jn Maryland there was a time when marriage might have been legally contracted before a county court or in presence of a magistrate ;(A) but other provisions having been made upon the subject by the legislature of the Province,(i) and by the General Assembly of the State,(j) it would now seem to be certainly the most correct, if not the only legal mode of contracting marriage, here as in England, by having it celebrated in the face of some church, or with the blessing of a clergj'man. In general it is sufficient to show, that a man and woman have cohabited as husband and wife ; have represented themselves as such ; or have been reputed in the neighbourhood of their resi- dence to have been legally married, to establish the fact of their marriage and the legitimacy of their children. The only exceji- tions to this rule are the cases of a prosecution for bigamy, and an action of criminal conversation, in each of which, proof of an actual marriage is necessary. For although the action of crim. con. is, in its form, properly a civil action, yet it is in the nature of a criminal prosecution ; and if proof of cohabitation or reputation w^ere received as alone sufficient evidence of the marriage, it would place it in the power of the parties to collude together and pass themselves off as husband and wife occasionally for the express purpose of profiting by such a suit.(^■) But although, in such cases, the mere general reputation of a marriage may not be deemed sufficient, yet it appears, that the deliberate admission of the defendant in an action of crim. con., that the woman was the wife of the plaintiff; or the confession of the accused of the fact of the first marriage in a prosecution for bigamy, will even in those cases be received as sufficient to establish the fact ©f the marriage. (Z) In England the spiritual court has jurisdiction to inquire into the validity of a contract of marriage; and may, in certain cases, determine, that it is wholly void, or decree, that it be dissolved, and that the parties be divorced ; but in all cases not falling within tlie jurisdiction of the ecclesiastical courts the parliament alone can grant relief.(m) In Maryland, there never having been an ecclesiastical court, and no power to grant a divorce, by annul- (g) 4 Bac. Abr. 531, 536.— (A) 1702, ch. 1, s. 4 ; 1715, ch. 44, s. 25.— (i) 1717, ch. 15.— (7) Febiuaiy 1777, ch. 12.— (A.) Morris v. Miller, 4 Burr. 2057; B'lviv. Bailow, Doug. 171.— (0 Stark. Evi. 4 pt. 36 &. 1185.— (m) 4 Bac. Abr. 554. FORNSHILL r. MURRAY. 433 ling, for any cause, a contract of marriage whicL was originally valid, ever having been conferred upon any of the courts of jus- tice, it follows, that a divorce can only be granted by an act of the General Assembly. (?i) But all questions concerning alimony, even under the provincial government, were considered as having devolved upon the Court of Chancery. It was however provided, (0) that the general court should have power, on an indictment or by petition of either party, to inquire into the validity of any mar- riage, and might declare any marriage, contrary to the marriage act, or any second marriage, the first subsisting, null and void. This law, as it would seem, may now, since the abolition of the general court, on proper application, be executed by a county court. This court has been clothed with no such authority to determine tlie validity of a contract of marriage ; but, by virtue of its general jurisdiction in matters of fraud affecting contracts, it would seem, that, considering marriage as a mere civil contract, it may, at the instance of either party, declare a marriage to be null and void, which has been procured by abduction, terror and fraud, (p) In England, the validity of a marriage which is not absolutely void but merely voidable, can only be drawn in question and deter- mined, in a suit instituted for that purpose, in the ecclesiastical court. But, as by the death of the husband, or the wife, the mar- riage is at an end, so any then depending suit, which may have been instituted during their lives for that purpose, is thereby im- mediately abated, and cannot be, in any way, revived or further prosecuted ; nor can any other judicial proceeding be thereafter instituted, in the ecclesiastical courts or elsewhere, for the purpose of declaring a marriage, which has been thus terminated by the death of either party, to have been null and void, for the purpose of bastardizing the issue of such marriage, or barring the husband of his courtesy, or. the widow of her dower ; nor can any one, by any judicial proceeding be bastardized after his death, who had carried the reputation of legitimate during his life ; because wrongs, and personal defects die with the individual ; and the peace of families and the nature of the testimony by which alone pedio-rees are capable of being traced, in cases trhere a party makes title by (/i) Utterson v. Tewsh, Fergusson's Rep. 23 ; Mrs. Levett's Case, Ferg. Rep. appen. note G. 3S2. — (0) February 1777, ch. 12, 3. 15. — {p) Portsmouth v. Ports mouth, 1 Hag. Rep. 355 ; In matter of Fust, 1 Cox. 418 ; Ex parte Turing, 1 Ves. & Bea. 140 ; Ferlat v. Gojon, 1 Hopk. 478. 484 FORNSHILL v. MUKKAY. descent, require that there should be a limitation beyond which the institution of any judicial proceeding for the purpose of trying the validity of any marriage or the legitimacy of any person ought not to be allowed. (y) If these principles be correct, and as entirely applicable here, under different forms of judicial proceeding, as in England, it follows, that there can now, after the death of Mary, be no judicial proceeding had to declare her second and third mar- riages, with Davidson and with Fulton, void for the purpose of bastardizing her issue by either of them. But the issue oi Mary by her second and third maniages, which were absolutely void, not merely voidable, are here claiming as par- ties to this suit; and found their title to recover materially and essentially upon the validity of those marriages, and their own legiti- macy as the fruit of them. In all such cases, where a party claims as heir or next of kin, and his own legitimacy, or that of the deceased under whom he claims, is thus necessarily involved, and put in issue, it never has been questioned, that the court might inquire into and decide upon the validity of the marriage, or the fact of legitimacy. This has been often done in England, (?•) and has also been allow^ed by the courts of this state ;(s) because, wherever the validity of a marriage or the legitimacy of a party forms a com- ponent part of the matter in controversy, it becomes indispens- ably necessary, that the court should inquire into and deter- mine upon that fact, as well as every other part of the case ; for otherwise it would be to suppose a suit brought before a court, which had not a capacity to try the cause of action. (^) And upon that ground, although it is perfectly well settled, that the Court of Chancery has no criminal jurisdiction whatever, and is in its insti- tution and forms of procedure absolutely civil, yet if a bill be fded in it for the purpose of setting aside a deed or to be relieved against a will on the ground of fraud, the instrument complained of may be shewn to be a forgery : and the fact of forgery may, when thus incidentally involved, be determined and relief given, founded upon a criminal fact, although it w^ould be altogether improper for it directly io decide upon any such question upon a criminal charge, (if) {q) Co. Litt.3.3; 1 Hall. Const. Hist. Eng. 395; Kenn's case, 7 Co. 142; Hinks v. Harris, 4 Mod. 182 ; Hemming v. Price, 12 Mod. 432 ; Haydon v. Gould, 1 SaJk. 119; Brownsvvord v. Edwards, 2 Ves. 245 ; Elliott w* Gurr, 2 Phill. 16. — (r) Alleyne v. Grey, 2 Salk. 437; Mace v. Cadell, Cowp. 233; Stark. Evi. 4 pt. 218, 931.— (s) Chesel- dine v. Brewer, 1 H. k McH. 152 ; Ferlat v. Gojon, 1 Hop. 494.— (<) 1 Bac. Abr. 571. («) B;irnesly v. Powel, 1 Ves. 120, 287; Stace v. Mabbot, 2 Ves. .553; Duntze v. Levett, Fergusson's Rep. C3; Stark. Ev. 4 pt. 931 ; Peake v. Highiield, 1 Russ. 560. FORNSHILL i'. MURRAY. 485 It appears, that the first marriage of Mmy with John Lewis was legally had and solemnized in Ireland ; hence, according to the law of nations, it must be held to be a valid marriage here ; for otherwise the rights of mankind w^ould, in this respect, be in a most precarious and uncertain condition. (i') And consequently the subsequent marriages of Mary in Maryland with Davidson, and after his death with Fulton, while her husband John Lewis was alive, must be considered as utterly void. When a question of legitimacy becomes thus involved in a con- troversy in a court of chancery, it is said to be usual to make up an issue, and have the matter tried by a juiy who are the proper judges of fact.(i^) But it is not indispensably necessary, in any case, that the Chancellor should have any fact determined by a jury. It is only when he entertains a reasonable doubt as to the fact, and when it depends on evidence the weight of which can be better estimated by a jury, or where the testimony is very obscure and contradictory, if he thinks fit that the Chancellor, for the informa- tion of his own conscience, may have recourse to this auxiliary mode of obtaining it.(x) But in this case the proof is so clear and demonstrative, that there is not the smallest room for a doubt upon the subject; therefore I hold it to be my duty to pronounce an immediate decree. The proofs clearly establish the fact, that the late Mary, the mother of the plaintiffs, had been, long previously to their birth, legally married, and was then the lawful wife of a certain John Lewis, who at the time of the marriage, and continually ever since, has resided, and is now living in Ireland. And consequently these plaintiffs, who were all born in Marj^land many years after their mother came to and resided in this state, are all of them illegiti- mate ; and, as such, they cannot take as her legal representatives, or as the next of kin of the late Henry Somervell. The act of 1825, ch. 156, has no retrospective operation, and therefore cannot affect this case. Whereupon it is Decreed, that the bill of complaint be dismissed with costs to be taxed by the register. (v) Roach V. Garvan, 1 Yes. 159 ; Herbert v. Herbert, 3 Phill. 58 ; Duntze v. Levett, Ferg. Rep. 63 ; Edmonstone v. Lockhart, Ferg. Rep. 168; Butler v. P^orbes, Ferg. Rep. 209; Herbert v. Herbert, 2 Hag. Cons. Rep. 263; Ruding y. Smith, 2 Hag. Cons. Rep. 371.— (w) Revel r. Fox, 2 Ves. 270; Read v. Passer, 1 Esp. Rep. 213. {X) Short V. Lee, 2 Jac. &, Walk. 496 ; Peake v. Highfield, 1 Russ. 560. 486 EST:EP r. WATKINS. ESTEP V. WATKINS. A purchased of B a tract of land, the legal title to be conveyed when the purchase money was paid ; for which he gave his bond : after which B died, and his widow had her dower in the land. Held, that A was entitled to a deduction from his bond to the amount of the value of the widow's dower. When a case is set down for final hearing on hill and answer, without replication, all the facts set forth in the answer are taken to be true. Everj- decree stands for what it purports to be until regularly revised or reversed. The case, as set forth in the bill, must, at the final hearing, appear to be such an one as falls within the jurisdiction of a court of chancery. The assignee of a bond takes it subject to all equities, whether he has notice of them or not. This bill was filed on the 21st of December 1827, by Rezin Estep, against Rachel H. Watkins, Benjamin Waikins, and John Claytor. It is stated in the bill, that Charles D. Hodges, being seized of certain parcels of land, by his bond with a collateral condition, contracted, in consideration of the sum of $3,000 to convey them to this plaintiff, who to secure the payment of that amount as the purchase money, gave his bond to Hodges, who assigned it to Benjamin Hodges, who assigned it to JYicholas Watldns of Thomas, to whom this plaintiff made assignments of sundry bonds and notes which he Watkins received as payment of this plaintiff's bond ; that afterwards Charles D. Hodges died intestate, leaving a widow Elizabeth who was entitled to dower in the lands, and six children, Elizabeth the wife of John Randall, Mary Ann, Lucinda, Margaret, Ellen, and Charles, his heirs at law ; that the widow married this defendant Claytor; that this plaintiff on the 15th of Februar}' 1815, filed his bill in this court against this widow with her husband Claytor, and these heirs, with Benjamin Hodges and JYicholas Watkins of Thomas, to obtain a title to the lands he had so pur- chased, which bill the defendants thereto answered ; and the case having been submitted, it was on the 22d of May 1815 decreed, that this plaintiff should pay two-thirteenth parts of three thousand dollars to Johii Claytor and Elizabeth his wife in lieu of her dower in those lands ; and, on the payment, by this plaintiff, to JYicholas Watkins of Thomas, of the balance appearing to be due on this plaintiff's bond, after deducting the two-thirteenth parts allowed in lieu of dower, that the heirs of the late Charles D. Hodges should convey the lands to this plaintiff; that JSIcholas Watkins brought suit, in the name of the administrator of the late Charles D. Hodges, ESTEP V. WATKIXS. 437 on the bond so given by this plaintiff; and, in September 1817, recovered judgment for the whole amount thereof; that this plain- tiff paid to JMcholas Watkins the full amount due to him, after deducting the two-thirteenths awarded to Claytor and wife, which he also paid according to the terms of the decree ; that JMcholas Watkins is dead intestate, and administration on his estate had been granted to these defendants Rachel H. Watkins and Benjamin Watlcins, who have revived the judgment recovered by their intestate, to be released on the payment of $892 75 w'ith interest from the 2d of October 1827 and costs; upon. which they threat- ened to issue execution. V^hereupon the plaintiff prayed for an injunction to stay proceedings at law, &c. ; which was granted as prayed. The defendant Claytor by his answer admitted the allegations and facts set forth in the bill so far as he was concerned. The defendants Rachel H. Watlcins and Benjamin Watkins put in their joint answer, in which they also admitted the facts and cir- cumstances set forth in the bill. But they averred, " that the said bond was assigned to their intestate during the lifetime of the said Charles D. Hodges ; that their intestate paid the full amount due on the bond at the time of the assignment to him ; that he had no know- ledge of any deduction to be made therefrom in any event whatever : and these defendants do positively den}^, that their intestate received bonds or notes in payment of the aforesaid bond ; but they aver, that the bonds and notes which he did receive were received to be applied when collected towards the payment of the said bond ; and that their intestate did, after due diligence in the collection of the said bonds and notes, apply what had been so collected to the dimi- nution of the amount due on the bond, and credit was therefore given to the complainant. These defendants also aver, that the complainant's bill, mentioned in his present bill, to which their intes- tate w-as a defendant, was answered by him under a full belief and with an understanding by him and the complainant, that the said suit should not affect the interest of their intestate in the aforesaid bond, and should only operate to enable the complainant to obtain a con- veyance for the land he had purchased ; that their intestate relying on this understanding, and believing his interest was not to be damnified, employed no counsel nor made any defence, but suffered the counsel for the complainant to draw his answer, and the pro- ceedings to be as hastily determined as possible ; and that when the decree was passed in the said case, it was not considered as at 488 ESTEP V. WATKINS. all affecting the interests of their intestate, either by him or by the complainant. These defendants further aver, that long subsequent to the passage of the decree aforesaid, their intestate, wishing to close this transaction relative to the bond aforesaid, brought suit against the complainant ; that the complainant, aware of the understanding, previously here stated, and of his liability to their intestate, gave their intestate a judgment for the amount then due on the bond on his allowing all the credits which the complainant was then entitled to. These defendants also state, that at the April term of Ann Arun- del county court, their intestate, in order to recover the balance then due on the aforesaid bond, instituted proceedings to revive the judgment aforesaid against the complainant; and that in conse- quence of the death of their intestate pending the proceedings afore- said, these defendants appeared to the said suit, after which such proceedings were had, that at the October term of the said court for 1827, a judgment was obtained against the complainant in favour of the defendants for the amount then ascertained to be due. These defendants do positively deny that their intestate in receiving the sums of money in part payment of the bond aforesaid, ever did receive the same as a satisfaction thereof, or ever did admit that the bond was paid; but on the contrary always considered the com- plainant liable to him for the amount of the last aforesaid judg- ment ; and that the complainant himself ever did, until a short time before the judgment aforesaid was about to be jevived, consider himself, as these defendants believe, so liable to their intestate." Upon a motion to dissolve the injunction on the coming in of these answers, it was continued until the final hearing or further order. After which the case was set down for final hearing by the plaintiff on the bill and answers; and the solicitors of the parties were fully heard. 6th August, 1828. — Bland, Chancellor. — This case having been set down for hearing on the bill and answers alone, without any general replication, — the answers must therefore be taken to be true in every particular, as well as to the matters alleged by way of avoidance as to those directly responsive to the bill. That is, the defendants are to be allowed the benefit of exeryfact advanced by them as a defence in their answers, as fully as if it had been put in issue by the plaintiff's general replication, and the defendants had established it by proof.(a) (a) 3 Blac. Com. 448. ESTEP V. WATKIXS. 439 But these ridministrators rest their defence on the fact, that tliere was " an understanding by him, (their intestate,) and the comphiinant, that the said suit, (in which the decree of the 22d of May 18] 5, was passed,) should not affect the interest of their intestate in the aforesaid bond, and should only operate to enable the complainant to obtain a conveyance for the land he had purchased." In other words they admit, that the decree of the22d May 1815, as it stands_, is a sufficient basis for the plaintiff's equity ; but they attempt to circumscribe its operation by setting up a previous understanding or agreement of the parties to it, as to what was intended to be its extent and effect. But no decree can be thus collaterally affected or impeached. Every decree stands, and must be allowed to stand, for what it purports to be on its face, until it has been revised or reversed in a solemn and proper man- ner.(6) Therefore, rejecting this ground of the defence, as being utterly inadmissible, even supposing the fact of the alleged under- standing to be true, there is nothing in the answers which is at all at variance with the case presented by the bill. It is certainly true as urged by the defendants' solicitor, that even at the hearing, the plaintiff's case, as stated by himself, must be shewn to have in substance, or in some essential bearing of it, such a character as will confer jurisdiction on a court of chancery ; it must appear to be an equitable as contradistinguished from a mere legal cause of action. The bill must itself shew why it was neces- sary, or allowable for the plaintiff to leave the ordinaiy legal tribu- nals and come into a court of chancery to seek relief. It seems to have been formerly understood, that if it appeared" upon the face of the bill, that the plaintiff's remedy was properly at law, — as where the bill was for the recovery of a debt due by bond, — ^if the defendant answered and confessed the bond,Jie could not demur to the relief; because, admitting the debt, he ought to pay it, and not proceed to litigate it in either forum ; or if the plaintiff was pro- ceeding for the recoveiy of damages, the defendant might demur ; because the court could not settle the damages : but if he answered, he could take no advantage of it at the hearing:' for having: sub- mitted to the jurisdiction of the court, it would have the quantum of damages adjusted in a feigned action at law.(c) The rule now however is, that if the defendant could have demurred to the bill, (b) 2 Mad. Chan. 537; Barney v. Patterson, 6 H. & J. 204; (c) Gilb. For. Kom. 51, 53; North f. Strafford, 3 P. Will. 150; Pickering's case, 12 Mod, 171. 62 490 ESTEP V. WATKINS. because of its not presenting a case of an equitable character, but, instead of doing so, has answered it, the court will not make a decree for relief at the final hearing, (c?) The case exhibited by this bill is, however, one of which a court of chancery may properly take cognizance. It is admitted on all hands, that the assignee of a bond takes it subject to all the equity to which the obligor is entitled, whether he has notice of that equity or not. The contingency which gave rise to this obligor's equity w^as of such a nature, that on its happening, he could only obtain the relief to which he was entitled in a court of equity. (e) He therefore came here and obtained relief accordingly, even against the assignee and the then holder of his bond, the intestate of the only two of these defendants who now resist his equity. After which that assignee, availing himself of the legal form of his claim, obtained a judgment at law, which this plaintiff, from the peculiarly equitable nature of his defence, was unable to prevent. I am there- fore of opinion that this injunction must now be made perpetual, as well because this court should be consistent with itself, as because this plaintiff should have assured to him the full benefit of tbat to which he has been declared, by the decree of the 22d May 1815, to be equitably entitled. Whereupon it is Decreed, that the injunction heretofore granted in this case be and the same is hereby made perpetual, and that the said defendants pay to the said complainant his costs, to be taxed by the register. The defendants appealed, and the Court of Appeals affirmed the decree. {d) Barker v. Dacie, 6 Ves. 686 ; Penn v. Baltimore, 1 Ves. 446 ; Brace v. Taylor, 2 Atk. 253 ; Hovenden v. Annesley, 2 Scho. & Lefr. 633 ; Utterson v. Mair, 2 Ves. jun. 97 ; Brooke v. Hewitt, 3 Ves. 255; Kemp v. Pryor, 7 Ves. 245; Pig'got v. Wil- liams, 6 Mad. 95 ; Cover v. Chrislje, 2 H. & J. 67 ; Taylor v. Ferguson, 4 H. & J. 46 ; Pollard V. Patterson, 3 Hen. & Mnn. 85 ; Yancy v. Fenwick, 4 Hen. & Mun. 423 ; Martin v. Spier, 1 Hay w. 370 ; Hart v. Mallett, 2 Hayw. 136 ; Dickens v. Ashe, 2 Hayw. 176.— (c) Mole v. Smith, 1 Jac. & Walk. 645. MORETON V. HARRISON. 491 MORETON V. HARRISON. A defendant may, at the same time, plead several distinct pleas in bar, in equity as well as at law. . If a defendant pleads the statute of limitations, and there be any allegations in the bill of partial payments, &c. ; which, if true, would take the case out of the statute, the defendant must, by an answer in support of his plea, deny such allegations. A plea may, without replication, be set down to obtain the judgment of the court as to its formality and sufficiency. The vendor's lien, to secure the payment of the purchase money, is an incident of every contract for the sale of real estate ; unless such lien be waived or relinquish- ed. — A vendor's lien can only be barred by a lapse of tw'enty years. — An admission by the vendee, within the twenty years, that the purchase money has not been paid, sustains and continues the vendor's lien. This bill was filed on the 29th of NoA^ember 1825, by Joseph Moreton, administrator de bonis 7ion of John Westeneys, and James I. Pattison administrator de bonis no?i of James Pattison, aerainst Walter Harnson. The bill states, that the late James Pattison being seized in fee simple of a tract of land, called Hunfs Mount, the one half of which he held to his own use, and the other half in trust for the use of the late John Westeneys ; that they sold it in the year 1787, for the sura of ,£640, to the defendant, who stipulated by bond to pay for it before the first of September 1790 ; that they delivered the possession of it to the defendant on the 24th of December 1787, who has held and enjoyed it ever since ; that a small part of the purchase money had been paid, for which credit had been given ; and, that there remained due, at the time of the death of the ven- dors, Pattison and Westeneys, the sum of ^£555, for principal and interest, which has not been since paid ; and which the defendant had failed or refused to pay. Whereupon the bill prayed, that the defendant might be ordered to account with the plaintiffs concerning the balance of the pur- chase money, and be compelled to satisfy the same ; that is to say, one half to the plaintiff Jlio re/on, and the other half to the plaintiff Pattison ; or in default thereof, that the land be sold : and that the plaintiffs might have such further and other relief in the premises as might be consistent with the principles of equity. On the first of July 1826, the defendant put in the following pleas on oath ; but without any answer whatever. " The plea of Walter Harrison of Ann Arundel county to the 492 JVIORETON V. HARRISON. bill of complaint of Joseph Moreton, administrator de bonis non of John Westcneys and James I. Pattison, administrator de bonis non of James Pattison. " This defendant, by protestation to all the discoveries and relief in and by the said bill sought from or prayed against this defendant, for plea unto the said bill, saith ; That if John Westeneys deceas- ed and James Pattison deceased, or the complainants, as adminis- trators de bonis non of them, the said John Westeneys and James Pattison in the bill named, ever had any cause of suit against this defendant, for or concerning any of the matters or transactions in the said bill of complaint mentioned, the same did arise above twelve years before filing the said bill, and above twelve years before serving this defendant with any process to appear to answer the same. "And this defendant further for plea says and doth aver, that this defendant did not at any time within twelve years before filing the complainants' said bill of complaint, nor within twelve years befoi-e this defendant was served with process to appear and answer thereto, ever promise and agree, or in any manner bind himself to pay or satisfy the said John Westeneys and James Pattison in their lives, or the said complainants as administrators de bonis no7i of the said John Westeneys and James Pattison the sum of money men- tioned and expressed ,iii the bond marked exhibit A, filed by the complainants with their said bill, and referred to by them ; or any sum of money, for or concerning any of the matters, or transactions in the complainants' said bill of complaint charged or alleged. And therefore this defendant pleads the act of The General Assembly of the Province (now State j of Maryland, passed at a session of Assembly begun and held at the city of Annapolis, the twenty- sixth day of April, in the year of our Lord one thousand seven hundred and fifteen, entitled " An Act for liimitation of certain actions, and for avoiding suits at law" — and prays the benefit of the said act. " All which matters this defendant doth aver and plead in bar of the complainants' said bill, and of the complainants' pretended demand for which they seek to be relieved by their said bill. And this defendant prays hence to be dismissed with his reasonable costs in this behalf Avrongfully sustained." ■ These pleas were submitted, without replication, on the notes of the solicitors of the parties, to take the opinion of the court on their sufficiency. MORETON V. HARRISON. 493 22d December, 1826. — Bland, Chancellor. — These pleas have been set down for hearing without a replication ; consequently, the sole object is to obtain the judgment of the court on their suffi- ciency as they stand at this stage of the proceedings. The bill charges, in substance, not only, that the defendant for a valuable consideration became indebted to the intestates of the plaintiffs ; but it also goes on to allege, that the defendant afterwards paid a part of the debt; and that although he, "well knows and has repeatedly admitted the said sum of money and interest to be due, and has promised at various times to pay the same," yet he has not done so. It is perfectly well settled, that a partial payment is such an ac- knowledgment of the existence of the debt as will take the case out of the statute of limitations. But in this case,- the partial payment referred to was made on the 16th of October 1793, and this siiit was not instituted until the 29th of November 1825, a lapse of more than thirty years. This, therefore, is clearly not such an allegation, as if admitted to be true, would take the case out of the statute of limitations. But the subsequent promises, charged to have been made by the defendant, certainly would prevent the statute from being applied as a bar if admitted to be true. It is an established principle, that wj^ere any allegation of the bill would avoid the bar created by the statute, such allegation must be specially denied by an answer in support of the plea ; for otherwise, it will be taken as true, and the plea can then be no bar ; because it will appear upon the face of the proceedings to have been sufficiently avoided. There is, in this case, no answer denying the subsequent admissions and promises charged to have been made ; consequently, they must be taken for true, and are an ample avoidance of the pleas ; which, therefore, can be of no avail whatever. In the case of Morgan v. Roberts the defendant put in three pleas. No objection was made on the ground, that a defendant could not in equit}", as well as at common law under the statute, be allowed to plead two or more pleas in his defence ; and I sus- tained two of them, and overruled the third. Since then ray attention has been particularly called to this point. This matter in England seems to be not yet finally settled. (a) At common law, in almost all criminal cases, the accused is (a) Whilbread ». Brockhurst, IBro. C. C. 417; 2 Ves. & Bea. 153, note; Gibson v. Whitehead, 4 Mad. 241 ; Van Hook r. Whitlock, 3 Paige, 419; Beam. PI. Eq. 14 ; Mitf. PI. 296 ; Wyat's Pra. Reg. 2S0. 494 MORETON V. HARRISON. allowed to plead, at the same time, two or more pleas in bar ;(6) and, in all civil cases, the defendant is allowed, by the statute of Ann, which has always been the received law here, to plead double. Equity follows the law ; and the peculiarly liberal principles of our code seem to require, that this court should not be more technical, or less willing than a court of common law, to receive the defend- ant's defence in any number, or variety of forms deemed necessary by him, to render it completely effectual-; for the reason why du- plicity should not be allowed in the same plea, does not apply as against several distinct pleas. (c) Although a plea is not the only mode of defence in chancery ; and there may not be as great a necessity to allow a defendant to plead double in equity as at law ; yet it is sufficient, that justice may in most instances be promoted by it ; and that no positive mischief is likely to arise from it in equity more than at law. Long experience has satisfied every one of its utility at law ; and there is no apparent sound reason which forbids the adoption of a similar practice in courts of equity.(rf) (6) 2 Hawk. c. 23, s. 128, 137; 2 Hale PI. Cro. 239, 248; The King v. Gibson, 8 East, 107; The Commonwealth i^ Myers, 1 Virg. Ca. 188.— (r) 2 Mont. Dig. 99, 100. (d) 1829, ch. 220.— RiDGLEY v. Warfield.— This bill, filed 5th May 1779, states, that the plaintiff and defendant defluce their title to certain land from a certain Rich- ard Davis, but that the conveyance from one of the sons and devisees of Davis to the defendant, had in fact conveyed to him more than it was intended and meant to convey. Prayer, that the defendant might be confined to the true extent of the giant, &c. — To tliis bill the defendant presented the following defence. The pleas and demurrer of Seth Warfield to the bill of complaint of Henry Ridgley. — The said defendant by protestation, not confessing or acknowledging all or any of the matters or things in and by the said bill of complaint set forth and alleged to be true, in STich manner and form as the same are therein set forth ; as to so much and such part of the said bill, which seeks a discovery or relief from this defendant relating to any parol contract, or agreement made or supposed to be made between Thomas Davis and Stephen Steward, in the said bill mentioned, for the said tract of land called Davis's Purchase, or any part thereof different or variant fiom the deed said to have been executed in the. said bill, on or about the twentj^-ninth day of November seventeen hundred and fifty-six, by the said Thomas Davis to the said Stephen Steward ; and as to so much of the said bill which seeks a discovery or relief from this defendant relating to any parol contract or agreement made or supposed to be made between the said Stephen Steward and this defendant for the said tract of land called Davis's Purchase, or any part thereof, different or variant from the deed or conveyance said to have been executed, (in the said bill,) on or about the fourteenth day of December seventeen hundred and sixty -two, by the said Stephen Steward and Joshua Davis to this defendant : He, this defendant, doth plead, that by an act of Parliament, made in the twenty-ninth year of the reign of his late Majesty King Charles the second, entitled an Act for prevention of Frauds and Perjuries, it is, amongst other things, enacted ; that, from and after the twenty-fourth day of June sixteen hunilrcd and seventy-seven, no action shall be brought, whereby to charge MOEETON t'. HARRISON. 495 These pleas, in the first place, aver, that the cause of action arose above twelve years before the institution of the suit ; and then any person upon any contract of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized ; as by the said act may appear ; and this defendant avers, that neither the said Thomas Davis, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing for the sale or conveyance of the said tract of land called Davis's Purchase, or any part thereof, to the said Stephen Steward to any such efiect, as by the said bill is suggested, or any memorandum or note in writing of any agree- ment whatsoever for or concerning the said premises, or any part tliereof ; other than or different from the said deed, alleged in the said bill to have been made by the said Thomas Davis to the said Stephen Steward; and this defendant also avers, that neither he, the said defendant, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in wi-iting with the said Stephen Steward respecting the said tract of land called Davis's Purchase, or any part thereof, or any memorandum or note in writing of any agreement whatever, for or concerning the said premises, or any part or parcel thereof; and, therefore, this defendant doth plead the said act of parliament, and the matters aforesaid in bar to so much of the said bill as seeks to compel the defendant to execute any deed or conveyance to the complain- ant of the aforesaid premises, or of any of them, or of any peirt or parcel thereof pursuant to the said pretended agreements or either of them ; and as to any relief thereby prayed touching the said agreements or either of them ; and humbly prays the judgment of this Honourable Court whether he shall be compelled to make any further or other answer to so much and such parts of the said bill as are herein before and hereby pleaded unto as aforesaid. And this defendant for further plea unto the said bill saith, that if the complainant, or any of those from under whom he claims, ever had any cause of suit for or con- cerning any of the matters, transactions, or things in the said bill of complaint mentioned, (which this defendant doth in no sort admit,) the same did accrue or arise above twenty )'ears before the filing the complainant's bill of complaint ; and above twenty years before the serving this defendant with any process to appear to and answer the same, during all which time the said Stephen Steward, and all those claiming under him have constantly acquiesced under the said deed or conveyance alleged to have been made to him by the said Thomas Davis ; that is to say, from the time of making the same until the time of filing the compkiinant's said bill ; wherefore this defendant doth plead the act of parliament or statute of limitations made in the twentj'-fii-st year of king James the first; and also the length of time and acquiescence, and prays tlie benefit of the same ; all which matters this defendant doth aver and plead in bar of the complainant's said bill, and of the complainant's pretended demands for which he seeks to be relieved by the said bill. And this defendant further saith, that he is advised by his counsel, that there is good cause of demurrer to the said bill, and that there is no matter or thing in the said bill contained good and sufficient in law to call tliis defendant in question in this honorable court for the same ; but that there is good cause of demurrer thereto : and for cause of demun-er, tliis defendant saith, that, by the complainant's own shewing, the said bill, (in case the allegations therein contained were true, which this defend- ant does in no sort admit,) contains not any matter of equity whereon this court can ground any decree or give the complainant any rebel' or assistance as against this defendant : wherefore and for divers other errors and imperfections in the said bill 496 MORETON V. HARRISON. farther say, that the defendant did not promise or assume to pay the debt at any time within twelve years before the complainants filed their bill. Regarding these allegations as two distinct pleas, they are, as pleaded, each of them, informal and wholly insuffi- cient. And, taking them as one plea, it is multifarious and double. Duplicity is a vice in pleading, and singleness is no less necessary in equity than at law. This plea must, therefore, be overruled.(e) The object of this bill is to enforce an equitable lien by a ven- dor against a vendee, and to have the land sold, in virtue thereof, for the payment of the balance of the purchase money. Whether a plea, that the cause of action had been more than twelve years standing grounded on the act of assembly, (y) in any, the most correct form, would avail against a claim of this kind, does not appear to have been at all considered, or alluded to. I shall there- fore express no opinion upon the subject. V/hereupon it is ordered, that the said pleas be and the same are hereby overruled : and the defendant is required to make a good and sufficient answer to the plaintiffs' bill of complaint on or before the fifteenth day of February next. The defendant filed his answer w^ith in the time prescribed; in which he admitted the purchase and possession, but relied on the lapse of time, &c. The plaintiff put in a general replication ; and commissions were issued and testimony taken and returned ; after which, with the leave of the court, the plainti^s so amended their bill as to make the heirs at law of the late James Pattison, who at the time of his death was seized of the whole legal title to the lands, parties plaintiffs in this suit. appearing, this defendant dotli demur in law thereunto ; and humhly demands tlie judgment of this honourable court, whether he shall be compelled to put in any furtlier or other answer to the said bill ; and humbly prays to be hence dismissed with his reasonable costs in this behalf most wrongfully sustained. Thomas Jznings, for Deft. 2d September ^,1789. — Rogers, Chancellor. — Decreed, that the bill aforesaid of the complainant be dismissed, and the same is hereby dismissed ; and that the said com- plainant pay to the said defendant his costs in this behalf expended. — Chancery Pro- ceedings, Lib. S. H. H., letter B. 722. N. B. Recollecting, as has been before explained, {H. K. Chase's Case, ante, 217,) that a demurrer is overruled by a plea, it is obvious, that this decree must have been founded upon the propriety of thus pleading two pleas, and upon the validity of one or both of the pleas. (e) Whitbread v. Brockhmst, 1 Bro. C. C. 417; S. C. 2 Ves. &, Bea. 153, note. (/) 1715, ch. 23, s. 6. MORETON V. HARRISON. 497 2Qth August, 1828.— Blaxd, Chancellor. — This case standing ready for hearing, and having been submitted on notes by the respective soHcitors, the proceedings were read and considered. It appears, that James Pattison in the year 1787, was seized in fee of a tract of land called Hunfs Mounts containing one hundred and sixty acres, the one half of which he held as his own, and the other moiety in trust for the use of John V/esteneys ; that, on the 24th of December 1787, they sold this land to Walter Harri- son, for the sum of four pounds per aci'c, the one-fourth of the purchase money to be paid on the first of May 1789, one other fourth on the first of September following, and the other two-fourths on the first of September 1790 ; the whole to bear interest from the time Harrison obtained possession. Other stipulations are 'contained in the contract, but they have no material bearing upon the matters put in issue between the parties to this siiit. The land was accordingly delivered to Harrison on the 24th of December 1787, and he has had peaceable possession of it ever since. He made several partial payments, the last of which was on the 16tli of October 1793, but there is no proof, that he ever made any other or further payments since that lime. This contract and these payments are shewn by a bond, marked as the plaintiffs' exhibit A, given by Harrison to Pattison and Wcsteneys, dated on the 24th of December 1787, with the acknowledgements of the payments endorsed thereon. Some time after these transactions Pattison and Westeneys died. The defendant in his answer admits the contract for the land, and his possession of it as stated in the bill, but he says, that in pursuance of his contract he made, at on which a bill might be filed between the same parties to have an award vacated. (A) But if no objection be made against an award, then, according to a long standing rule and practice, either party may apply for and have a decree passed in conformity to its terms. (i) Upon the general principles by which this court is governed, and by analogy to the express provisions of the acts of Assembly regulating similar references in actions at common law, a party cannot be permitted to withdraw from or to revoke a reference made by an order of this court, with the consent of parties, without the sanction and order of this court itself allowing it to be done.(j) ((?) 2 Mad. Chan. 712.— (rf) Lucas v. Wilson, 2 Burr. 701 ; Lansdale v. Littledale, 2 Ves. jun. 453. — (e) Lucas v. Wilson, 2 Burr. 701 ; Dick v. Milligan, 2 Vcs. jun. 24 2 Fow. Exch. Pra. 350.— (/) Warinc^ y. Mullan, 1771 ; Chan. Pro. lib. W. K. No. l' fol. 6, 28, 4S, &c.— (g) Nevan v. Pinkncy, 17S7, Chan. Pro. lib. S. H. H. letter B. fol. Q. {h) Goldsmith v. Tilly, 1 H. & J. 3G1 ; Harris v. Dorsey, 1 H. & J. 416 ; Cromwell V. Owings, 6 H. &, J. 10 ; Heuitt v. The State, 6 H. &. J. 95.— (i) Brawner v. Gordon, 17th March 1789, Chan. Pro. lib. S. H. H. let. B. fol. 597; Hardy v. Howard, J\is! 16th July, 1794.— (» Crawshay v. Collins, 1 Swan. 41 ; Harcourt v. Ramsbottom' 1 Jac. & Walk. 491. 518 PHILLIPS V. SHIPLEY. In this case there has been no such regular and solemn revocation. The award returned appearing to be sufficiently fair and unambi- guous upon its face to afford a proper foundation for a decree •,{k) and the affidavits read in evidence being entirely too loose and contradictory to sustain the allegation of malpractice in the arbitra- tors ; the caveat must therefore be overruled and the award con- firmed. Whereupon it is decreed, conformably to the said award, that the property in the proceedings mentioned situate in Pratt-street in the city of Baltimore be held as the property of William Ship- ley junh. and Isaac Phillips jun'r. and their legal representatives and assigns, as tenants in common ; and it is further ordered, that the property in the bill mentioned situate in Saratoga-street in the city of Baltimore be held by the said William Shipley jun'r, Isaac Phillips jun'r. and Richard A. Shipley, their legal representatives and assigns, as tenants in common ; and it is further ordered, that the property on Franklin- street in the bill mentioned be held as the sole and exclusive property of the said Richard A. Shipley, his legal representatives and assigns. And it is further ordered, that the said plaintiffs William Shipley jun'r. and Isaac Phillips jun'r. pay unto the said defendant Richard A. Shipley the sum of three hundred and fifty-five dollars and eighty-nine cents, with legal interest thereon from the 31st day of May last until paid. And^it is further ordered, that each party pay his own costs to be taxed by the register ; but the costs of the award, as estimated by the arbitrators and endorsed on the back of the award, are hereby rejected as forming no part thereof. (fc) Tillard v. Fisher, 3 H. & McH. 118. IGLEHART r. ARMIGER. 519 IGLEHART v. ARMIGER. The vendor's equitable lien an incident to a contract of purchase : its peculiar nature and character : two equitable liens upon the same estate may well exist together. An equitable lien, not being assignable in its nature, is extinguished by the assign- ment of the bond or note given for the payment of the purchase money. An assignment or bequest of debt carries with it all the securities. The assent of parties cannot authorize the passing of a decree for which the case set forth in the bill affords no sufficient foundation. "^ This bill was filed on the 30th of September 1828, by James Iglehart, Robert S. Bryan^ and Willimn Mc Parian ^ against Benja- min Armiger^ Richard G. Hutton, Richard D. Hill, Rezin Estep, John S. Selby, and JVicholas I. Watkins. The object of the bill was to have a tract of land which had been sold by the plaintiff Iglehart, as trustee under a decree of this court, and purchased by the defendant Armiger, resold for the payment of the balance of the purchase money ; on the ground, that the equitable lien of the vendor still subsisted in full force and unimpaired. The bill stated, that the bonds, taken by the trustee Iglehart to secure the payment of the purchase money, had been assigned, and were then held by the plaintiff JMcParlan, as the assignee thereof; and, that the defendants Selby and Watkins had agreed to guaranty their payment. Whereupon the plaintiffs prayed, that the land might be sold for the payment of the balance of the purchase money which had been secured by those bonds, and for general relief. The defendants, Selby and Watlcins, by their answer, admitted the facts as stated in the bill ; but insisted, that a decree should pass, in the first instance, for the sale of the land ; because they were, by their guaranty, only responsible upon an eventual defici- ency of the land and the persons bound before them. None of the other defendants having appeared, as required by the subpcena which had been served on them, an interlocutory decree was, on the 11th of December 1828, passed against them, and a commission issued, under which testimony was taken and returned. Upon which the case was submitted. IQth January, 1829. — Blaxd, Chancellor — This case standing ready for hearing, and having been submitted on the notes of the plaintiffs' solicitor, the proceedings were read and considered. The circumstances and facts are these. Joseph Selby died intes- tate, seized of a certain tract of land which descended to his 520 IGLEHART v. ARMIGER. children. One of whom, Jemima, with her husband John Cross, and others, filed a bill in this court, alleging, that the estate, which had so descended to them, would not admit of partition without loss ; and therefore prayed, that it might be sold and the proceeds divided among them. It was decreed accordingly, on the 12th of December 1816 ; and Thomas Sellman was appointed trustee to make the sale. In pursuance of which authority he reported, that he had sold the property to John Cross, who had given bond as required for the purchase money ; and, on the 29th January 1817, an order was passed to confirm the sale unless cause shewn. On the 8th of March following Johji Cross, the purchaser, died intes- tate, and without having paid the purchase money, leaving three minor children, his heirs, to whom the real estate so purchased descended. The minor heirs of Cross, by their next friend, petitioned the legislature for a special act, authorizing the sale of the interest so purchased by their father, in order to save the fee simple estate which had descended to them, and also the personal property, agricultural implements, &c., w^hich were necessary for their sup- port : alleging, that the Chancellor, on application, had declared it to be his opinion, that he had no authority to decree in such case : that is, as is presumed, that he had no authority to decree, at their instance, that the assets should be so marshalled ; and upon this ground, as it seems, the legislature, on the 20th of January 1818, passed an act,(a) authorizing Thomas Sellman as trustee to sell, at public sale, upon such terms as the Chancellor should direct, all the equitable interest in the real estate which had so descended to the minor children of the late John Cross ; and, from the proceeds, to pay the purchase money ; and the balance to be disposed of as the Chancellor should direct ; or to pass to those children as realty ; and, if Sellman the trustee should die, the Chancellor was authorized to appoint a successor. ' In pursuance of this act of Assembly, Sellman, on the 27th of the same month, filed his petition to the Chancellor, who, on the same day, passed a decree accordingly specifying the terms of sale. Upon which Sellman, on the 6th of October 1818, made a sale of the equitable interest of the children of Cross to Benjamin Armiger, by whom a part of the purchase money was paid, and the residue secured by bonds and a note with surety, which were (rt) 1S17, ch. 46. IGLEHART v. ARMIGER. 521 made payable " to Thomas Sellman trustee for the sale of the real estate of John Cross deceased." After which, and before he had reported the sale, Sellman died, and James Iglehart jun'r. was appointed to succeed him as trustee ; who made a report of the sale, and that he had the money received and also the bonds taken then in his hands. This sale was finally ratified on the 19th of March 1819 ; and, by an order of the 28th of April following, the proceeds were made payable to this same James Iglehart^ who was also appointed trustee in the place of Sellman under the decree of the 12th of December 1816, leaving a balance still due from the late John Cross'^s estate to the late Selhyh estate, as shewn by the statement taken from the report of the late Thomas Sellman., who had made and reported a sale under the decree in that case, which had not been finally ratified until the 27th of January 1818. In which suit, for a partition of the late Joseph Selby^s estate, the auditor, on the 1st of April 1818, made and reported a state- ment of a distribution of the proceeds of sale, allotting one share of the estate of the late Joseph Selby which had been sold to John Cross, to the said John and Jemima his wife, which was ratified on the same day. On the 29th of April 1819 Iglehart the trustee, by petition, applied to be directed as to whom the share awarded to John and Jemima was to be paid. Upon which the Chancellor passed the following order. " 1st May, 1819. — Kilty, Chancellor. — On considering the within application, I am of opinion, that the part of the proceeds of. Joseph Selby''s estate, allotted to John Cross and Jemima his wife, is to be paid to Jemima Cross, who has survived John Cross, inasmuch as it was not received, or assigned, or applied by him in his lifetime. Having been the purchaser, if he had settled up the other parts, he might have settled his proportion with the trustee by discount, or possibly might have settled that part only with him. The case must now be considered, as to her right, in the same manner as if any other person had been the purchaser, (c) But the trustee, in paying the parts allotted under the orders of the 1st and 29th of April 1819, must pay only a rate or proportion to each, according to the net sum received from the sale of J. Crosses real estate, until he recovers the balance on his bond. The present trustee is allowed one-third of the commissions of 182 dollars, pay- ing two-thirds to the representatives of T. Sellman.'''' (z) Jones V. Jones, ante, 454. 66 522 IGLEHART v. ARMIGER. Two of the bonds which had been taken from Armiger, after several partial payments on them, were, on the 28th of December 1824, by James Iglehart, as trustee for the sale of the real estate of Johii Cross deceased, assigned to Joh?i S. Selby one of the heirs of the late Joseph Selby, and to whom a portion of his estate had been awarded by the auditor's report, and the order thereon of the 1st of April 1818. And, by Selby, these bonds were assigned to Robert S. Bryan ;- and, by him assigned to William McParlan. JYicholas J. Watkins and John S. Watkins undertook to guaranty the payment of these bonds. Upon all which this bill was filed. It was urged, that the equitable lien held by the court, arising from the sale under its decree, or by the late Thomas Sellman, and his successor, as trustee under the act of assembly, was assignable in its nature ; that it has been assigned ; that it was necessarily associated with the bonds given by the purchaser Armiger, and his sureties, and virtually passed along with the assignment of them from Iglehart to Selby, to Bryan and to McParlan. An equitable lien is one of a very peculiar character. It is not like the common law lien of factors, innkeepers and others, asso- ciated with and entirely dependent upon the actual possession of the property on which it is a tie ; it is not like a general judicial lien, which springs into existence in favour of a party w^ho obtains a judgment, which enables him to take the lands of the defendant in execution, and continues as an incident to such unsatisfied judg- ment to which the statute has expressly made all the lands of the defendant liable ; it is not like the lien of the State upon the pro- perty of its debtor, founded as well on positive enactment as on principles of common law, by which the interests of individuals are postponed in favour of those of the public ; it is not precisely of the nature of the lien given by the civil law to those called privileged creditors, such as nautical salvors, material men, &c. ; nor is it altogether like a common mortgage, although it operates and is treated, in many respects, as a mortgage. It differs from all these in this, that, if it exists at all, it must originate with, and as an incident of the contract of purchase itself; that it is not always a part, or principle of the contract as in the case of a lien given by the civil law, to privileged creditors ; that it is not founded on any express stipulation ; that it is not dependent on having pos- session ; that it is not deduced from any statute ; and that it does not rest on any general principles of common law. This doctrine in relation to equitable liens, it is said, has been IGLEHART v. ARMIGER. 523 probably derived from the civil law as to goods, (6) and it seems, that such a lien upon goods is a personal right Avhich cannot be transferred to another. (c) But in whatever way it may have origi- nated, it is now well settled, that an equitable lien arises from the principle of equity, that the purchaser of real estate ought not to be allowed to hold it, as his own, until the vendor has been fully satisfied ; and that it is a vcndor^s security and privilege. It is indispensably necessary to the existence of such a lien, that the parties should stand in the relation towards each other of vendor and vendee of real estate, the purchase money of wdiich has not been fully paid. If that relationship is, in any manner whatever, put off, altered, or relinquished, an equitable lien either cannot arise, or will be destroyed. The pure relationship of creditor and debtor, or of borrower and lender, is incompatible with the existence of an equitable lien, excludes, or extinguishes it. In a contract of loan, the relation of creditor and debtor attaches independ- ently of any securities for the payment of the money, such as a mortgage, bond, or note : which, when given, are the mere acci- dental circumstances of a contract in all respects complete with- out them. The chose in action is assignable in its nature, in equity at least, independently of those evidences and se(iurities of it. But in a purchase of real estate payment is an essential part of the contract ; hence it is an established principle of equity, that the vendor holds a lien upon the estate to secure the payment of the purchase money ; and this lien is an incident uniformly arising from, and associated w^ith such a contract, (rf) It exists in all cases, unless a manifest intention, that it should not exist, appears ;(e) and it continues until it has been, in some way, impliedly or positively waived ; all which it lays upon the vendee to shew.(y) In the case of a purchase of a real estate the equitable lien arises as an incident thereto, and can only exist together with it, as principal and incident. In the case of loan the debt is the principal, and the bond, note, or mortgage are only the accidents or incidents to it. In both cases the extinguishment of the prin- cipal destroys its incidents. A purchase may be made, or a debt may exist w^ithout an equitable lien, or a bond, note, or mortgage {b) Maclcreth v. Symmons, 15 Ves. .344 ; Walker v. Preswiclc, 2 Ves. 622. (c) Daiibigny v. Duval, 5 T. R. 606.— (rf) Ex parle Gvrynnc, 12 Ves. 379.— (e) Mack- reth V. Symmons, 15 Ves. 341.— (/) Mackreth v. Symmons, 15 Ves. 330; Sug. Vend. & Pur. 3S6; Pow. Mort. 1062. 524 IGLEHART v. ARMIGER. as its incident. A bond, note, or mortgage may however be executed as being, in itself, the creator, evidence, and incident of a debt ; but an equitable lien cannot be thus made and executed apart from, and independently of a contract of purchase, or as being, in itself, the evidence of a purchase. Hence, it is perfectly evident, that a bond, note, or mortgage may be, in itself, at once the principal and incident ; it may create a debt, and thus estab- lish the principal of which it is the evidence and incident ; but an equitable lien is so purely an incident, that it cannot be called into existence in any other manner than as an attendant upon a contract of purchase ; and 'when that is satisfied or substantially waived, the equitable lien is gone. It is true, as a general rule, that the principal carries with it all its incidents, but not the reverse. AccessoriuTn non ducit, sed sequi- tur suuin principale.[g) And therefore if the debt be in any man- ner distinctly and legally assigned ; the assignment carries with it the bond, note, or mortgage as its incident ; because the transfer of the money carries with it the mortgage interest in the land, and all other securities which were given for the purpose of assuring its payment. This may be done by parol notwithstanding the sta- tute of frauds. So too, if it be the intent of the mortgagee to give the debt only, he may do so by a will not attested by three witnesses ; and the legatee may in the name of the heir obtain, in equity, all the benefit of the mortgage : but if his intention was to devise it as land, then his will must be duly attested for that pur- pose. The reason of this is, that a gift, assignment, or bequest of the principal carries with it all its beneficial incidents. (A) But an equitable lien is an encumbrance upon land, which can only be held by a vendor ; and although assets may be mar- shalled, so as to put a vendor altogether upon his equitable lien, for the benefit of other creditors, yet no third person can, as assignee of the vendor, derive any benefit from such lien ;('i) nor can it, like a bond or mortgage, be assigned ; because it is not expressed in writing, or in any separate contract ; but exists only as an insepa- rable equitable incident of the contract of purchase ; and is raised by construction of equity, in favour of the vendor only. To allow it to pass by an assignment of the claim for the purchase (g) Co. Litt. 151, 152 ; 2 Blac. Com. 176.— (A) Greeny. Hart, 1 John. Rep. 580 ; Jackson v. Willard, 4 John. Rep. 41 ; Runyan v. Mersereau, 11 John. Rep. 534; Martin v. Mowlin, 2 Burr. 978 ; Row. Mort. 140, 144, 266, 429.— (t) Mackreth v. Symmons, 15 Vcs. S39, note ; Sug. Vend. St Pur. 395. IGLEHART v. ARMIGER. 535 money ; or by a transfer of the bonds, or notes, given as a security for the payment of the purchase money, would be of the most ruinous consequence to titles to real estates. It would completely break down the statute of frauds, and all the acts of Assembly requiring conveyances of lands to be recorded ; according to which acts no estate for above seven years in any land shall pass or take effect, unless the written conveyance, by which it is made, be within six months thereafter put upon record, and thus made accessible to all concerned. A common bond, or a mere promissory note passing with a blank endorsement from hand to hand, might carry with it an incumbrance upon a real estate of the most binding and extensive nature. Besides, if such assignable or negotiable instruments were permitted to carry with them any such equitable lien, aliens and others, incapable of directly taking any such estate, might thus acquire and hold a much larger interest in land than is allowed by our law.(j) This certainly ought not to be permitted ; and there is no authority sanctioning any such principle. (A;) But where there has been a bond or promissory note given for the payment of the purchase money, which does not impair the equitable lien, the assignment of such security must operate as a tacit relinquishment of the equitable lien ; because the assignee and vendee are thereby placed in the relationship of creditor and debtor ; and the vendor having thus finally waived the right to enforce his equitable lien, it can never again be revived in his favour ; unless his privilege as vendor has been kept up and con- tinued by the holding of him answerable as assignor of the securi- ties given for the payment of the purchase money. (/) Although it is admitted, that no adjudged case can be found, in the English books to sustain the position, that an equitable lien may be assigned, or that it virtually passes along with the assign- ment of the bonds given for the payment of the purchase money : yet it is said, that the principle has been sanctioned by the deci- sions of this court. The case principally relied on is, that of Brewer and Mackuhin V. JVicholls, 8th July 1824. In that case Arnold was the vendor; and he, as such, transferred to Brewer and Mackuhin all the interest he held in the land, subject to J\icholls^s contract as vendee ; and (i) 17S4, ch. 53; Hughes v. Edwards, 9 Wheat. 496.— (/c) Sug. Vend. & Pur. 396.— (Z) White v. Williams, 1 Paige, 502 ; Wilson v. Graham, 5 Mun. 297. 526 IGLEHART v. ARMIGER. also transferred to Brewer and Mackubin the debt due from JVic/iolls to him : to which assignment A'"icJiolls was privy and assented. By virtue of all which Brewer aiid Mackubin became, in fact, the vendors to whom Jficliolls the vendee stipulated to pay the pur- chase money. The whole contract and relationship of vendor and vendee were thus passed over to the new parties, and therefore it was held, that the assignment W'ith the express assent of all the original parties carried with it the incident equitable lien.(?n) But, in the case under consideration, it is not pretended, that any of these assignees were ever, in any manner or form, to be considered as the vendors ; or that the interest in the land had been assigned to them subject to Jirmiger''s contract. These assignees merely took the chose in action with the bonds as the evidence of it ; and now contend, that the assignment so made to them has, in itself, given to them the equitable lien originally held by the vendor. These cases are materially different, and the one cannot in any manner be applied to sustahi the position now contended for in the other. The case of Hollingsworth v. Bowie and others, 20th June 1824, has also been relied on. But no reasons were given for the deci- sion, and it seems to me, that the judgment of the Chancellor must have been founded, not upon the assignable nature of an equitable lien, but upon the ground, that Ray, the surety of Boivie the ven- dee, wnth Barber, the holder of the note, had a right to be substi- tuted in the place of the vendor. (71) The case of Randall and others v. White and others, 3d August 1825, has also been spoken of. But it does not appear, that any such question, as that of the assignable nature of an equitable lien, could well have arisen in it ; and I am confident, no such point was ever made in that case. It will be proper, however, to recollect, that this. land has been twice sold under the authority of this court ; first, under the decree of December 1816, by which the court reserved the legal title with an equitable lien as against the purchaser John Cross ; and secondly, under the decree of January 1818, by which the, equitable estate of John Cross was sold with the reservation of an equitable lien as against the purchaser Benjamin Armiger. A doubt has been expressed whether an equitable lien can arise as an incident to the (ffi) Mackrcth v. Symmons, 15 Ves. 330. — (n) Ghiselin v. Ferguson, 4 H. & J. 522; White v. Williams, 1 Paige, 502. IGLEHART v. ARMIGER. 527 sale of a mere equitable interest,(o) such as that sold to Armiger. But I can see no ground for any such distinction between the sale of a legal and an equitable estate. The lien is given to the vendor, not because of the quantity of interest, or the nature of the estate sold ; but, because it would be unjust that the purchaser should hold that absolutely for which he had not paid ; and because, until the whole purchase money has been paid, the contract of purchase cannot be considered as complete. Now these reasons apply as obviously, and as satisfactorily to the sale of an equitable as to the sale of a legal estate. The existence of two equitable liens upon the same real estate can be in no respect more incompatible than the contemporaneous existence of two encumbrances of any other description. They must be permitted to take according to their priorities and other equities, as usually adjusted by this court. There may be, perhaps, no case like this to be found in the Eng- lish books ; but it has often occurred in this court, that an equitable lien has been held to arise on a sale of a mere equitable estate, which lien has been enforced accordingly, (p) There is then nothing in the authorities adduced, which shews it to have been held by this court, either that an equitable lien was in any manner assignable unconnected with the land itself w^hich was the subject of the contract of purchase; or that an assign- ment in any form of the bond or note given to secure the pay- ment of the purchase money carries with it the equitable lien held by the vendor or assignor of such bond or note. I will here take occasion to repeat, that, in all sales under a decree, the court itself must be considered as the vendor ; since the contract is made with the court, through the instrumentality of its trustee or agent, for the benefit of all concerned. (9) And con- sequently, the equitable lien, thus held by the court, may, and has always been treated as such a lien would be considered if held by a natural person ; but which can in no manner whatever be affected by any act of the trustee not expressly sanctioned by the court itself. The powers and duties of a trustee are always speci- fied in the decree, or orders by which his acts are directed. He was, in this instance, directed to collect and distribute the purchase money, by the order of the 1st of April 1818, and by the act of (0) Bayley v. Greenleaf, 7 Wheat. 50. — {p) Ghiselin v. Fergusson, 4 H. &. J. 522; Pinkney v. Mayo, MS. 19th April 1814, & 14th April 1821.— («/) Savile v. Savile, 1 P. Will. 747; Ex parte Minor, 11 Ves. 561. 528 IGLEHART v. ARMIGER. 1817, ch. 46. But it does not appear, that he was in any manner authorized to assign the bonds ; and therefore, I do not see upon what ground he now assumes the right to appear here as a plain- tiff, and tell this court of his unauthorized dealing with its business. But suj^pose the court could have so ordered by the provisions of the act of 1817, ch. 46, and he had been directed to assign those bonds, that assignment would not have carried with it a lien upon the land until they were paid ; or any right to resort to him, or the court, in case they had not been paid after the assignee had used due diligence to recover the amount secured by them. (5) The acts of Assembly giving a lien in certain cases, in connexion w'ith the bond given by the purchaser, afford strong evidence, that it never has been considered as following any such assignment where it was not expressly given by law.(^) But it is urged, that a decree may be entered up by the default of some, and wuth the assent of the others of these defend- ants ; and therefore, the plaintiffs may be permitted to take such a decree as tl\ey can abide by. That might be conceded if the case itself, as shewn by the bill, w^as such an one as fell pro- perly under the cognizance of a court of equity. That the court has jurisdiction, and that the plaintiff has a legal capacity to recover, upon the facts stated in the bill, are positions assumed ; and must plainly appear, by the bill itself, in all cases, to entitle the plaintiff to a decree, in any form or upon any terms ; and to lay a sufficient foundation upon which the court may rest its judg- ment. Consent either tacit or express cannot give the court juris- diction where it has none ; or entitle the plaintiff to relief, where, by his own shewing, it appears he has no capacity to receive it. Thus far, and to this purpose all courts of justice, as well of law as of equity, must see, that their judgments and decisions have a proper and legal foundation to rest upon.(M) But, divesting these plaintiffs of their unwarranted pretensions to be considered as the holders of the equitable lien of the original vendor, their case has no one single ingredient or character of equity about it. Their remedy, if any, is at law as assignees of the bonds, or upon the special contract subsisting among the parties. Whereupon it is decreed, that the bill be dismissed with costs, &c. (s) 1785, ch. 72, s. 9.— (/) 1S20, ch. 191, s. 20, 21, 8c 22.— (u) Bac. Abr. tit. Pleas &. Pleadings, B. 5, 1 ; Dr. Bonham's Case, 8 Co. 239 ; Clarke v. Conn, 1 Mun. 160. MWRPHY I'. DALLAM. 529 MURPHY V. DALLAM. A devise of land to a religious sect without the leave of the legislature, in some way previously had Jind obtained, is void. This was a creditors' bill filed on the 17th of November 1824, by Jolm Murphy against Henrietta M. Dallam^ William J\L Dallam and others, the widow, executors and devisees of Josias W. Dallam deceased ; upon which a decree was passed on the 8th of Feb- ruary 1826, and the real estate of the deceased was sold accord- ingly. After which the auditor, in his report of the 29th of October 1828, making a distribution of the proceeds of the sales among the creditors, &c., says, that he had made no allowance to John Murphy^ who was a purchaser under the decree, for the lot claimed out of the property sold to him, by the Methodist society in virtue of a devise in the will of the deceased. Independently of other objections, the devise woidd be void as against creditors. 12;/i January, 1829. — Bland, Chancellor. — It appears by the will of the late Josias W. Dallam, that he devised one-fourth of an acre of his lands, as described, to Francis Ashury for the use of the Methodist society and a school. It is not shewn, that this society ever obtained tlie leave of the legislature, in any manner "whatever, to take or hold this property. The act of 1802, ch. Ill, authorizes any religious society to form themselves into a body politic, and the 8th section of that act, and the act of 1815, ch. 222, authorizes such corporations to take and hold a certain amount of property. But it has not been shewn, that the Metho- dist society to whom this devise was made had formed themselves into a body politic, and thus became qualified to hold this property by virtue of this general leave of the legislature. (a) Therefore I am of opinion, that this devise must be considered as absolutely null and void by virtue of the 34th article of the Declaration of Rights ; and upon that ground the claim of the society has been properly rejected. (a) By the act of 1791, ch. 17, it was enacted, " that tiie leave of the legislature be hereby granted to the said religious society of people called Quakers, to enjoy for ever the use of the said land in East Nottingham, and West Nottingham ; pro- vided the Chancellor, on examination, shall find the facts above stated to be true," Sec. This appears to be the first act of the kind, passed in pursuance of the C4tli article of the Declaration of Rights. 67 530 WATKINS V. DORSETT. Whereupon it is ordered, that the foregoing statement as made and reported by the auditor be and the same is hereby ratified and confirmed ; and the trustee is directed to apply the proceeds accord- ingly, making payment to the said claimants or to their respective solicitors, with a due proportion of interest that has been or may be received, except claims No. 3, 17, and 28, which are suspended until further order. WATKINS V. DORSETT. An executor or administrator who overpays takes the place of the creditor whose debt he pays, and is entitled to the benefit of his priority. The principle of the statute of limitation may be applied in favour of a plaintiff as well as of a defendant. The act of assembly which gives the process of a judicial attachment applies only to courts of common law. Choses in action, and several other kinds of property are beyond the reach of a fieri facias. This bill was filed on the 29th of January 1827, by Samuel Wat- Icins, Augustus Watkins, Charles Watkins, Ann Watkins, Jane Watki7is, and Eliza Watkins, infants, by Benjamin Watkins their next friend, against Thomas J. Dorsett. The bill states, that Samuel W. Clagetf, by his will, made on the 21st of July 1815, bequeathed certain negro slaves to the infant plaintiffs, and appointed Walter Clagett his executor; that Samuel died soon after, and Walter, having taken upon himself the office of executor, returned an inventory of his testator's personal estate on the 3d of June 1817 ; and on the 9th of April 1819 passed a final account, in which he is represented to have paid in satisfaction of claims against his testator the sum of $343 18 more than the amount of moneys received by him ; that, soon after the settlement of this final account, he transferred and delivered to the legal guardian of these infant plaintiffs, for their use, the several specific legacies which had been bequeathed to them by his testator ; and acknowledged himself to be perfectly satisfied and paid ; that after- wards, in the year 1819 or 1820, Walter Clagett died ; and the defendant, who had married his daughter, and was thus interested in having this alleged claim against the testator Samuel established, WATKINS V. DORSETT. 531 had obtained letters of administration de bonis non on the estate of the testator Samuel W. Clagett, and had advertised for sale, and was about to sell those very slaves, which had been so specifically bequeathed and delivered to these plaintiffs. The plaintiffs, by their bill, averred, that no debt was then due on the final account of the late Walter Clagett ; that it had been satisfied ; that no suit had ever been instituted to establish it ; and that it was barred by the statute of limitations. Whereupon the plaintiffs prayed, that they might have an injunction to prevent the defendant from making sale of the property so bequeathed to them ; and that they might have relief, &c. The injunction was granted as prayed. The defendant put in his answer, in which he admits the facts as stated in the bill ; but denies that the claim had ever been paid ; and insists, that it could not be barred by the statute of limitations, as there had not been, until he administered on the estate of Samuel W. Clagett, any one against whom suit for its recovery could have been brought ; and that it was with him alone to admit or deny the existence of the debt. Upon this answer the defendant gave notice of a motion to dis- solve the injunction: on the hearing of which on the 17th of March 1827, it was continued until the final hearing or further order. After which a commission was issued, under which testi- mony was taken and returned, and the case set down for final hearing. dOthJuly, 1828. — Bland, Chancellor. — This case standing ready for hearing, the solicitors of the parties were fully heard and the proceedings read and considered. The object of this bill is not to repel a claim made by the exe- cutor of Walter Clagett against these plaintiffs ; but to restrain the defendant, as administrator de bonis non of Samuel W. Clao-ett, from oflSciously making sale of that which had been the property of his testator, (but which had, long since, been legally delivered over to these plaintiffs to whom it had been bequeathed,) for the purpose of paying the claim, which Walter, by reason of his over payment, as is alleged, had against the estate of his testator Samuel. An executor who overpays is allowed, for such amount, to take the place of the creditor whose claim he has thus paid beyond the assets of his testator. He is, by substitution, regarded as one of the creditors of his testator : but such executor must establish the claim so overpaid against the heir or devisee by the same kind of testimony which might have been required of the original 532 WATKINS V. DORSETT. creditor himself.(«.) Had Walter Clagett^ who thus became a creditor of Samuel W. Clagett, made this claim ; the circumstance of his having delivered up the surplus, and the great length of time which had elapsed, from the delivery on the 9th of April 1819 until the institution of this suit, without accounting for the unqualified manner of the delivery, and the delay, would have been con- sidered as a complete bar. But, in this case, the statute of limi- tations, as such, cannot properly be applied ; because, that statute is a defence given to a debtor against a creditor ; and here it is not the creditor himself who makes the claim. Yet the result of what this defendant claims a right to do would be the same as if the executor of Walter Clagett wei'e here, as plaintiff, asking pay- ment and to have his claim sustained against these parties as defendants. And, consequently, whatever defence they would, in such case, be permitted to make, they ought, as plaintiffs, to be allowed to have the benefit of in the form in which the matter is now presented, at least so far as to bind this defendant. I am therefore of opinion, that the circumstances, and lapse of time raise a conclusive presumption, that this claim of Walter Clagett either never existed or has been satisfied. Whereupon it is decreed, that the injunction heretofore granted in this case be and the same is hereby made perpetual ; and it is further decreed that the defendant pay unto the plaintiffs their costs to be taxed by the register. (a) Robinson v. Tonge, 3 P. Will. 400 ; Gist v. Cockey, 7 H. & J. 139. Ex PARTE Street. — This petition was filed by John Street on the 3d of April 1806, under the act of 1785, ch. 72, s. 4, stating, that John Cook deceased had devised his land to be sold for the payment of his debts without authorizing any one to make the sale ; that the personal estate of Cook had been exhausted ; and that the peti- tioner, as his executor, had paid debts to a much greater amount than the assets which came to his hands. The real estate was accordingly decreed to be sold. After which the case having been brought before the court for further directions, as to the distribution of the proceeds of sale among the creditors : 17/// June, 1809. — Kilty, Chancellor. — The rule as stated by the auditor, of giving a priority to claims against the deceased to those which arise to the executor from an overpayment of the personal estate, was established by the late Chancellor. It has been departed from since, in cases where such overpayment was made on account of a. judgment or other lien ; even so far as to put tlie executor in tlie place of such creditor to the extent of his lien. In the present case the overpayment does not appear to have been made expressly on account of any such judgment ; but inas- much as there were claims on judgments paid by the executor exceeding the amount of the overpayment, and the other claims now exhibited are not entitled to any preference, it is thought proper to let the executor's claim come jn equally witlj others. WATKINS V. DORSETT. 53^ Upon this decree the plaintiffs demanded of the defendant pay- ment of their costs, which he failed or refused to pay. After which by their petition they stated, that they knew of no property which belonged to the defendant, excepting what might be reached by an attachment under the act of 1715, ch. 40, s. 7, and therefore prayed that such an attachment might be granted to them. \2th January, 1829. — Bland, Chancellor. — The solicitor of the plaintiffs having been heard in support of their petition, the pro- ceedings were read and considered. This petition exposes one of the still subsisting deficiencies of our code. It may be inferred from the general spirit of our laws, that all the property of a debtor, of every description, Should be liable to be taken by his creditors in satisfaction of their claims. By the common law, the personal property of the debtor, with the rents and profits of his real estate only, were liable ; but by sta- tutes derived to us from England, with some additional legislative enactments of our own, the real estate of a debtor has been sub- jected to be taken in execution by fieri fiacias, or attachment, and sold for the satisfaction of his debts in like manner as his personal property.(6) There are, however, still several kinds of property, which a debtor may hold, laying beyond the reach of his creditor's execution. Public stock, the stock of banks, of turnpike road companies, and the like, cannot be taken in execution under a fieri facias, nor can choses in action be made liable to creditors at common law,(c) otherwise than by an original or judicial attachment ;(rf) but the acts of Assembly, which direct the manner of suing out attach- ments, have in express terms treated them as process ancillary ta the judicial powers of the courts of common law only; have authorized the use of them by any individual inhabitant of the United States who may be entitled to sue here ; and have limited the extent of them to the taking of the lands, tenements, goods, chattels, and credits of the debtor in cases at common law only.(e) In England it is laid down, that choses in action, stock, debts, &c. are not liable to creditors ; and that they cannot be taken on a fieri facias, or under a sequestration from chancery, (6) 5 Geo. 2, c. 7; 1810, ch. 160 ; Ford v. Philpot, .'» H. & J. ,315; Barney v. Patterson, 6 H. & J. 182.— (c) Harding v. Stevenson, 6 H. & J. 267.— (rf) Ford v Philpot, 5 H. & J. 317.— (r) 1715, ch. 40; 1795, ch. 56 ; 1825, ch. 114. 534 WATKINS V. DORSETT. or be at all touched in equity for the benefit of creditors. (y) The reason, it is said, why choses in action, according to the general rules of the Court of Chancery, are not liable to execu- tion is, because the court takes notice, that the creditor has a method, by the ordinary rules of law, either to compel satisfac- tion, by seizing the person ; or, where the person cannot be taken, by proceeding to an outlawry and taking the lands as well as effects into the hands of the king, which, as of course, are then applied in satisfaction of creditors. (^) Now, as it is evident, that our process of attachment is, in many respects, equivalent to this mode of obtaining satisfaction by means of an outlawry, which was never in use here, and as this court must take notice of the remedy by attachment, it may well be held, that a creditor cannot be per- mitted to come here for relief in any case where he could obtain it by attachment at law. But, where a party cannot obtain relief at all, either by an ordinary execution, or by the extraordinary pro- cess of outlawry or attachment by reason of the peculiar situation of the property, or the equitable nature of the title to it, he may obtain relief by bill in equity.(/i) But the mode of obtaining relief by bill in chancery must neces- sarily be comparatively tardy and expensive ; and where the fund, thus pursued, consists of mere choses ni action, the delay may aiford to a fraudulently disposed debtor ample time to place it entirely beyond the reach of any process that can be issued by a court of equity ; so that, after the creditor had thus obtained a decree in his favour, he would be no nearer to relief than when he began. I have met with no evidence of any well settled practice shew- ing, that this court had conceived itself authorized to allow a party to sue out a judicial attachment, instead of any other execution, to obtain satisfaction of a decree. (i) Yet I can see no just reason why the process of attachment should not be so enlarged as to compre- (/) Dundas v. Dutens, 1 Ves. jun. 196 ; Guy v. Pearkes, 18 Ves. 196 ; Franckyin V. Calhoun, 3 Swan. 276 ; Pelham v. Newcastle, 3 Swan. 290 ; McCarthy v. Goold, 1 Ball & Beat. 389 ; Grogan v. Cooke, 2 Ball &. Beat. 233.— (sr) Eilgell v. Haywood, 3 Atk. 356.— (A) Edgell v. Haywood, 3 Atk. 352 ; Willis, Plea. 115 ; Hadden v. Spa- der, 20 John. 554 ; Ford v. Philpot, 5 H. &, J. 312. (f) RicKOTT V. HiGGiNSON. — 1720.— Subpcena for costs. Mr. Warman, sheriff of Ann Anindel county, conies into court and certifies, that Mr. Gilbert Higginson, the defendant, is not to be found in his bailiwick ; but, that he has left the subpana for costs in this cause with Mr. Pati'ick Sympson, attorney in fact for tlie defendant. Therefore ordered, that attachment issue in the same manner as is directed out of the courts of common law.— CAa/i. Proc.'Lib. P. L. fol. 568. ETCHISON t'. DORSE Y. 535 Lend all cases ;{j) and be allowed as a means of obtaining satisfac- tion of a decree in equity as well as of a judgment at common law.(/c) But this subject appears to have been, some years since, maturely considered by the legislature, who at that time armed the Court of Chancery with all such new and additional process as was then deemed necessary to an effectual exercise of its powers ;(Z) and the common law process of judicial attachment was not then given, (yn) I am therefore of opinion, that no such attachment can be awarded as prayed. Whereupon it is ordered, that the petition of the plaintiffs be and the same is hereby dismissed with costs. ETCHISON V. DORSEY. If, on a bill for a specific performance, a decree be passed directing the defendant to convey on the payment of the purchase money ; there cannot aftenvards be a decree ordering the plaintiff to pay the purchase money without a cross bill ; although such a reciprocal decree might have been passed in the first instance, had it been called for, without a cross bUl. This bill was filed on the 12th of September 1827, by Ephraim Etchison, Odle Wheeler and Caroline his wife, Mortimer Dorsey, Richard Dorsey, JYelson Morris and Eliza his wife, John Dorsey, Caleb Dorsey, and John Hood and Louisa his wife, against Mary (j) Yerby v. Lackland, 6 H. & J. 451 ; Harden v. Moores, 7 H. & J. 4. (fc) The process of attachment to enable a creditor to obtain satisfaction of his debt, appears, by the acts of 1647, ch. 3, and 1682, ch. 2, to have been engrafted into our code among the earliest formations of its judicial proceedings ; and has been in constant use, with few alterations, ever since. About the year 1705, in a report made by the then ex-chancellor. Lord Somers, to the House of Lords, it was among other things proposed, that " the debts that any defendant hath owing unto him may be attached in execution, in satisfaction for debt and damages recovered against him ; and a day shall be given to the debtor to appear, the court shall give judgment for the plaintiff to recover so much as shall be attached, 8cc., as in London upon a foreign attachment." — Parke's Hist. Co. Chan. 274. Since this decision was pronounced, it has been declared by the legislature, that an attachment may be laid upon debts due the defendant upon Judgments or decrees, 1831, ch. 321 ; and also that a fieri facias, or attachment, may be laid upon any inter- est which a defendant may have in the capital or joint stock of any coqioration, or in the debt of any corporation transferable upon the books of such corporation ; 1832, ch. 307. (0 17S5, ch. 72, s. 25.— (m) Shivers v. Wilson, 5 H. & J. 130. 536 ETCHISON V. DORSET. Dorsey, Jlchsah Dorsey, Hanson Dorsey, Henry Dorsey, and Septi-^ mus Dorsey, all of whom were infants. The bill states, that Rich- ard Dorsey sold to the plaintiff Etchison a tract of land containing ninety acres, delivered to him the possession, and received a part of the purchase money, leaving a balance of three hundred dollars still due ; after which Richard Dorsey the A^endor died intestate, leaving the plaintiffs Caroline, Mortimer, Richard, Eliza, John, Caleb, and Louisa, with the infant defendant's, his children and heirs at law ; that the plaintiff Mortimer had been appointed adminis- trator of the personal estate of his father the late Richard. Where- upon the plaintiffs prayed, that the defendants might be required to join in a conveyance of the land sold on the purchase money being paid, &c. The infant defendants answered by guardian and submitted to such decree as might be deemed equitable, &c. Ibth October, 1827. — Bland, Chancellor. — Decreed, that on payment by the complainant Ephraim Etchison of the sum of three hundred dollars with the interest due thereon to Mortimer Dorsey administrator of Richard Dorsey deceased, or on bringing the same into this court to be paid to him, being the balance of the purchase money due as stated in the bill ; that the other plaintiffs Odle Wheeler, &c., for themselves, and that^?m Dorsey, as guardian on behalf of the infant defendants, shall by a good deed to be exe- cuted according to law, convey to the plaintiff Ephraim Etchison, &c. Provided nevertheless, that liberty be and the same is hereby reserved to the infant defendants to shew cause according to the act of 1773, ch. 7. After which the plaintiff Mortimer Dorsey by his petition alleged, that the plaintiff Etchison had refused to pay the balance of the purchase money as required by this decree ; although the other parties then were and had always been ready to execute the con- veyance as directed. Whereupon he prayed, that Etchison might be ordered to pay, &c. 19^/i February, 1829. — Bland, Chancellor. — The aforegoing petition of Mortimer Dorsey having been submitted, the same^ with the other proceedings, were read and considered. On a bill for specific performance, where it appeared by the case admitted or established, that each party was bound to pay money or to perform some act for the benefit of the other, the court, by the ancient practice, could only decree in favour of the plaintiff^ leaving the defendant to obtain that to which he was entitled by a ETCHISON V. DORSEY, 537 cross bill. But according to the present course of proceeding, as well in England as in Maryland, the court may if called on dis- pense with a cross bill, and pass a decree upon the whole case, as well in favour of the defendant as of the plaintiff; as that the one convey the property, and the other pay the purchase money, (a) But a decree to redeem may result in a foreclosure without a cross bill to foreclose ; as if a bill filed by a mortgagor for redemption is by decree dismissed, because of the money not being paid at the time directed by the decree to redeem, that ope- rates as a foreclosure, and is equivalent to a decree for foreclo- sure ;(6) but the dismission of such a bill merely for want of prosecution has not that effect. (c) ■ It appears, that this case was submitted, and such a decree prepared and presented to the Chancellor as the parties thought proper to have passed without opposition or contest, which was accordingly signed. A decree might have been passed against the plaintiff commanding him to pay, as well as against the defendants ordering them to perform their part of the contract by conveying the property, as had been stipulated, on the payment of the purchase money. But this decree is, according to the ancient course, only in favour of the plaintiff and against the defendant ; and therefore this petitioner can only obtain the relief he asks by a bill in the nature of a cross bill, it being now entirely too late to alter the decree in any manner whatever. Whereupon it is ordered, that the said petition be and the same is hereby dismissed with costs. After which the other parties filed a bill, in the nature of a cross bill, against Ephraim Etchison, for the amount of the purchase money so ascertained to be due, and it was on the 28th of March 1829 decreed, that Etchison pay the balance then due, and upon the payment thereof, that the plaintiffs execute a conveyance to him for the land, &c. (a) Dorsey v. Campbell, ante, 356. — (b) The Bishop of Winchester v. Paine, 11 Ves. 199.— (c) Hansard v. Hardy, IS Ves. 460. 68 538 MULLIKIN V. MULLIKIIf. MULLIKIN V. MULLIKIN. A trustee, who had been appointed to make sale under a decree, ordered to bring the purchase money with the bonds and notes received or taken by him, into court, and displaced, because of his misconduct. A distributee can be allowed nothing until all sums for which he is liable as princi- pal or suret}' have been paid ; and his assignee takes subject to all equities to which he is liable. On a purchaser failing to pay the purchase money, the land may be resold at his risk under the court's equitable lien. This bill was filed on the 4th of December 1812, by Benjamin H. Mullikin, Richard D. Mullikin, Basil D. Miillikin, Jacob F. Watersj Basil Duckett and Sophia his wife, Margaret Mullikin, Ann Mullikin, and Kitty Mullikin, against Regnal Mullildn, Baruch Mullikin, John Waters, Jinn Maria Waters, and Rachel Waters, all of whom were minors. The bill states, that Belt Mullikin had died intestate seized of a large real estate which had descended to his children the plaintiffs Benjamin, Richard, Basil D. Mullikin, Sophia, Margaret, Jinn, and Kitty, who were of full age, and to his children the infant defendants Regnal and Baruch; and to his grand-children, the infant defendants, John, Jinn Maria, and Rachel, who were the children of the intestate's late daughter Martha H. Waters who had been the wife of the plaintiiF Jacob F. Waters ; that it would be for the benefit of all the representatives of the intestate to have the land sold, in order to make division of the proceeds thereof; but that a sale could not be effected with- out the interposition of this court. Whereupon the plaintiffs prayed, that a sale might be made ; and that they might have such other relief as the nature of their case might require. The defendants Regnal and Baruch having attained their full age, since the filing of the bill, put in their answer on the 6th of January 1817, and consented to a sale as prayed. And the other defendants, who were still under age, answered by guardian and admitted, that a sale should be made as prayed. Upon which on the 8th of January 1817 a decree was passed in the usual form, appointing Jonathan Meredith trustee to make the sale ; who, with his own consent, was on the 10th of March fol- lowing removed, and Basil D. Mullikin appointed in his stead. After which this trustee, having given bond with Baruch Mul- likin and Regnal Mullikin as his sureties, on the 4th of April 1821 filed his report, in which he states, that he had on the 5th of MULLIKIN V. MULLIKIN. 539 December 1817 sold a part of the estate to Benjamin H. Mullikin for the sum of $5163 75 ; that on the 19lh of October 1819 he had sold the residue of the estate to Edward E. Anderson, for the sum of $3000 ; that he had received a payment of $1798 71 from the purchaser Benjamin H. Mullikin, and held his notes for the balance ; and that he had received in payment from the purchaser Anderson the sum of $1060 ; and held his notes for the balance. These reported sales were finally ratified on the 14th of February 1825, and on the same day the auditor reported a distribution of the proceeds among those heirs of the late Belt Mullikin ; which was confirmed by an order passed on the next day, and the trustee directed to apply the proceeds accordingly. On the 12th of September 1827 the heiress Kitty, who had mar- ried Joseph Hoioard, with her husband filed a petition, alleging, that the trustee Basil D. Mullikin had received the whole or the greater part of the purchase money, and had not paid the petitioner Kitty or her husband the share awarded to her ; whereupon they prayed, that the trustee might be ordered to report his proceedings and to bring into court the proceeds of the sale made by him. Upon which he was ordered to report or shew cause ; and accord- ingly on the 26th of February 1828 he filed his report or answer, loosely stating the sums he had received and paid away, and that the securities taken from the purchasers had been deposited with his surety Baruch Mullikin, and further that he had applied for the benefit of the insolvent laws. To the sufficiency of this answer the petitioners filed their exceptions on the 29th of February 1828, in which they also pray, that Baruch Mullikin may be required to bring those securities into court; that the trustee be directed to bring in the money received by him ; and that he be displaced. On the same 29th of February the heiress Rachel with Thomas I. Hall her husband, and Harriet Waters as assignee of the heir John Waters, filed their petition, in which they state, that the share awarded to Rachel and John had not been paid by the trustee ; and pray, that they may be admitted as parties along with Howard and wife ; which was ordered accordingly. Zd March, 1828. — Bland, Chancellor. — On consideration of the petition of Howard and wife and the answer of the trustee Basil D. Mullikin thereto ; and of the objections to that answer, which objections being considered valid, it is ordered, that the said trustee Basil D. Mullikin be and he is hereby required to make a full and perfect answer to the said petition accordingly on 540 MULLIKIN V. MULLIiaN. or before the first day of April next. And it is further ordered, that the said Basil D. MulliJcin and the said Baruch Midlikin, his surety, bring into this court all the bonds or notes which were taken by the said Basil from the purchasers of the property in the proceedings mentioned to secure the payment of the purchase money ; or in case the same or any part thereof has been paid to them or either of them, that they bring into this court the whole amount of the money so received by them or either of them, on or before the first day of April next, or shew good cause to the con- trary : provided that a copy of this order, together with a copy of the said objections, be served on the said Basil D. Midlikin and Baruch Mullikin on or before the fifteenth instant. And it is further ordered, that the said Basil D. Mullikin be and he is hereby displaced, and Thomas S. Alexander is hereby appointed trustee in his stead wuth the same authority and subject to the same respon- sibility : provided that before he acts as such he shall give bond in the penalty of twenty thousand dollars as required by the said decree. The trustee Jilexander gave bond as required ; on the 26th of March 1828 Basil D. Mullikin filed a full answer ; on the 24th of September following the case, by order, was referred to the auditor ; and on the 20th of December Baruch MulWdn filed his answer in obedience to this last order. On the 5th of May 1828 the trustee Jilexander filed a represen- tation, stating, that the land reported to have been sold to Benja- min H. Mullikin was in fact purchased by him for the use of JYicholas Woodward, who had intermarried with the heiress Marga- ret, who had died after the confirmation of the auditor's report, by reason whereof the right to demand and receive her share had survived to her husband JYicholas ; that a considerable amount of the purchase money was yet unpaid, which JVicholas admitted. No cause was shewn by Benjamin H. Mullikin. And on the same 5th of May this trustee filed another represen- tation, stating, that much of the proceeds of sale had been misap- plied by the former trustee Basil D. Mullikin and was likely to be lost by his misconduct, and also by the misconduct of some of the other heirs, who were his sureties, or who were purchasers or the sureties of purchasers. 1th May 1828. — Bland, Chancellor. — The representations of the trustee, Thomas S. Jilexander, having been submitted, the pro- ceedings were read and considered. MULLIKIN V. MULLIKIN. 541 It appears, that much of the purchase money for which the real estate was sold is likely to be lost, by reason of the misconduct or negligence of some of those to whom proportions of it have been directed to be paid by the order of the 15th of February 1825. That order was certainly founded upon the presumption that no part of the purchase money had been or would be lost by the miscon- duct of any of the persons among whom it was to be distributed. It is very clear, that no one of these distributees can be allowed to receive any portion of the share awarded to him until all sums, that ought to have been paid by him, and for which he is in any way liable, have been satisfied. And I hold it to be no less clear, that every assignee of a distributee must take subject to all equi- ties to which such distributee was in any manner liable. Whereupon it is ordered, that the order of the 15th of February 1825, in so far as it directs the payment of any money unto Basil D. Mullikin, the former trustee, and Baruc/i Mullikin and Regnal Mullikin his sureties, and Benjamin H. Mullikin and Margaret Mullikin^ who died after the passage of that order and after havin"- been married to JVicholas Woodward, be and the same is hereby rescinded and annulled. On the 5th of May 1828, the trustee Alexander also represented, that the purchaser Anderson and his surety Benjamin H. Mullikin had not paid the purchase money ; upon which by an order of the 7th of the same month, they were ordered to bring in the balance due, or shew^ calise. And they having failed to bring in the money, the matter was submitted for the judgment of the court upon the cause shewn. 25th June, 1828. — Bland, Chancellor. — The petition and rep- resentation of the trustee, together w^ith the answer thereto of Edioard E. Anderson and Benjamin H. Mullikin, having been sub- mitted, the same, with the proceedings to which they relate, were read and considered. It appears, that the whole amount of the purchase money for the tract of land heretofore sold as mentioned in the said representa- tion has not been paid, and that for the amount still due the equitable lien held by this court yet subsists in full force and unimpaired. Whereupon it is decreed, that the trustee Thomas S. Alexander proceed to make sale of the land, heretofore sold to the said Edward E. Anderson, for the payment of the balance of the pur- 542 MULLIKIN V. MULLIKIN. chase money due thereon ; that the sale be at his risk ; and the terms thereof be for ready money payable on the day of its ratifi- cation. In all other, particulars the trustee is directed to conform to the decree, according to which and the subsequent orders he has given bond for the faithful discharge of the trust reposed in him. From this decree Anderson appealed, and filed a bond which was approved on the 29th of January 1829, but the appeal was some time after abandoned. On the 4th of November 1828, Daniel Kent filed his petition, in which he states, that by a deed bearing date on the 5th of May 1825, the heir Basil D. Mullikin conveyed his interest in the estate of the intestate to the heir Baruch Mullikin ; and that by a deed bearing date on the 18th of July 1827, the heir Regnal Mul- likin conveyed his interest in the intestate's estate to the heir Baruch Mullikin, who having thus, by assignment and descent become entitled to three-tenths of the intestate's estate, by a deed bearing date on the first day of May 1828, assigned the same to the petitioner ; and that he, this petitioner, is a bona fide purchaser for a valuable consideration without notice. Whereupon he prayed, that the shares of the intestate's estate so assigned to him might be directed to be paid to him accordingly. These three several deeds of assignment were each of them acknowledged and recorded as required by law ; and were besides proved to have been exe- cuted by the grantors. It appears, that Basil D. Mullikin applied for the benefit of the insolvent laws on the 30th of May 1825 ; that Regnal Mullikin applied for the benefit of the insolvent laws on the 18th of May 1827 ; and that Baruch Mul- likin made a similar application on the 8th of May 1828 ; but it is admitted that Benjamin H. Mullikin never made any such application. Whereupon it was ordered, that the matter stand for hearing provided a copy be served, &c. After which it was brought before the court and the solicitors of the parties were fully heard. 4^A March, 1829. — Bland, Chancellor. — There is no principle of equity or justice upon which Basil D. Mullikin, Baruch Mulli- kin, Regnal Mullikin, Benjamin H. Mullikin, or JYicholas Wood- ward, or any one claiming under them or any or either of them, by virtue of any assignment or transfer made since the institution of this suit, can be allowed to receive any thing from this court until they have paid or brought in all sums of money for which MULLIKIN V. IVIULLIKIN. 543 they are liable as principals or sureties, or until all the other heirs of the intestate have been fully satisfied and paid from the proceeds of the sale of the intestate's estate now in the hands of the court, or under its control for the purpose of distribution. Whereupon it is ordered, that this case be and the same is hereby referred to the auditor with directions to state an account accord- ingly, distributing the proceeds of the sale of the intestate's estate now remaining under the control of the court ; first among the heirs of the intestate who have not been paid, or in so far as they have not been satisfied ; and the balance if any to the petitioner Daniel Kent, as the assignee of Basil D. Mullikbiy Baruch Mullikin, and Regnal Mullikin; and to Benjamin H. Mullikin and J\'icholas Woodward : provided it shall appear, that they have each of them paid or brought into court all sums of money, being portions of the said intestate's estate which they or either of them as trustee, pur- chaser or surety ought to have paid or brought into court, or for which they or either of them is liable because of its not having been so brought in or paid. But as there has been an appeal from the decree of the 25th of June 1828, directing the land purchased by Anderson to be sold for the payment of the purchase money due from him, the disposition of that amount must be suspended until that appeal has been finally determined ; and consequently so much of this case as is affected by that appeal cannot be embraced in the statements contemplated by this order. After w'hich the auditor reported a distribution of the proceeds as directed, which was confirmed by an order of the 4th of May 1829 ; from which Kent appealed ; and, at June term 1831, the order was aflSrmed by the Court of Appeals. 544 ALLEN V. BURKE. ALLEN V. BURKE. The act of 1820, ch. 161, applies only to cases in which it remains to pass a final decree. "Where the suit abates after a final decree it may be revived by a subpcBna scire facias. The form of the writ, and the mode of proceeding. This bill was filed on the 2d of March 1824, by Richard Allen against Micajah Burke and Jinn his wife, and Williani Comegys, to foreclose certain mortgages which had been given by the defendant Ann, while sole, to the plaintiff on a certain parcel of ground and its rents and profits, of which she held the remainder in fee simple, after the expiration of a lease for years held by the defendant Comegys. The defendants answered : after which the defendant Ann died ; and the suit was revived against Elizabeth Burke, her daughter and heir. Commissions were then issued and testimony taken and returned ; upon which the case was heard ; and on the 29th of April 1828 it was decreed, that the mortgaged property be sold ; and that the defendant Comegys pay to the plaintiff the sum of $846 97, &c. After which Sarah Allen, by her petition, stOfted, that the plain- tiff Richard Allen had died since the passing of the decree ; and that she had obtained letters of administration with the will annexed on his personal estate. Whereupon she prayed, that the decree might be revived against the defendants ; that subpoenas might be issued against them ; and that she might have such other and further relief in the premises as the nature of her case might require. Upon which subpoenas, in common form, were issued without any special direction or order from the court ; which hav- ing been returned summoned, the petitioner moved, that the decree might be ordered to stand revived. V2th February, 1829. — Bland, CJiancellor. — The motion of the petitioner Sarah Allen, that the decree should be revived having been submitted on her part, and no cause having been shewn to the contrary, the proceedings were read and considered. The act of 1820, ch. 161, it is evident, was intended to provide a course of proceeding by which any party who had a right to revive a suit that had abated, in the manner specified, before a final decree, might have it revived in a mode less expensive and dilatory than in the common way by a bill of revivor. It is manifest, that the general object of that law was to shorten and envigorate the ALLEISi V. BURKE. 545 proceedings in cliancciy. It certainly cannot be considered as embracing any cases of abatement after a decree ; because its phraseology expressly refers to cases which have not been brought to a termination, and to suits where " such final decree as to richt shall appertain," remains to be made ; and also, because it could not have been the intention of the legislature to provide a new mode of proceeding more expensive and less energetic than one already well established ; as is' the case in suits abating by the death of a party after a decree. According to the course of proceeding in chancery, where a party dies, or a female plaintiff marries, after the final decree has been enrolled, such decree and proceedings must be revived by a suhpana scire facias. Which mode of reviving a suit, however, can only be pursued by or against the heir, the legal representa- tives, or those who are privy in blood or contract to the deceased party ; and who, as such, may be benefited or bound by the decree : but they are precluded from going into its merits ; and upon the same principles the merits of the decree cannot be questioned even on a bill in nature of a bill of revivor by an assignee or a devisee. (a) If the party summoned fails to shew cause, or the cause shewn should be deemed insufficient, he may, if required, be examined on interrogatories as to any matter necessary to the proceedings. But where there have been any proceedings subsequent to the decree, this process will be ineffectual, as it revives the decree only and nothing more. (6) It is said, that in England it has become the practice to revive in all cases indiscriminately by bill, because of its having become unusual to enroll decrees ; but in Maryland all decrees are considered as enrolled so soon as they are signed ;(c) and consequently, a bill of revivor, or this mode of reviving a suit, which has abated after a decree, by a subpcena scire Jacias, must be considered as the most regular, if not in fact the only modes by which a suit can properly be revived in this court, (c/) A subpcena scire facias may be obtained by petition, and must be served like a subpcena to answer. On its appearing by the return, that the process has been made known, and the party regularly summoned, if no cause be shewn to the contrary, nor any plea in (a) Dunn v. Allen, 1 Vcrn. 28.3, & 426 ; Owen r. Curzon, 2 Vern. 2.37 ; Clare v. VVordell, 2 Vern. 548; MinshuU v. Lord Mohun, 2 Vern. 672.— (6) IMitf. Plea. 70. (c) Hollingsworth v. McDonald, 2 H. & J. 237.— (rf) Croster v. Wister, 2 Rep. Chan. 67 ; Wharam v. Broughton, 1 Ves. 181 ; White i'. ILipvardj 2 Ves. 461 ; Fallovvg 0. Williamson, 11 Ves. 307. 69 546 ALLEN- V. BURKE. bar, &c.(e) the court will, without requiring any appearance to be entered, on motion, at any time after the first four days of the term to which the party has been returned summoned, order the decree to stand revived. (y) The court of chancery in this, as in various other particulars, regulates its proceeding by analogy to the course of the common law ; according to which, where after judgment a party dies, the judgment maybe revived by a scire facias, on which, if returned made known, and no cause is shewn, the judgment is at once ordered to stand revived without an appearance. So in chancery. But in this case nothing more than a common subpcena to answer has been issued. No subposna scire facias has been as yet either asked for, issued or made known. Therefore it is Ordered, that the said petition of the said Sarah Allen stand over, with leave so to amend it as to pray for a subpoena scire facias., and until such process can be issued and returned to the term next after the same shall have been issued. The petition was amended as suggested by this order, and a subpcena scire facias, in the following form, was issued : " Maryland, set : — The State of Maryland, to Micajah Burke, Elizabeth Burke, and William Comegys of Baltimore county, Greeting : You are hereby commanded, that all excuses set apart you personally be and appear before tlie High Court of Chancery, to be held at the city of Annapolis on the second Tuesday of March next, to shew cause, if any you have, why a decree passed by the said court on the 29th day of April 1828 against you, at the suit of the late Richard Mien, should not stand revived against you at the suit of Sarah Allen, administratrix with the will annexed of the said late Richard Allen, as prayed by her petition in the said court exhi- bited. Hereof fail not, as you will answer the contrary at your peril. Witness the Honourable Theodorick Bland, Chancellor, this 16th day of February, Anno Domini, 1829. " Test, Ramsay Waters, Reg. Cur. Can.^^ The sheriff on the 6th of March 1829, returned the writ thus endorsed : " Summoned Comegys, summoned Micajah Burke and Elizabeth Burke. '''^ Upon which the matter was again brought before the court. 18^/i March, 1829. — Bland, Chancellor. — It appearing by the return of the subpcena scire facias, that the said defendants have (c) Comber's Case, 1 P. Will. 767.— (f) 1 Harr. Pra. Cha. 670 ; 2 Harr. Pra. Cha. 191 ; 2 Fowl. Exch. Pra. 301, 305, 419. GRIFFITH V. BRONAUGH. 547 been summoned, and no cause having been shewn, it is tlierefbre Ordered, that the said decree stand revived to all intents and pur- poses whatever in favour of the said Sarah Allen, administratrix with the will annexed of the said late Richard Allen, against the said defendants Micajah Burke, Elizabeth Burke, and William Comegys, as prayed by the petition of the said Sarah. GRIFFITH V. BRONAUGH. The act of 1820, ch. 161, only gives a new mode of proceeding in certain cases in place of a proper bill of revivor. After a decree to account, or a final decree a defendant may reviv^e the suit ; but in general he cannot revive it in any other case. In an injunction case, it may be ordered, on petition of the defendant, that the repre- sentatives of the late plaintiff, on a copy of the order being served on them, pro- ceed to revive the suit on or before a certain day, or that the injunction be dis- solved. If such representatives are numerous, widely dis])ersed, unknown or nonresidents, it will be sufficient to have it entered on the docket, that they come in and revive before the end of the tlien next term. This bill was filed on the 3d of July 1820, by Samuel G. Grif- fith against John W. Bronaugh, to obtain an injunction to stay proceedings at law on a judgment recovered by the defendant, Bronaugh, against the plaintiff, Griffith. The injunction was granted as prayed. After which, in December 1820, the plaintiff, Samuel, died intestate, and administration was granted on his per- sonal estate to Luke Griffith of Harford county : upon which the defendant by his petition, filed on the 17th of November 182J, prayed, that he might be made a party, &c. ; and it was ordered, that he be summoned accordingly. Afterwards, Luke Griffith not having appeared, the defendant, by his petition filed on the 11th February 1829, prayed, that Luke Griffith might be ordered to appear and cause this suit to be revived, or that the injunction be dissolved. 13/^ February, 1829. — Bland, Chancellor. — It appears, that this defendant, by his petition of the 17th of November 1821, suggested the death of the plaintiff, and prayed that his adminis- trator might be made a party, evidently with a view to have the suit 548 GRIFFITH V. BRONAUGH. revived in the mode prescribed by the act of 1820, ch. 161. That act, however, only gives a new and more expeditious mode of pro- ceeding to those who could, independently of its provisions, revive by a proper bill of revivor. It is a general rule, that where a suit abates, by the death of a party, before the final decree, the defend- ant cannot have it revived ; since no one can be compelled to commence, renew, or revive a suit against another. After a decree to account, by which both parties are made actors, or after a final decree, a defendant may revive ; because he may have an interest in the execution of the decree. The good sense of the rule is, that in every case where a defendant can derive a benefit from the further proceeding, he may revive. (a) But it is very clear, that this is not such a suit as this defendant can be allowed to revive. The only object here, the suit having been terminated by abate- ment, is to have the injunction dissolved so as to enable this defend- ant to proceed at law. Which, according to the course of the court, may be attained by a petition, as in this instance, praying that the administrator of the deceased plaintiff may revive within a stated time, or that the injunction stand dissolved. For, although in strictness the whole proceedings are abated by the death of either party, yet the injunction, being a judgment of the court, continues in full force until it has been dissolved by the court itself. (6) Whereupon it is ordered, that the petition of the said defendant, filed on the 17th of November 1821, be and the same is hereby dismissed with costs. And it is further ordered, that the injunc- tion heretofore granted in this case be dissolved after the 14th day of March next, unless the said Luke Griffith, administrator of the late Samuel G. Griffith, before that day proceed to revive the said suit. Provided that a copy of this order, together with a copy of the said petition filed on the 11th instant, be served on the said Luke on or before the 2d of March next. Upon a copy of this order the sheriff of Harford county made return on oath, that Luke Griffith therein named resided out of the State of Maryland. Upon which the case was again brought before the court. (a) Lord StowcU v. Cole, 2 Vern. 219 ; Williams v. Cooke, 10 Ves. 406 ; Hor- wood V. Schmcdcs, 12 Vcs. 311.— (6) Gilb. For. Rom. 108; iNewl. Chan. 229; Eden. Inj. 93. GRIFFITH V. BRaNAUGH. 549 19tk March, 1829. — Bland, Chancellor. — It is a general rule of this court, that the legal representatives of a deceased party must be served with notice to revive the suit within a limited time before the injunction can be dissolved. (c) But this rule must be relaxed to meet the justice of the case, and accommodated to the exigency of circumstances. (e) Where it was shewn, that the legal representatives of the deceased were numerous, much dis- persed, and not well known, and that it would be difficult, if not impossible, to serve any order upon them ; it was on motion ordered, that unless the representatives of the complainant should come in before the end of the next term and cause the suit to be revived, the injunction should stand dissolved. (y) In the case under consideration it appears, that the order could not be served "within the State ; on consideration of which and the length of time that has elapsed since the death of the late plaintiff, I deem this a case in which it becomes necessary to depart from the general rule. Whereupon it is, on motion of the defendant by his solicitor. Ordered, that unless the said Luke Griffith, or some other legal representative of the said late Samuel G. Griffith, to whom the light belongs, shall come in before the end of the next term and cause this suit to be revived, the said injunction heretofore granted shall stand dissolved after that time. Under this order the bill was on the 30th of September 1829 dismissed ; but being soon after reinstated by consent, Luke Grif- fith, the administrator, was admitted as plaintiff in place of his intestate, and Bronaugh, the defendant, filed his answer, to which the plaintiff put in a general replication, and a commission issued to take testimony, which having been returned without any having been taken, the case was set down for final hearing ; and on the 18th of January it was decreed, that the injunction be perpetual. (c) Duke of Chandos v. Talbot, Select Ca. Chan. 24.— (e) Eden. Inj. 40, 66; 1 Fow. Ex. Pra. 287.— (/) Carter v. Washington, 1 Hen. & Mun. 203 ; Kenner v. Hord, 1 Hen. & Mun. 204. 550 SNOWDEN V. SNOWDEN. SNOWDEN V. SNOWDEN It is suflScient; tliat the answer of an adult defendant be sworn to before some judge or justice of the peace within the State. It was formerly the practice to send the commission to four, but now it is sent to only one commissioner to appoint a guardian and take the answer of an infant defendant within the State. If a person appointed as such a guardian accepts the trust, he may be compelled to answer. But if the infant defendant be out of the State, the commission to appoint a guardian and take his answer must be sent to three persons. The express provisions of a constitutional act of Assembly cannot become obsolete, and are of superior authority to any usage or adjudged case whatever. If a defendant be not in fact a nonresident, the order of publication against him is a nullity. This bill was filed on the 28th of February 1829, by Thomas Snowden jun'r, John Contee and ^7in Louisa his wife, Albert Fair- fax and Caroline E. his wife, Timothy P. Andrews and Emily R. his wife, against Richard JV. Snowden. The bill states, that the plaintiffs were tenants in common with the defendant of a tract of land, which would not admit of partition without injury or loss ; that the defendant is an infant ; and that he " is a citizen of Ann Arundel county, but is at this time in the State of New York." Upon which they prayed, that the land might be sold to effect a division ; and that a subpoena might issue against the defendant. The plaintiffs sued out a commission in the usual form directed to Benjamin Allen alone, of the State of New York, authorizing him to appoint a guardian, and to take the infant's answer by such guardian. Which he did, and returned the answer accordingly. The whole proceeding being in precisely the same form as if such a commission had gone to one commissioner only within the State, to obtain the answer of an infant defendant residing here. iSth April, 1829. — Bland, Chancellor. — On adverting to the act of Assembly in relation to this malter,(a) I deemed this pro- ceeding erroneous : whereupon the plaintiffs on the 15th instant filed their petition praying for a commission to three persons therein named, and again submitted their case upon the notes of their solicitor, which with the proceedings were read and considered. According to the English course of proceeding it would seem to be a general rule, that the defendant must appear in person and swear to his answer before one of the masters in chancery. This (a) 1797, ch. 114, s. 5. SNOWDEN V. SNOWDEN. 552 was greatly inconvenient to defendants who resided at any distance from the place where the court was held. Hence at first as an indulgence and by a special- order, but now and for a long time past, where a defendant resides more than twenty miles from Lon- don, or is unable to travel, it is a matter of course to issue a dedi- mus potestatcm to take his answer. (6) And the four commission- ers, to whom the dedimus is directed, are named by the parties, and approved in like manner as commissioners for takinsr testi- mony ; any three or two of whom are to take the answer.(c) With regard to an infant defendant, however distant within the kingdom he may reside, he must be brought in ; because the court must see, from inspection and observation, that he is an infant, for whom it is necessary, that a guardian should be appointed by whom he may answer. But if the infant be abroad, or unable to attend, a commission must go to appoint a guardian and take his answer by such guardian. The dedimus or commission, in such case is similar ; the four commissioners are appointed in the same way as ; and it is executed in all respects like, that which goes to take the answer of an adult defendant who resides more than twenty miles from London. ((f) The practice in ]\Iar)^-land is different. I have met with no evi- dence, that it ever was at any time, either before or since our revolution, the practice of this court to have the defendant actually brought in merely to swear to his answer before the Chancellor or the register of the court. It appears to have been always the prac- tice here for the defendant to swear to his answer before a judge or a justice of the peace, which when thus authenticated and filed, has been uniformly received and dealt with as an answer. (e) This practice is admitted on all hands to be exceedingly convenient, and I have never heard of the slightest evil arising from it. But if a defendant neglects or refuses thus to answer, he may be attached and committed to close custody until he does answer, (y) (6) 1 Harr. Pra. Chan. 283; 1 Newl. Chan. 12-f— (c) 1 Harr. Pra. Chan. 288. (d) Marlborough v. Marlborough, 1 Dick. 74 ; Jongsma v. Pfiel, 9 Vcs. 357; Tap- pen V. Norman, 11 Ves. 563. — (e) Brice v. Alexander, MS. Chan. Proc. lib. W. K. No. 1, fol. 43 ; MackaU v. Morsell, MS. Chan. Proc. lib. W. K. No. 1, fol. 223. (/) Cooper V. Cooper, 1788, MS. Chan. Proc. lib. S. H. H. let. B. fol. 351. Bowie v. Mockbee. — December 1780. — Rogers, Chancellor. — On motion of the complainant's solicitor, ordered, that the defendant stand committed to close custody of the sheriff of Prince George's county, to remain in custody of the said sheriff until the said defendant shall put in and file a good and sufficient answer in this case, and pay the costs of the said attachment of contempt issued against him in the cause aforesaid. — Chan. Proc. Lib. No. l^fol. 295. 552 SNOWDEN V. SNOWDEN. If an adult defendant reside abroad or beyond the jurisdiction of the court it has been the practice, ^vhere he himself wishes or is willing to answer, to issue a commission, on petition, for taking his answer io four commissioners. And the course of proceeding in such case appears to be substantially similar to the English mode of obtaining the answer of a defendant who resides abroad or at a greater distance than twenty miles from London, (g) It would seem, that, according to the course of proceeding in the English Court of Chancery, there may be a material distinction between a guardian ad litem of an infant defendant, and a guar- dian having no other concern with the case than merely to answer the bill. The guardian ad litem must not only answer the bill, but is bound to inform himself of all circumstances, and to make as good a defence for his ward as the nature of his case will admit ; while on the other hand, as it would seem, the duty of a guardian to answer only, extends no further than merely to the making and filing of an answer. (A) But however this may be in England, I have met with no clear unequivocal evidence of any such distinc- tion ever having prevailed here.(i) In all cases in this court the guardian of an infant defendant, whether appointed by a special order, or under a commission, has always been considered and treated as a guardian ad litem, appointed for the purpose of answering and defending the suit, and whose duty it is not only to answer the bill, but to make the best defence he can according to the circumstances, for the benefit of his ward ; and this appears to have been recognised as the duty of such a guardian by our acts (g) Hornby v. Pemberton, Mosely, 57; Prout v. Slater, MS. 3d April, 1799, Chan Proc. lib. S. H. H. No. 7, fol. 25 ; Chan. Proc. 1761, lib. D. D. No. J. fol. 59. (A) 1 Newl. Chan. 105, 138; 2 Newl. Chan. 152; 1 Hair. Pra. Chan. 70S. (i) Chapman v. Barnes. — This was a creditor's bill filed against the heir and administrator of the late Richard Barnes to have his land sold for the payment of his debts. The bill stated, that Mary E. Barnes, the heir of Richard her father, was an infant, and prayed a subpcena against her as well as against the administrator ; a sub- poena was issued accordingly, and aftenvards a commission was issued in the usual way to take the answer of the infant, under which her answer was returned and filed on the 24th of February 1814. I9th March, 1S14. — Kilty, Chancellor. — A motion was made by counsel for the appointment of a guardian to defend for the infant Mary Elizabeth Barnes, according to the practice in England. The Chancellor is not apprised of its having been done in this State ; but such a practice appearing to be equitable and probably necessary, it is hereby ordered, that John Barnes, of Charles county, be and ho is hereby appointed guardian for the said Mary Elizabeth Barnes, to defend on her behalf the said suit. SNOWDEN V. SNOAVDEN. 553 of Assembly in relation to this matter. (J) It appears to have been formerly usual, where the infant resided within the State, either to have him brought into court by the messenger, if able to attend, and a guardian assigned him, by whom he was to answer, (^') or to issue a commission to four^ or a plurality of persons, any three or two of whom were authorized to appoint a guardian and take his answer by such guardian in exact conformity to the Eng- lish practice. (/) If it appears upon the face of the proceedings, or upon enquiry into the fact, that the defendant is an infant, the court cannot pro- ceed without a guardian to answer and defend for him ;{in) and for that purpose the court may either have him brought before it, or allow a commission to be issued, w^hich is now much the more usual course ; for, although there can be no doubt of the power of the court to have an infant defendant brought in from any part of the State ;(n) yet it is rarely found to be convenient, or necessary to do so merely for the purpose of assigning to him a guardian ad litem. If a guardian so appointed refuses to act, or after accept- ing the trust dies, another may be appointed in his stead by special order or under a commissiQn.(o) But although a person appointed guardian ad litem cannot be compelled to take upon himself the trust ; yet if he does accept it, he may be compelled by attach- ment to appear and answer. (/>) For a long time past it has been {j) 1785, ch. 72, s. 1 ; 1797, ch. 114, s. 3.— (/t) Eyles v. Le Gros, 9 Ves. 12; HiU V. Smith, 1 Mad. Rep. 290.— (Z) Gist v. Gist, 3d November 1798, Chan. Proc. lib. S. H. II. No. 7, fol. 48, 52 ; JMerriweather v. Hood, MS. June 1800 ; McCoy v. Springer, MS. October 1800.— (m) Roberts v. Stanton, 2 I\Iun. 133.— (n) Dulany v. Frazer, MS. per Hanson, Chancellor, 19tli November, 1792. Griffith V.Davis. — 1789. — Rogers, Chancellor. — On motion of complainant's counsel, ordered, that the messenger bring into court the body of Henrietta Davis, the infant, on the fourth day of next court, she being heretofore returned by the sheriff of Montgomery countj', summoned to appear in this cause, and attachment having been awarded on her failure to appear on the said summons. — Chan. Proc. lib. S. H. H. let. C. fol. 61. (0) 2 Newl. Chan. 1.55; "Wilson i'. Bott, 1 Pric. 62; Perkins r. Hammond, Dick. 287; Smith v. Marshall, 2 Atk. 70; McMechen v. Evans, MS. 3d November 1S17. 0>) Taylor v. Durben, 1787, Chan. Proc. lib. S. H. H. let. B. fol. 41. Perkins v. Cleaves. — February, 1790. — Hansox, Chancellor. — Rule that Doc- tor William Gleaves shew cause to this court on the first of April next, why an attachment should not issue against him for a contempt in refusing to answer on behalf of the infant to whom he was appointed guardian ad litem, by a commission issued by this court and returned. No cause having been shewn, it is ortlered that attachment issue against William Gleaves to answer. See. — Chan. Proc. lib. S. H. H. let. C.fol 582. 70 554 SNOWDEN V. SNOWDEN. considered as the settled practice, to let a commission go to one commissioner only within the State to appoint a guardian and take the answer of aji infant defendant ; which has been found to be so cheap and convenient a method, that I have never known a com- mission, in my time, to be issued for that purpose to more than one commissioner within the State. (9) In England, when an infant defendant resides out of the juris- diction of the court, a commission may be sent abroad to appoint a guardian and take his answer, and on a supplemental bill being afterwards filed the same guardian may be authorized to answer for him.(r) But no instance has been shewn, prior to the year 1797, in which a commission has issued from this court, to obtain the answer of an infant defendant beyond the jurisdiction of the court, to a single commissioner only. In the case cited, (s) the bill was filed to obtain a conveyance of lands in specific performance of a contract ; it was stated in the bill, that the infant defendants lived in Adams county in Pennsylvania ; and suhpcenas were prayed generally. Upon which a commission was, on the 14th of December 1802, issued to one commissioner only in Frederick county in this State, which is conterminous with Adams county in Pennsylvania ; who in pursuance thereof appointed a guardian, stated to be of Frederick county, by whom the answers were taken and returned. The inference from this case is, that it was believed to be more convenient thus to send the commission to one commissioner in Frederick than to four in Pennsylvania. Such appears to have been the understanding of the profession as to the practice when the legislature declared, that in cases of partition, the Chancellor on the complainant's motion may direct a commission to issue unto three persons such as he shall approve, authorizing them or any two of them to go to the infant and appoint a guardian for the purpose of answering and defending the suit, and authorizing them likewise to take the answer and return it to the court. (^) Which provision was afterwards extended to cases where all the persons reside out of the State. And it has been also provided, that in case of lands in this State descending to minors residing out of this State, on a bill filed by the prochein ami of any such minor, a commission may be issued to three per- ((j) Brown v. Brooker, MS. October 1800, Uc. &c.— (r) Jongsma v. Pfiel, 9 Ves. 357 ; Lushington v. Sewell, 6 Mad. 28.— (s) Ditfendall D.Diffendall, Chau. Proc.lib. S. H. H. No. 7, Ibl. 148, 155.— (0 1797, ch. 114, s. 5. SNOWDEN V. SNOWDEN. 555 sons in the State where the infant resides, authorizing them or any two of them to appoint a guardian to answer and to return his answer.(M) In these particulars therefore the practice of the court has been estabhshed by positive legislative enactment. The course is prescribed in cases where it is said to have been doubtful whether or not there was any method of proceeding whereby the object might be attained. The mode thus pointed out, cannot be con- sidered as an addition to any antecedent one, since it is expressly declared, that it was prescribed in order to remove all imcer- tainties upon the subject ; and not for the purpose of introducing a new form of proceeding in addition to an existing one. It does not give a cumulative remedy, but unalterably settles and defines a previous ambiguous practice, so that the court might safely and readily exercise its then existing powers. Taking this view of the subject it clearly follows, that the court can have no authority to pursue a course of proceeding different from that which has been thus laid down by the legislature. Any prac- tice established by the court itself may be altered for good rea- sons ; or by usage such practice may, and in many instances has gradually glided into a new or different course ; but the positive enactments of the General Assembly can never be disregarded. By an English statute enacted in 1346, (i') it was declared, that the justices of gaol delivery should take an oath before the Chan- cellor, &c. yet no such oath is now taken, and the statute is con- sidered as obsolete ',{'w) and by an act of Parliament, passed in 1416, (.r) it was declared, that no one should sue out a suh- pcena in chancery until he had given security for costs in case he failed to sustain his bill. It is said, that this statute has in England by degrees grown out of use, and is now entirely van- ished. (j/) And against a statute passed in the year 1705, (z) a practice of no more than seven years was allowed to prevail. (g) A statute passed in 1413,(6) directed, that none should be elected members of parliament who were not at the time resident of the place from which they were returned. This is another instance wherein the principle of desuetude has been avowedly set up against an unrepealed legislative enactment. (c) And our own (w) 1818, ch. 193, 9. ll&l2;lS31,ch. 311, s. 8.— (w) 20 Edw. 3, c. 3.— (it)) Jurisd. Court Chan. 13.— (x) 15 Hen. 6, c. 4.— (?/) 1 Ilarr. Pra. Chan. 200; 2 Com. Dig. 371.— (r) 4 & 5 Anne.— (ff) Regina r. Ballivos dc Bewdley, 1 P. Will. 223 ; Money V. Leach, 3 Burr. 17-55,— (i) 1 Hen. 5, c. 1.— (c) 2 Hall. Mid. Ages, 156. 556 SNOWDEN V. SNOWDEN. act,((/) which positively prohibits clerks and registers from suffer- ing the papers and records to be taken out of their offices, appears to have bqen so long and so generally disregarded as to have fallen into oblivion. (c) These precedents would seem to sanction the position, that a positive legislative enactment may be virtually repealed by a long, general, and uninterrupted course of practice. But they are pre- cedents which I should feel a great repugnance to adopt and enlarge upon. I hold it to be my duty to treat the acts of my pre- decessors wath respect ; and ^ yield implicit obedience to my superiors ; yet I cannot lose sight of the sphere assigned to the judiciary, and allow myself, by any suggestion arising from the case, or by following any lightly considered precedent, to overstep the limits constitutionally prescribed to the judicial department to which I belong. No judge or court, either of the first or last resort, can have any right to legislate ; and there can be no differ- ence between the power to declare an act of Assembly obsolete, and the power to enact a new law. The power to repeal and to enact are of the same nature. I shall therefore always consider an express provision of a constitutional act of Assembly as an autho- rity superior to any usage or adjudged case whatever. The first enactment upon this subject(y") is strictly and literally applicable to the taking of an answer of an infant abroad in a par- tition case, such as this is ; and that act has, as it would seem, been since much extended. (of) Hence I hold myself imperatively (f/) 1747, ch. 3,s. 10.— (e) 1332, ch. 302, s. !.— (/) 1797, ch. 114, s. 5.— (g) 1S18, ch. 193, s. 11 8c 12. BuRD r. Grf.enleaf. — It was objected in this case, that all the parlies were not before the court. Publication ajrainst the infant heirs of a defendant had been made according to the act of 1799, ch. 79, s. 1 &, 4, instead of serving a subpccna upon them. February, 1S06. — Kiltv, Chancellor. — It appears, that the general acts of Assem- bly for regulatin:; the chancery practice do not extend to infants, but that particular acts have been passed for the purpose of binding them ; as in the cases of contracts by their ancestors, mortgages, debts, partition, &c. The first section of the act of 1795, ch. 88, did not, as the complainants have contended, extend to infants, but pro- vided for publication against persons of full ago. The act of 1799, ch. 79, put infants on the same footing with other defendants, excepting reserving at all events the liberty of appearing within eighteen months. This section is not restricted to laws within the first section of the same act, but is applicable also to the first section of the act of 1795, or any other general act. Let us examine the intention of the two acts. The act of 1795 permits an appearance and re-examination within eighteen months, and the fust decree is of course not final. The reason of which might be, that llierc could be no certainty of the absent defendant having seen the publication. SNOAVDEN V. SNOWDEN. 557 bound by the legislative rule thus laid down. But precedents have been adduced to shew, that this legislative rule has become obso- lete, or that another and equally efhcacious parallel mode of pro- ceeding had been in force, and is now in use. All the precedents, I have seen, of commissions for taking answers abroad, are tliose of adult defendants ; in all of which the commission, as in Eng- land, was directed to Jour commissioners. I have been referred to no example of a commission to take the answer of an infant defendant who resided in a foreign country or any other State of our Union ; nor have I met with any. But prior to and about the year 1797, it was the practice, as well in cases of infant defend- ants within, as of adult defendants out of the State, to send the commission to four or at least a plurality of commissioners ; and hence the first legislative enactment, in relation to this matter,(/i) cannot be regarded as in any sense leaving an old and parallel practice in full force ; since it was the practice in all cases to send the commission to a plurality of commissioners. The cases that have arisen since the passage of that act, can therefore only be regarded as evidence of a departure from the legislative rule, and not as proof of a coexisting parallel practice. There have been only four cases adduced as shewing a departure from the directions of the act ; and all of them are cases of commissions directed to one commissioner only, in the District of Columbittj to take the answers of infants resident there, [i] All of those cases manifestly appear to have passed sub silentio ; and, I can readily conceive how easily such a proceeding, which had become the established mode of obtainins: an answer from an infant defendant within this State, should have been pursued as a correct way of getting an answer from an infant defendant residing in Washington county of the District of Columbia, which had formerly been a part of this The act of 1799 makes the first decree final, provided the subpana is proved to be served. There is no doubt a considerable difficulty in making this service and prooi", where the party is out of the State ; but the complainant, in any case, lias his choice of tlie two modes of proceeding. The difficult^' of sen-ing tlie subpoena is greater as to the infants. And the reason does not apply to them, for after such service, the eighteen months is still allowed to them. The act of 1793 allows the publication, which by the fourth section of the act of 1799 applied to the infant defendants in this case. The order may be considered as made under either act, according as the sub- pczna might or might not be served, and the service might have been directed with that view. (h) 1797, ch. 114, s. 5.— (t) Low v. Dawson, MS. 30th September, 1818 ; Bur- gess V. The Bank of Columbia, MS. 13th April 1820; Law ». Law, MS., 6th Decem- ber 1S24 ; Shaaf v. Taney, MS. 10th May 1826. 558 SNOWDEN V. SNOWDEN. State. Such precedents are generally considered to be of the lowest class ; but when adduced for the purpose of controlling or abrogating an act of Assembly, they cannot be allowed the weight of a feather. The original act(j) speaks of an infant residing out of the State ; and the mode which it prescribes, for obtaining the answer of such an infant, is clearly one which may now be, and was for- merly very commonly pursued for obtaining the answer of an infant within the State ; and therefore, whether the infant is considered as being at the time a nonresident, in every sense of that term, or not, is unimportant. It is suflScient, that he is then, when the answer is taken, in the state or country to which the commission is directed : for, if he has a guardian appointed by whom his answer is taken in the most formal manner, so as to warrant its being received whether he is considered as a resident within or out of the State ; then the answer, being in a form to suit either alterna- tive, it becomes unnecessary to decide whether he was, at the time of its being taken, a mere sojourner abroad, or actually " residing out of the State," or not. The case of publication against a nonresident, presents an entirely different question ; because the publication is to stand in the place of actual notice only in case the party be in truth a non- resident ; and therefore, if he does not, in fact, at the time, reside out of the State, such a substitute for the actual service of process cannot be resorted to, for the purpose of enabling the court to act upon the case ; and therefore, the decree will be void : since the publicatioji against a nonresident can, in no way, be fashioned, like a commission to take the answer of an infant defendant, to suit both alternatives of a residence, or a non-residence ; and conse- quently, if the publication be not valid upon the ground of the actual nonresidence of the party, it is a nullity to all intents and purposes whatever. Whereupon it is ordered, that a commission issue as prayed by the said petition of the plaintiffs filed on the 15th instant. A commission was issued and an answer returned accordingly ; after which, on the 8th May 1829, it was decreed that the real estate be sokl, &c. ij) 1797, ch. 114, s. 5. MAYER V. TYSON. 559 MAYER V. TYSON. An answer held, on exceptions, to be insufficient, is as no answer. If a defendant does not, after exceptions, put in a sufficient answer, as ordered, the bill may be taken pro confesso and a final decree passed ; or the case may be prose- cuted, as against the other defendants, to a final decree. Under what circumstances, and at what stage of the case the plaintiff may be required to give security for costs. This bill was filed on the 10th of December 1827, by Lewis Mayer and Isaac Lohnian, of the city of Philadelphia, partners trading under the firm of Mayer Sf Lohman, against Thomas Tyson, Richard H. Douglas, Christian Keller, Isaac Tyson jun'r, JYathan Tyson, Benjamin P. Moore, John Glenn, and Joaquim de Mier. The bill states, that the defendant Thomas Tyson had purchased of the plaintiffs a large quantity of rum and brandy, for which there was then due a balance of $1425 54 ; that the defendant Thomas, being in an insolvent condition, had by a deed assigned all his pro- perty to the defendants, Richard, Christian, Isaac, JS^athan, and Benjamin, in trust for the benefit of such of his creditors as should release their respective claims within a certain time ; that these plaintiffs had not so released their claim ; that the defendant Tho- mas had applied for and obtained the benefit of the insolvent law, under which the defendant John had been appointed his trustee; that the rum and brandy purchased by the defendant T/iomas of these plaintiffs was in fact bought by him merely as the agent of the defendant Joaquim, w^ho was in truth the real debtor to the plaintiffs ; that the defendants who were the trustees of the defend- ant Thomas had brought suit against the defendant Joaquim to recover the amount due from him for the rum and brandy so pur- chased, with a view to have it applied, according to their trusts, in satisfaction of the creditors of the defendant Thomas. Whereupon the plaintiffs prayed, that, as the debt due from the defendant Joaquim, to the amount due to therh, was properly owing to them, they might be first satisfied, &c. All the defendants answered jointly or separately, except Joa- quim, who being a nonresident, publication was made, warnino- him to appear, &c. To the answer of the defendant Thomas the plaintiffs filed exceptions ; because of its being, as they alleged, insufficient in several specified particulars. Upon which it was ordered, that those exceptions stand for hearing on the 15th of 560 MAYER V. TYSON. April 1828 ; provided a copy be served, &.c. Which having been served as required, the matter was submitted. 215^ April, 1828. — Bland, Chancellor. — Ordered, that the excep- tions of the plaintiffs to the answer of the defendant Thomas Tyson be and they are hereby ruled good ; and that he make a sufficient answer to all the several matters and allegations of the bill on or before the second day of June next, or the same may, after that day, be taken pro corifesso. The time allowed by this order for putting in a sufficient answer having elapsed, and the defendant Thomas Tyson having failed to answer as required, the plaintiffs brought the matter before the court, and moved that the case might proceed as against him, and the other defendants. IQth July, 1828.^Bland, Chancellor. — Where the answer of the only person who has been made a defendant is, upon excep- tions, held to be insufficient, the plaintiff is authorized, according to the English course of proceeding, to take the case up where it stood when the insufficient answer was filed, and proceed thence- forward against the defendant, so as to have him committed to cus- tody until he does answer, or to have the bill taken p)ro confesso ; because an insufficient answer is as no answer at all. (a) And so, where only one of the defendants stands in the situation of not having answered sufficiently, the like course must be had against him alone, so as to enable the plaintiff to proceed with effect against the other defendants. (6) Upon this principle, and as it has been provided by our acts of Assembly, that, where a defendant fails to answer, the bill may be taken pro confesso ;(c) so here where only one of the defendants has contumaciously neglected to put in a sufficient answer, after his first had been determined to be insufficient, it must be allowa- ble and is essentially necessary, to have the bill taken pro confesso as against him alone, so as to enable the plaintiff to proceed safely and with effect against him together with the other defendants. Whereupon it is decreed, that the bill of complaint be and the same is hereby taken pro confesso as against the defendant Thomas Tyson ; and the plaintiffs are allowed further to proceed with their (a) Child V. Brabson, 2 Ves. 110 ; Turner v. Turner, Dick. 316 ; Davis v. Davis, 2 Atk. 24 ; Darwent v. Walton, 2 Atk. 510 ; Gregor v. Ld. Arundel, 8 Ves. 88. (6) 1 Fow. Exch. Pra. 199 ; Royall v. Johnson, 1 Rand. 421.— (r) 1799, ch. 79, s. 1 ; Clapham v. Clapham, ante, 126. MAYER V. TYSON. 55^ case, according to the course of the court, in such manner as they may deem proper. After which the defendants, who had some time previously put in their answers, by their petition prayed, that, as the plaintiffs did not reside within this State, they might be ordered to give security for costs. 20thJlprilj 1829. — Bland, Chancellor.— As the origin and prin- ciples of the practice in relation to this matter do not appear to be as generally understood as they should be, I shall avail myself of this occasion to speak of the subject more fully than might other- wise be deemed necessary. At common law a plaintiff was required in all cases to give pledges to prosecute his suit with effect, or to abide the conse- quences. This however was not, strictly speaking, giving security for costs ; because although a plaintiff might be lined for making a false claim, yet costs, by the common law, were not recoverable in any case.(c^) The pledges to prosecute have, however, long since become obsolete. (e) The rule security for costs is applied only against nonresidents ; and is of recent origin in the courts of common law of England : so late as the year 175,0, in a case in which it was moved, that the plaintiff, who was a merchant residing in France, might be required to give security for costs, it was refused ; because, as was said, it would affect trade and be excluding foreigners from obtaining justice. (y) Some years after- wards it became a settled general rule to allow the defendant, even after issue joined, to demand security for costs in all cases where the plaintiff resided beyond the jurisdiction of the court ; and on the security not being given to have the suit dismissed. (g-) But a resident plaintiff, as it would seem, cannot be required to give security for costs merely on account of his poverty. (/i) In Maryland a plaintiff was at no time required to give pledges to prosecute ; but it appears, that if a nonresident himself applied to sue out original process for the commencement of an action he might be called on to give security for costs, (?) and if he did not himself so institute his suit, the attorney employed by him was (d) 2 Inst. 288.— (e) 3 Blac. Com. 27-1.— (/) Lamii v. Sewell, 1 Wils. 266; Max- well V. Mayer, 2 Burr. 1026. — (g) Denn, ex dim. Lucas v. Fulford, 2 Burr. 1177 ; Parquot v. Eling, 1 H. Blac. 106 ; Fitzgerald v. Whitmore, 1 T. R. 362 ; Carr v. Shaw, 6 T. R. 496.— (^) Golding v. Barlow, Cowp. 24 ; Tidd. Prac. 478.— (t) 1715, cli. 29. 71 562 MAYER V. TYSON. required to put in security for costs. (j) By laws, passed since the revolutioji, it is declared, that in all suits brought by persons not resident of the State, or who may remove out of it, after the com- mencement of the action, the defendant may lay a rule, at or before the trial court, on the plaintiff to give security for costs ; upon the failure to comply with which he may be nonsuited. (/c) It is evident from these and other legislative enactments, that the rule security for costs as against nonresident, and in some instances against resident plaintiffs, was frequently resorted to in our courts of common law from a veiy early period. (Z) Soon after the chancellorship had become active and important as a judicial ofnce in England, it was declared by a statute passed in the year 1393, that the Chancellor, upon any suggestion being found untrue, should have the power to award damages according to his discretion to him who had been so unduly troubled. This statute is said to be the foundation of the authority by w^hich costs in chancery are given in England ; and according to which it has been the practice in the Province and State of Maryland, and still continues to be, to give costs in all cases, except only in so far as it has been modified and controlled by the constitution and the acts of Assembly regulating officers' fees.fw) In the year 1436, to pre- vent the vexatious institution of suits in chancery in England for matters determinable by the common law", it was declared by sta- tute, that no suhpcena should be granted until security was given to satisfy the party grieved for his damages and expenses if the mat- ter of the bill should not be made good,(;i) This legislative enact- ment required a plaintiff in chancery in all cases to give security for costs. It is said, however, that this law has by degrees gone out of use or altogether vanished ; and that an entirely different {j) 1715, ch. 29 ; 1729, ch. 20, s. 2.— (/t) 1796, cli. 43, s. 12 ; 1801, ch. 74, s. 9. (Z) 1768, ch. 29, s. 24 ; 1794, ch. 54, s. 10; 2 Harr. Ent. 51, 118, 617.— (m) 17 Rich. 2, c. 6 ; Park. His. Co. Chan. 35 ; 2 Mad. Chan. 543 ; liilty's Rep. 224 ; Declaration Rights, art. 30 ; 1779, ch. 25 ; 1S26, ch. 247. " December, 1670, Ordered, tliat upon all rehearings and dismissions tlie costs paid bcforerehearingof the business to tlie defendant, if the business go for tJie plaintiff, the defendant to pay back the said costs again to the plaintill'; and this order to be observed for the future in this court." " Ordered also, that the register take fees in this court as the officers of this court in England, having one penny sterling for every pound of tobacco; and that he com- pute fifteen lines to be a sheet, and seven or eight words in each line ; and tliat for every such sheet writing, engrossing, copying, or enrolling, he charge but eight pounds of tobacco, or eight pence sterling." — ) 1 Hovend. Sup. to Ves. 149 ; 17S5, ch. 36. (/) 2 Harr.Pra. Chan. 60 ; 2 Mad. Chan. 270. MAYER r. TYSON. 555 ing the sittings of the next succeeding term.(o-) But if the fact of the nonresidence of the plaintiff does not appear upon the face of the bill ; or if he has after filing his bill left the State, then the matter must be brought before the court by petition, and a special order obtained, to be served on the plaintiff's solicitor, or, if he has none, to be entered short upon the docket, requiring security for costs to be given, imless cause shewn by a particular day. The form of the security is a recognisance or bond to the State in a penalty sufficient to cover the costs, with surety resident within the state, to be approved by the Chancellor. (A) In this case the bill itself states, that the plaintiffs are nonresi- dents, and, consequently, the answers and subsequent proceedings of the defendants have amounted to a waiver of the right on their part to lay the plaintiffs under a rule to give security for costs. Whereupon it is ordered, that the petition of the defendants be and the same is hereby dismissed with costs. This case was afterwards entered agreed. (g) Denxis, &c. Assignees of D, A Bankrupt, v. Greenbury. — 1714. — Or- dered, that security be given for costs in the sum of five thousand pounds of tobacco ; bond to be given in six ^eeks or the bill to be dismissed. — Chan. Proc. lib. P. L. fol. 75. Falconer v. Blay. — 1715. — Bill dismissed with costs for want of security being given according to the rule of last court. — Chan. Proc. lib. P. L.fol. 122. Hanbury v. Vernon. — 1731. — Upon motion of the defendant's counsel. Ordered that security for costs be given. Edmund Jenings becomes security for the same. — Chan. Proc. Ub. S. E. No. 2, fol. 225. Cheney I'. Cheney. — 1773. — Rule security for costs and fees next court. — Chan. Proc. lib. W.K. No. I, fol. 314. Bryden v. Chase. — 20th December, 1810. — The plaintiff was a resident of New- York. Rule on the plaintiff to give security for costs before the 5th day of February term 1811. Rule enlarged- to the fourth day of July term ISll. The Lord Proprietary v. Carroll. — 173S. — Information, &.c. — Upon motion of the defendant's counsel, Ordered, that security for costs be given by next court ; the person at whose relation the information is filed being a nonresident. — Chan. Proc. Ub. J. R. No. B,fol. 465. (A) Upon which there may be as it appears a " scire facias against the security for costs on th-e recognisance," 1763, ch. 18, s. 89 ; or an attachment as at common law, 2 Harr. Ent. 617. •^Wfc 566 BILLINGSLEA v. GILBERT. BILLINGSLEA v. GILBERT. The penalty of an injunction bond to stay proceedings at law should be at least double the amount of the debt and interest then due. An answer to a bill in chancery may, by consent, be received without oath. On its being shewn, that the dissolution of an injunction has been irregularly and improperly obtained it may be revived. It appears that the late William Billivgslea, on the 9th March 1821, filed his bill here praying for an injunction to stay proceed- ings at law instituted against him by Jarvis Gilbert ; and in the same month Billingsha filed a supplemental bill against Gilbert, in like manner praying iox an injunction. 19th March, 1821. — Kilty, Chancellor. — The penalty of the injunction bond, 2000 dollars, is not sufficient. It should be double the amount of the debt which is .£600 and the interest thereon, excepting what has been paid. After which another bond was filed and submitted. 'Uh April, 1821. — Kilty, Chancellor. — The penalty of the injunc- tion bond now filed is still insufficient. The interest after deduct- ing the payments made is nearly 1516 dollars. The penalty should be double the aggregate of principal and interest, and the safest way is to make it somewhat more. When the injunction issues it will only be to stay the execution, and not to prevent the having a trial or obtaining a judgment. (a) (a) Yance v. Short. — 1788. — Answer filed ; rule on the plaintiff to shew cause on the first day of July next why he should not give better security to prosecute his injunction with effect. Also notice of motion to dissolve the injunction next court. — Chan. Proc. lib. S. H. H. Id. B.fol. 354. Sweeny v. Rodgers. — 1790. — Rule on the complainant to file a new bond with sufficient surety by the 18th of October next, or the injunction be dissolved. — Chan. Proc. lib. S. H. H. let. C.fol. 400. Onion v. McComas. — MS. 1812. — Kilty, Chancellor. — Where the surety in an injunction bond is, or has become insufficient, as being an infant or having become insolvent, the court will order new security, or that the injunction be dissolved ; and, if the court has been imposed on, no time will be allowed to give new security. Such matter may be enquired into by allowing testimony to be taken, and appointing a day for hearing. Whitney v. Muschet, MS. 1808.— Kilty, Chancellor.— An injunction bond to stay proceedings at law should state the term at which the judgment was obtained. CouNSELMANV. Gaither, MS. 1810.— KiLTY, CAanccZ/or.- Ordered that, instead of an injunction bond, on the money appearing to be due by the execution issued, being paid to the register, which he is directed to receive and deposit in the usual manner, an injunction be issued as prayed. BILLING8LEA v. GILBERT. 557 After which a proper and sufficient bond having been filed and approved, an injunction was granted as prayed, and issued accordingly. The defendant Gilbert sent a paper purporting to be his answer by mail directed to the Chancellor ; which, although not sworn to, was filed, on the 28th of December 1824, as the defendant's answer. In the month of JNIarch 1825 the plaintiff Billingslea Avas taken with a severe illness, and his health continued from that time to be very bad, he being often confined to his bed, and his mind becoming very much impaired, until the follow'ing month of December, when he died. At the July term of the year 1825, the defendant entered upon the docket notice of a motion to dissolve the injunction at the next term, unless' cause shewn ; and accord- ingly, after the fourth day of the then next succeeding term, no one appearing to shew cause, it was dissolved under the rule. After which, on the 10th of July 1827, it appears by an entry on the docket, that the suit was dismissed by order of the complainant's solicitor. On the 7th of April 1829 Elizabeth Billingslea, as admin- istratrix of the late plaintiff, filed her petition, on oath, stating these circumstances, and averring, that the dissolution of the injunction had been obtained by fraudulent practices, and praying that it and the suit might be reinstated ; and for general relief. 1th April, 1829. — Bland, Chancellor. — Ordered, that the mat- ter of this petition stand for hearing on the 24th instant ; and that the parties be permitted to take testimony before any justice of the peace to be read at the hearing on giving two days' notice as usual ; and it is further ordered, that the injunction in the petition mentioned be and the same is hereby revived until the said hearing or further order. Provided, that a copy of this order, together with a copy of the petition be served on Jan>is Gilbert on or before the fourteenth instant. After which the case was again brous^ht before the court. 21th April, 1829. — Bland, Chancellor. — The matter of the peti- tion of Elizabeth Billingslea standing ready for hearing, and the solicitors of the parties having been fully heard, the proceedings were read and considered. There can be no doubt, that the answer of a defendant may be received by consent without oath. It is every day's practice to do so : but the consent of the plaintiff must be expressly given in 568 BILLINGSLEA v. GILBERT. writing by himself or his solicitor ; or it must be shewn as a neces- sary inference from some act of his which clearly implies, that he knew a paper purporting to be an answer, not sworn to, had been filed. As in this case, if the plaintiff had appeared on the notice of motion to dissolve the injunction and opposed it, without objecting to the answer on account of its not having been sworn to, he would have been precluded from making such an objection at any time thereafter; because of the manifest waiver of his right to have an answer on oath. But this defendant did not appear in opposition to the motion to dissolve the injunction ; and it has not been shewn that he ever, either expressly or impliedly, consented to receive the defendant's answer to his bill without its being verified by an oath. At the time when the notice of the motion to dissolve the injunc- tion was entered on the docket, and, from that time until it was made absolute, it appears, that the plaintiff was in a state of health, which rendered it at least doubtful, whether he could have bound himself by any consent in relation to this suit; or have attended to it with that judgment and discretion which men usually pay, and ought to be permitted to bestow upon their own affairs. (a) Therefore upon consideration of all the circumstances, I am of opinion, that the dissolution of the injunction was irre- gularly and improperly obtained. The suit having abated after that time by the death of the plaintiff, the docket entry, that it was dismissed by order of the complainant's solicitor, is manifestly erroneous ; because there was then, in fact, no such suit depending which could have been so dismissed. But, even if there had been a suit depending, a general dismissal, without saying any thing of the injunction, would not have amounted to a dissolution of it; nor would the death of either party, by which the suit became abated, operate as a dissolution of the injunction. (6) Whereupon it is ordered, that the injunction heretofore granted be and the same is hereby revived and reestablished in full force until further order. And the defendant, the petitioner, or the legal rep- resentatives of the late plaintiff upon whom his interest in the suit has devolved, are hereby permitted, without prejudice from this order or any proceedings heretofore had in this suit, either to revive the (a) Kemp v. Squire, 1 Ves. 206.— (6) Griffith r. Bronaugh, ante, 547. DUVALL V. WATERS. 559 same, or to have the injunction properly and regularly dissolved according to the course of this court. After which the suit was regularly revived by bill ; and the Case was referred to arbitrators, who returned an award, upon which, on the 6th of August 1832, a final decree was passed, which closed the case. DUVALL V. WATERS. The distinction between waste and trespass as regards the proceeding by injunction. The preventive and corrective common law remedy for waste. The writ of esirepe- mfnt to prevent waste associated with an action to try the right. An injunction to stay waste may be granted in a variety of cases in which an action of waste will not lie. And the court will, in many cases, exercise a conservative power over propertj', because of there being no mode of obtaining adequate relief at law . In England, if the injunction bill states and admits, that the defendant asserts and relies upon what he alleges to be a valid adverse title in himself, the plaintiff thereby states himself out of court ; or if the defendant in his answer positively denies the plaintiff's tiUe, tlie injunction will be refused, or, having been granted, will, on the coming in of such an answer, be dissolved. But in Maryland, if the plaintiff, by his bill for an injunction, can and does put the title in issue here ; or, if he states, that he has actually brought an action at law to try the right, he may have an injunction to stay waste, pending the suit here, or the action at law ; and, such injunction will not be dissolved on the coming in of an answer which denies the plaintiff's right. If however, after he has filed such a bill here to try the right, he wishes to obtain an injunction to stay waste, he sliould apply for it by petition in the same case, and not by a sepa- rate bill. An injunction to stay waste, pending a suit, does not restrain the defendant from cul- tivating, or making any of the ordinary uses of the land. A conveyance, shewn to be fraudulent, declared to be void as against creditors. The title to land sold under a fieri facias passes by the sale ; but (here must be some written, and recorded evidence of the sale ; such as a return to the execution under which Uie sale was made. Where lands have been sold under a fieri facias, the sheriff should, in his return, sufficiently describe the land sold by him. This bill was filed, on the 26th of February 1827, by Charles Davall, against jXathan Waters, jYuthan I. Waters, and Samuel RatcUjf. It alleged, that Samuel Peach had obtained a judgment at law against JVathan Waters upon which he had sued out a Jieri 72 '570 DUVALL V. WATERS. facias, by which the hinds in question were taken and sold, as the property of the defendant JSathan Waters ; and this plaintiff became the purchaser ; ^ that Mathan Waters had, with intent to defraud his creditors, without any valuable consideration, pre- viously conveyed those lands to the defendants JYatJum I. Waters and Samuel liatdijf. Whereupon it was prayed, that the convey- ance might be set aside as fraudulent and void. The defendants put in their answers to this^bill ; and commissions were issued and testimony collected. All the material particulars of this case are stated by the Chancellor in delivering his opinion on pronouncing the final decree. On the 18th of July 1827 this plaintiff filed another bill here against these same, defendants, reciting the nature and pendency of the former bill; and alleging, that, since the institution of that suit, the defendants had been committing great waste, by cutting large quantities of timber, with a view of removing it from the land ; and by destroying the wood. Whereupon the plaintiff prayed for an injunction commanding the defendants not to commit farther waste by cutting, or removing from the lands any tim- ber ; or by destroying the wood ; and, not to do any act that might be in any wise prejudicial to the inheritance; and for general relief. Which injunction was granted as prayed. The defendants put in an answer to this bill, in which they averred, that the conveyance was made for a good and valuable considera- tion ; and in short denied the plaintiff's title, and all the material facts upon which his equity rested ; and thereupon gave notice of a motion to dissolve. 1st October, 1827. — Bland, Chancellor. — The motion to dissolve the injunction standing ready for hearing, the solicitors of the par- ties were heard and the proceedings read and considered. It has been urged, in support of this motion, that this was not merely and properfy a case oi waste, but an injunction, in restraint of trespass, granted at the instance of a plaintiff who claimed title ; which title had been directly and positively denied by the defend- ants. And that according to the well established law of this court, as deduced from the English authorities, no such injunction could be granted or continued where the title of the plaintiff, as in this instance, was admitted to be in dispute, or was altogether denied by the defendant in his answer. This objection is certainly well founded upon the principles of the English law ; but it is otherwise according to the law of Maryland.. DUVALL V. WATERS. 571 This is the first instance, since I have been here, in which the correctness of this peculiar species of injunction has been called in question ; and as its origin and nature seem to have fallen into some degree of obscurity ; it may be well to take a larger view of the subject than might otherwise be deemed necessary. The terms waste and trespass are very often used to designate injuries to property of the identical same nature. The cutting of a timber tree, or the pulling down of a house, may be an act entirely lawful ; or it may be an act of waste, or of trespass ; and, that not because of any peculiarity in the act itself; but, because of the party, by whom it may have been done, having an absolute title, a limited estate, or no right whatever. The absolute owner of an estate in fee simple, without any incumbrance, or charge upon it, has an uncontrollable power to dispose of it as he may think proper ; and can be, in no way, held accountable, as a waster or trespasser, for any thing he may do with the trees, houses, or soil of his lands. If he who does such an act has only a particular estate, as a tenancy for life or years, it is properly denominated loaste ; but, if he has no right whatever, it is then said to be a trespass. In general, when any permanent or lasting injury is done, by the holder of the particular estate, to the inherit- ance, or to the prejudice of any one who has an interest in Ihe inhe- ritance, it is properly called waste; as where timber trees are felled, or houses are destroyed by a tenant for life or years ; or by a mortgagor or mortgagee in possession ; or by a tenant in fee simple, where the State has reserved to itself an interest in the trees, &c. for the use of the public. («) («) Although in Ens:land the cuttins; of timber, by a tenant in fee simple, cannot be deemed waste ; yet if the public has an interest in the forest trees, or they are reserved tor public use, as for ship building, or tlie ILlce, it is then held to be waste to fell such trees ; and the tenant in fee simple, may be restrained from cutting them by injunction. — Jacob L. Did. verb. Wasfe. — BMop of Winchester v. TVoIgnr, 3 Sican. 493, note. By a clause in the colonial charter of Massachusetts ; and, by seve- ral acts of parliament, all lehite pine trees of tWe diameter of twenty-four inches and upw^ards, of twelve inches from the ground, growing in Maine, New Hampshire, Rhode Island, Connecticut, New York, and New Jersey, were, under the colonial government, reserved to the use of the crown fof masting the ro3'al navy. This white pine, the ancient and majestic inliabitant of the North A.merican forest, says Michaux, is still the loftiest and most valuable of their productions, and its summit is seen at an immense, distance aspiring towards heaven, in some instances to tho height of one hundred and eighty feet from the ground, and far above the beads of ^he surrounding ti'ees. The felling of any of these w-hitc pines was prohibited by a 572 DUVALL V. WATERS. In general waste is the abuse, or destructive use of property by him who has not an absolute unqualified title. And in general trespass is an injury, or use, without authority, of the property of another, by one who has no right whatever. At common law, if the owner" of the inheritance had good rea- son to believe, that a tenant in dower, or by the courtesy, or a guardian designed to commit waste, he might, before any waste was done, have a ijrohihition directed to the sheriff, commanding him to prevent it from being done ; and in execution of this writ of pro- hibition, the sheriff might, if necessaiy, call to his aid the posse comitatus. This writ was extended, by a statute passed in the year 1267, to tenants for life and for years : and afterwards, in 12S5, it was taken away, and another form of w^it given in its place ; but when the court of chancery first granted injunctions, it seems to have taken its jurisdiction from this writ of prohibition of waste. (6) After waste had been actually committed, the ancient corrective remedy, in a court of common law, was by a writ of waste, for the recovery of the place w^asted and treble damages, as a compensa- tion for the injury done to the inheritance. (c) There were, how- ever, several cases to v/hich the writ of waste did not extend ; and as to such cases, the party was left w^ithout any remedy at common law. The action of waste could only have been brought by him who had the immediate reversion or remainder, to the disinherit- ance of whom the waste was always alleged to have been com- mitted ; and therefore, if a lease had been^made to A for life or years, remainder to B for life ; and A committed waste, the action could not be brought by him, in reversion or remainder, so long as heavy penalty, made recoverable in the colonial courts of Vice Admiralty, without a trial by jury. The claims of right to these trees, and the execution of the laws for their preservation, produced much imtation among the colonists ; insomuch so, that the controversies respecting them, in those colonies to which the statutory prohibition of felling them extended, maybe considered as some among the minor causes of the revolution.— 9 Jlnne, c. 17; 8 Geo. 1, c. 12; 2 Geo. 2. c. .3.5; 1 Chal. Opin. Em. Lmv, 111, 116, Hi), 137 ; 2 Hutch. His. Mans. 228 ; 2 Belk. N. Hamp. 28, 89, 128 ; Michmtx's Sylva, art. Wliile Pi«e.— Since the revolution Congress have deemed it expedient to make similar resen'ations of tlie Live Oak, and Red Cedar, growing on the public lands, for the use of the \m\y.—\st March, 1817, ch. 22 ; 2d March, 1831, eh. 6.3. (6) Co. Litt. 53; 2 Inst. 299, 3S9 ; 52 Hen. 3, c. 23 ; 13 Edw. 1, c. 14; Kilt. Rop. 209, 212 ; Jefferson v. Bishop of Durham, 1 Bos. &. Pul. 108, 121 ; Goodcson V. Gallatin, Dick. 455.— (c) Co. Litt. 53; 2 Inst. 300. DUVALL V. WATERS. 573 the life estate of B continued. But the inten*ening life estate only suspended the remedy ; for, after its termination, the reversioner, or remainderman might then bring his action against A for the waste done before that time.((^) Nor could any one maintain this action unless he had the estate of inheritance in him at the time the waste was committed ; nor could it be sustained against an executor, for waste committed by his testator, it being a wrong which died with the person ; nor could one coparcener bring an action of waste against another ; although one joint tenant or tenant in common might have a writ of waste against his cotenant, com- pelling him either to make partition, and take the place wasted as his own share, or to give security not to commit any further waste. (e) At the common law there was no process by which a threatened trespass upon a real estate, however great or irreparable, could be prevented. After the act was done the injured owner might bring his action of trespass against the wrongdoer, and recover satisfac- tion in damages ; but, the common law gave him no means of pre- venting the execution of the designs and threats of any one, whose declared and settled purpose was to commit a trespass upon his lands. If however the claimant was not in possession, and he thought proper to bring an action to establish his right, and recover the estate ; then, and in aid of such suit, and to prevent any injury from being done to the property, pending the controversy, the common law gave the writ of estrepcment.{f) It would seem, that originally this writ could only be used as an aid to a real action for the recovery of the land itself; but, its scope having been extended by statute, it was afterwards used in connexion with actions in which no land was demanded, as in actions of waste, trespass, &c. It was not, however, allowed to be associated with a suit for partition ; because the tenants, being both of them in possession, there was no reason why one should be restrained and not the other. A writ of estrepement might be sued out at the same time, and together with the original writ, commencing the action ; and that too, in those cases where damages for waste done, pending the action, might be recovered ; because it was injurious to the commonwealth that waste should be done, and peradvcnture he who committed it might not be able to satisfy the plaintiff his full damages. (^) (d) Co. Litt. 53 ; Clifton's Case, 5 Co. 76.— (e) 2 Inst. 302, .305, 403 ; 3 Blac. Com. 227.— (/) Jacob. L. Die. verb. Estrepement.— (g) 2 Inst. 328. 574 DUVALL v. WATERS. The writ of estrepement is certainly a preventive remedy, and so far it is analogous to a writ of irrohibition, by which a tenant in dower, or by the courtesy might be prevented from doing waste. But it is more ; it is also a remedial and corrective remedy ; because, the holder of land may not only be prevented from doing waste ; but if he should do any notwithstanding the prohibition, the plaintiff may recover damages for such waste, even up to the time when possession shall be delivered to him. This writ has some other peculiar traits of character. It can never be brought into action independently and alone ; it must always be associated with another as its leader ; to which it acts as an auxiliary, whose fortunes it must follow, and to whose final fate it must submit. If it emanates, as it may, at the same time and together with its chief, from the chancery office, it is then called an original ; but if it be awarded by the court, in which the action is depending, as it may, it is then called a judicial writ of estrepement. This writ, as its very name distinctly imports, is ahvays intended to stay waste. It is no where spoken of as a means by which a mere tres- pass may be prevented ; in all its modifications, it is continually treated as a remedy against waste. {h) But in a writ of right, and in all the other actions, except a writ of waste, to which an estrepe- ment is called in as an auxiliary, there is not any privity of title Avhatever between the parties to the suit ; all such privity being expressly disavowed. The plaintiff asserts, and calls for the vin- dication of his absolute title against an unqualified wrongdoer, who he complains of as a disseizor, ejector, or trespasser. And, therefore, in all such cases, the injury which it is the oflace of the writ of estrepement to prevent, is not properly waste, founded on privity of title, as between a reversioner and a particular tenant ; but literally a trespass, in the chancery acceptation of that term ; and not a mere abusive use of that which a lawful holder had a right to enjoy. Where the title and the rights of the parties are admitted, there can be no mistake ; and therefore, there should be no confusion or misapplication of these terms waste and trespass. But, in the English authorities, there is not the same distinctness, in the appli- cation of them, to any such injuries to the inheritance, where the rights of the parties are disputed and put in litigation. If the party asserts his title to an estate, by an action at law, such acts, with {h) F. N. B. 139; 2 Inst. 32S ; 3 Blac. Com. 223; Jacob. L. Die. verb. Estrepe- ment. I DUVALL V. WATERS. 575 reference to a presumption in favour of the validity of Iiis title pend- ing the suit, are said to be waste ; but if he asks, in a court of chancery, to have the doing of such acts prevented by an injunc- tion, they are denominated trespasses. {i) This difference in cha- racterizing the same injurious acts, when proposed to be prohibited by an estrepement, as waste ; and when proposed to be restrained by injunction as trespass, has been attended with some confusion. And therefore in relation to the peculiar species of injunctions, now under consideration, all such acts as would be deemed waste, when done by an admitted particular tenant, if done after the institution of any suit involving the title, or of a suit for partition, it may be well to denominate eventual waste. The judicial records of the State, and the acts of Assembly reo;ulatino^ officers' fees shew, that the writ of waste as well as the writ of estrepement were at one time in common use in Mary- land. (j) But here, as in England, these writs have fallen into disuse, and are now seldom, or never brought, having given way to the more easy and expeditious remedy by an action upon the case in nature of waste at common law ; by which the plaintiff obtains satisfaction for the injury done to his inheritance by a recovery of damages alone ',{k) and in Maryland to an injunction from chancery which performs the office of a writ of estrepement. The whole subject of waste, in Maryland, seems to have passed, almost altogether, firom the cognizance of the courts of common law to that of the court of chancery ; and the shifting of this mat- ter so entirely, from the one jurisdiction to the other, may be attri- buted to the nature of the injury requiring redress ; to the different constitutions of the tribunals ; and to their peculiar modes of pro- ceeding. Waste is a wrong which cannot always be duly esti- mated and remunerated in damages ; it is an injury which requires to be met, in its onset, or earliest approaches, by a strong and decisive preventive remedy, acting with a promptness almost amounting to surprise ; and yet affording to the party restrained a speedy hearing. No adequate remedy of this kind, it is evi- dent, can be obtained from a court of common law, open only at short intervals during the year ; acting from term to term ; and (i) Eden. Inj. 136 ; Mitchell v. Dors, 6 Ves. 147 ; Crockford v. Alexander, 1.5 Ves. 13S; Mogg i-. Mogg, Dick. 670.— C^') 2 Harr. Ent. 149,800; Adams v. Brereton, 3 H. & J. 124 ; 1763, ch. IS, s. 89 & 94 ; 1779, ch. 25, s. 2.—{k) 3 Blac. Com. 227 ; Greene v. Cole, 2 Saund. 252, note 7 ; AVhite v. Wagner, 4 H. & J. 373 ; McLaughlin v. Long, 5 H. & J. 113. 576 DUVALL V. WATERS. limited to a given set of technical forms of proceeding. Hence it is, that the remedy has been so constantly, in modern times, sought in the court of chancer}^, which is always open, constantly accessi- ble, and is capable of moving with an energy and despatch called for by the emergency, and suited to the peculiar nature of the case. In general an injunction may be obtained, in this State as in England, to stay waste in all cases where an action of waste would lie at common law, whether there be any privity of title or not ;(/) and in a variety of others in which no such action could be brought, even where there was a subsisting privity of title or contract between the parties. A mere threat to commit waste is a sufficient foundation for an injunction before any waste has been actually done.(m) And an injunction may be granted where no account of damages could be claimed ; or where the waste done is so insig- nificant that there could be no recovery of damages at law.(?i.) It maybe granted in favour of a child en ventre samere ;(o) in favour of trustees to preserve a contingent remainder, before the contin- gent remainderman has come in esse ;{p) in favour of any one entitled to a contingent or executory estate of inheritance; (9) and in favour of a remainderman or reversioner, where there is an intervening estate for life.(r) An injunction may be obtained, in respect of equitable waste, against a tenant in tail after possibility of issue extinct ;(s) against a tenant for life without impeachment of waste •,{t) and against a mortgagor or mortgagee in possession. (m) An injunction may be granted as between tenants in common, joint tenants, and coparceners, against malicious destruction, or when the tenant committing the waste is insolvent, or is occupy- ing tenant to the plaintiff. (y) And so too, where some of the heirs had filed their bill in this court against the rest to obtain a partition according to the act to direct descents, and one of the heirs, who was in possession, wms committing waste ; upon a (I) The Mayor &, Com. Norwich v. Johnson, 3 Mod. 90 ; S. C. 2 Show. 457. (m) Gibson v. Smith, 2 Atk. 183 ; Hannay v. MicEntire, 11 Ves. 54; Coffin v. Cof- fin, Jacob. 70. — (n) The Universities of Ox. &. Cam. f. Richardson, 6 Ves. 706 ; The Keepers, &.c. of Harrow School v. Alderton, 2 Bos. & Pul. 86. — (0) Robinson v. Litton, 3 Atk. 211.— (;)) Garth v. Cotton, 3 Atk. 754.— (9) Bewick v. Whitfield, 3 P. Will. 268, note ; Haywaid v. Stiilingfleet, 1 Atk. 422.— (?) Bewick v. Whit- field, 3 P. Will. 268, note; Farrant v. Lovel, 3 Atk. 723.— (s) Abraham v. Bubb, 2 Freem. 53.— (/) Lord Bernard's Case, Prec. Chan. 454.— (w) Faitant v. Lovel, 3 Atk. 723 ; Humphreys v. Harrisoji, 1 Jac. 8c AValk. 5G1.— (r) Smallman v. Onions, 3 Bro. C. C. 621 ; Hole v. Thomas, 7 Ves. 589 ; Twort i'. Twort, 16 Ves. 12S. DUVALL V. WATERS. 577 representation of the fact, by the trustee appointed to make sale of the lands for the purpose of effecting a partition, he was restrained by injunction. (w?) When the bill is for an injunction to stay further waste, and waste has been already committed, the court, to prevent a double suit, will decree an account and satis- faction for what is past, and not oblige the plaintiff to bring an action at law as well as a bill in equity ; but such decree for the past is only given as an incident to the injunction, to obtain which the plaintiff was under a necessity of coming into chan- cery- : and, consequently, it may be regarded as a general rule, to which there are few exceptions, that when no injunction is, or can be asked for or granted, a bill to have an account of past waste, and nothing more, cannot be sustained, the proper remedy being at law. (2:) It appears, that the English Court of Chancer}' had steadily confined itself in granting relief against waste, to those cases only where there was some subsisting privity of title or contract between the parties, until about the year 1785 ; since which time it has gone one step further, and granted injunctions against strangers to stay trespass, in strong cases of destruction or irreparable mis- chief; or where the irreparable mischief might be completely effected before any trial could be had as to the controverted right. But, at that point, it seems to have come to a stand ; not, however, without expressing a regret, that its jurisdiction had not been extended so far as to protect real estate from waste and injury pending a controversy about the title. I have seen no reason to doubt, that the powers of this court in granting injunctions have been always considered as in all respects coextensive with those of the chancery court of Eiigland.[y) It appears to be even yet the fixed rule of the Court of Chan- cery o{ England, that the granting of an injunction to stay waste must depend, either upon the fact of there being a privity of title or contract acknovvdedged by the answer ; or an unquestionable legal or equitable title in the plaintiff; as where a purchaser fdes a bill for specific performance of his contract, suggesting, that the defendant was proceeding to cut timber &c., an injunction may be {w) Claxke v. Clarke, MS., 24th Januar\' 1322. — (x) Jesus College v. Bloom, 3 Atk. 262 ; Eden. Inj. 146.— (y) Pillsworth v. Hopton, 6 Ves. 51 ; Mitchell v. Dors, G Ves. 147 ; Hanson v. Gardiner, 7 Ves. 305 ; Smith v. Collyer, 8 Ves. S9 ; Courthope V. Mapplesden, 10 Ves. 290 ; Crockford v. Alexander, 15 Ves. 138 ; Norway v. Rowe, 19 Ves. 147 ; Jones v. Jones, 3 Meriv. 173. 73 578 DUVALL V. WATERS. granted if the contract be slated and admitted. For if the bil] states and admits, that the defendant asserts and relies upon what he alleges to be a valid adverse title in himself, the plaintiff thereby states himself out of court, or if the defendant in his answer posi- tively denies the plaintifTs title, the injunction will be refused ; or having been granted will, on the coming in of such an answer, be dissolved, (c) It is said, however, in one of the most respectable treatises on pleadings in chancery, that, " pending an ejectment in a court of common law, a court of equity will restrain the tenant in posses- sion from committing waste, by felling timber, ploughing ancient meadow, or otherwise. Against this inconvenience a remedy at the common law was in many cases provided during the pendency of a real action, by the writ of estrepement ; and when the proceed- ing by ejectment became the usual mode of trjdng a title to land, as the writ of estrepement did not apply to the case, the courts of equity, proceeding on the same principles, supplied the defect."(cr) But the only authorities cited in support of what is here said are cases between landlord and tenant, where the title of the plaintiff had not been, and could not be denied by the defendant who con- fessedly held only as tenant. (6) Whence it is evident, that there can be no means of preventing waste from being done upon real estatCj in England, pending a suit to determine the title, other than the writ of estrepement ; and that writ, it is said, has fallen into disuse, (c) But in a variety of other cases the English Court of Chancery is in the habit of exercising its preventive and conservative powers for the express purpose of preserving the subject of litigation from waste, injury, or total loss, pending the controversy. In cases of patent rights, where the plaintiff is in possession of the invention, under colour of title, an injunction may be granted pending the proceedings at law to try the right. ((/) And so, too, where the plaintiff claims the copy-right of a book, an "injunction may be granted to prevent publication, during the continuance of a suit at law. In cases of copy-right the jurisdiction is assumed merely for the purpose of making the legal right effectual, which {:) Pillsworth v. Hopton, 6 Ves. 51; Smith v. Collycr, S Ves. 89; Norway ». Rowe, 19 Ves. 147.— (a) Mitf. Plea. 136.— (6) Lathropp v. Marsh, 5 Ves. 259 ; Pulteney v. Shelton, 5 Ves. 260, note; Onslow v. , 16 Ves. 173.— (c) 3 Blac. Com. 227; Calvert v. Gason, 2 Scho. &, Lefr. 561.— {d) The Universities of Ox. & Cam. 0. Richardson, 6 Ves. 689. DUVALL 1-. WATERS. 579 cannot be done by any action for damages, because, if the work is pirated, it is impossible to lay before a jury the whole evidence as to all the publications, which go out to the world, to the plaintiff's prejudice ; and therefore^ with a view to make the legal tight effectual, the publication will be altogether prohibited. "Where a^ir doubt appears, as to the plaintiff's legal right, the court always directs it to be tried ; making some provision in the inte- rim, the best that can be, for the benefit of both parties. (e) And on a proper case being presented the court will grant an injunction, and appoint a receiver to preserve personal property while a suit is depending in the ecclesiastical court, although an administration pendente lite might be there obtained. (/") In general, where per- sonal property, or , the rents and profits of real estate in dispute, are in imminent danger of being wasted or lost, a receiver may be appointed to take care of it, for the benefit of all concerned, pend- ing the controversy. (^) To accelerate the progress of the suit, as well as for the greater security of the fund, for the benefit of those who may ultimately appear to be entitled to it, money may be ordered to be brought into court where the defendant admits, that he has it in his hands, and that he has no title to it. (A) And there are many instances where the court interposes by injunction to secure the enjoyment of specific chattels ; either because of their peculiar character ; or because, from the nature of the pro- perty, it w^ould be difficult or impossible for the plaintiff to have the full benefit of it, unless he could specifically enjoy it.(z) Looking to the general reasoning and principles of those various cases in which the English Court of Chancery interposes for the preservation of property, the right to which is in litigation, it does indeed seem strange, that it has so pertinaciously refused an injunc- tion to prevent irreparable mischief, and to put a stop to the further commission of waste upon real estate during the continuance of an action at law to try the right. It is admitted, that there is no good reason why the court should not interfere in such cases. Should it turn out, that the defendant had an unquestionable title, then the granting of sucb an injunction could only ope- rate temporarily and partially to the prejudice of the free exer- (c) Hogg V. Kirby, 8 Ves. 215 ; Wilkins v. Aikin, 17 Ves. 422 ; Rundell r. Mur- ray, Jac. Rep. 311 ; Act of Congress, 1.5th Fcbniar>' 1S19, ch. 19. — (/) Atkinson V. Henshaw, 2 Ves. k Bea. 85.— {g) Powell Mort. 294, note.— (/i) Gordon r. Roth- ley, 3 Ves. 572 ; Freeman r. Fairlie, 3 Meriv. 29. — (() Fells v. Read, 3 Ves. 71; Lady Arundell i'. Pliipps, 10 Ves. 143, 580 DUVALL V. WATERS. cise of his right of property. But on the other hand, if it should be eventually shewn, that the plaintiff had the title, then, as the injunction turns no one out of possession, nor displaces any thing, it must necessarily leave to the defendant the advantage of fighting the plaintiff with his own property. Upon which, had not the injunction been granted, the most irretrievable destruction might have been perpetrated ; acts of waste might have been committed which would deprive the plaintiff of the very substance of his inheritance ; mischief might have been done which it would require years to repair ; and things might have been torn away or destroyed which it would be difficult or impossible to restore in kind ; such as the buildings, fixtures, trees, or other peculiarities about the estate, which a multitude of associated recollections had rendered precious to their owner ; but, as a compensation for the loss of which a jury would not give one cent beyond their mere value. A man has a right to secure to. himself a property even in his amusements ; and, it is not fit in any such cases to cast it to the estimation of people, who may have not the least sympathy with the feelings of the owner, to set a value upon his privileges or his property. (J) The High Court of Chancery of Maryland has from the begin- ning, or certainly for a great length of time past, in this respect, acted more in harmony with its general principles, than the Court of Chancery of England, by interposing to prevent waste and destruction in all cases, during the continuance of a suit in which the title to the property has been, or may be brought in question ; as well where the subject of litigation was real estate, as where it was mere perishable personalty, or money, or choses in action in the hands of the defendant. A similar and equally extensive application of the writ of injunction to stay waste, appears to have been made by the courts of chancery of Virginia and South Caro- lina.{k) As I have before observed, there is sufficient evidence of the writ of estrepement ha\ang been at one time often resorted to in this State ; although it has now fallen into total disuse. But even that writ must have been a very tardy and inadequate remedy ( j) Fells V. Road, 3 Ves. 70 ; Smith v. Collyer, 8 Ves. 89 ; Berkely v. Brymer, 9 Ves. 356 ; Lady Arundell v. Phipps, 10 Ves. 143 ; Courthope v. Mapplesden, 10 Ves. 291 ; Lowthert). Lord Lowther, 13 Ves. 95 ; Crockford v. Alexander, 15 Ves. 13S; Earl Co\\'per i'. Baker, 17 Ves. 123; Astley jj. Weldon, 2 Bos. &. Pul. 351 ; Kimpton v. Eve, 2 Ves. ?t Bca. 349.— (/c) Ilairis r. Thomas, 1 Hen. & Mun. 18 ; Shubrick v. Gueraid, 2 Dcsau. 616. DUVALL V. WATERS. 581 compared with an injunction; which is the only judicial proceed- ing, that seems to be, in all respects, capable, by its promptness and vigor, of preventing irreparable mischief from being done to real estate pending the litigation, by a provoked and desperate defendant. When this mode of interposing by injunction to stay waste, pending an action at law or a bill in chancery, was first allowed by this court, I have not been able distinctly to ascertain; but it is evident, that it had been considered as a settled course of proceed- ing under the Provincial Government ; for upon an information in chancery, filed on the 13th of April 1775, by the attorney general, at the relation of Josias Boiven, against JVicholas j\^07'wood, to vacate a patent grant for a tract of land, it w^as alleged, that the defendant in possession was committing great waste ; to stay which an injunction was asked and immediately granted until the final hearing.(Z) I have seen a case of this kind, in which, in the year (Z) The Attorney General v. Norwood. — This was an information filed in the High Court of Chancery, on the 13th of April 1775, at the relation of Josias Bowen to vacate a patent which had been obtained by the father of the defendants, for a tract of land, which the relator had previously caused to be surveyed ; but was prevented from obtaining a patent for it, by the father of the defendants having fraud- ulently contrived previously to get a patent for the same land. The information states, that in confidence of his being clearly entitled to a patent, the relator had brought his action of ejectment against the father of the defendants ; pending which action his certificate was caveated, and the caveat ruled good, by rea- son of Norwood's producing an elder patent ; which patent it is averred he had fraudulently obtained ; that afterwards the relator's action of ejectment was non pros'd with costs ; which judgment he superseded ; that Norwood, after that, con- veyed the land to his son, this defendant Nicholas N'orwood ; and, by his will, appointed his other son, the defendant Edward Norwood, his executor, and died ; that Nicholas Norwood had taken possession of the land, and was committing great waste ; and that Edward Norwood had, by scire facias, revived the judgment for costs in the action of ejectment, and threatened to sue out execution against the relator. Upon which the information prayed, that the patent obtained by Norwood might be vacated, and possession of the land delivered ; that Nicholas Norwood might, btj an injunction, be restrained from committing waste, &c. ; and that Edward Norwood might be prohibited from proceeding at law. The relator made affidavit to the truth of the facts set forth in the information ; and also gave bond to prosecute as in common cases to stay proceedings at law. Upon which, on the same day, an injunction was granted as prayed. On the 7th of July 1785, it was decreed, that the injunction be made perpetual, that the patent be vacated, and thatthe possession be delivered. — Chanc. Proc. No. 2, fol. 211. — This case is in other respects more fully repoi-ted in 2 H. & McH. 201. CoALE V. Garretson. — This bill was filed, on the 1.5th of February 1791, by Richard Coale against Job Garretson. It sets forth all the particulars of the plaintiff's case, by which it appears in substance, that on a certificate, bearing date on the 8th of Januarj- 1773, he had in April 1775 obtained a patent for a tract of land called 582 DUVALL V. WATERS. 1783, this form of a writ of injunction to stay waste pending an action of ejectment, ap})ears to have been treated as then well established ;(???) and I have met with another instance in which an Coale's Discovery. But that the defendant kad, by the fraudulent means therein stated, caused a certificate of survey of the same land to be made on the 17th of June 1772 ; upon which he had obtained a patent 5 that afterwards this defendant brought an action of ejectment and obtained a judgment. The bill alleged, that this defend- ant had been put into possession by the sheriff under a writ of possession ; and that he had issued a ca. sa. for costs, which this plaintiff had superseded ; but it is not averred, or even intimated in the bill, that this defendant had committed, or ever threatened to commit waste. Yet the bill prayed for an injunction to prevent the said Job Garretson from committing any waste on the said tract of land called CoaWs Discovery ; also to prevent the said Garretson from serving the said execution, or from proceeding any further on the said judgment ; and for general relief, &c. There was an aifidavit, in tlie usual form, of the truth of the matters set forth ; and an injunction bond. loth February, 1791. — Hanson, Chancellor. — Issue subpcena and injunction to stay execution for costs ; but not waste. The defendant on the 1-lth of December 1793, put in his answer by which he denied all fraud, and also positively denied the legality and validity of the plaintiff's title, &c. Some time after which the plaintiff, by his petition on oath, set forth and averred, that the defendant had cut down and carried away wood and timber growing on the land in controversy ; and still continued to commit waste and destruction upon the land, &.C. Whereupon he prayed for an injunction to stay waste and destruction upon the said tract of land called Coale's Discovery, 8cc. 28/A Ocioher, 1795. — Hanson, Chancellor. — Issue injunction to prohibit waste, &c. in CoaWs Discovcnj, in Baltimore county, surveyed for Richard Coale agreeably to the prayer of this petition. After which the case coming on for final hearing on bill, answer and proofs, it was on the 25th of May 1797 decreed, that the injunction be made perpetual, and that the defendant convey the land to the plaintiff. MS. — In other respects this case seems to be sufficiently reported in 1 H. 8c J. 370, 378. (?n) Mar}-land, to wit: — The State of Maryland to Michael Krips, his agents, hire- lings and servants, Greeting : Whereas Edward Flannagan of Baltimore county, and Elizabeth his wife have exhibited unto us in our High Court of Chancery their bill of complaint for relief in equity, and to stay the commission of waste in and upon part of a tract of land called Mountenay 's Neck lying and being in Baltimore county, pend- ing a certain action of ejectment brought by them the said Edward Flannagan and Elizabeth his Avife, against you the said Michael Krips, as tenant in possession of said land, or some part thereof, in the General Court of the Western Shore : We there- fore command, and shictly injoin you the said Michael Krips, your agent% hirelings and servants, and every of them to Stay, surcease and forbear digging, carrying away and removing the dirt, earth and soil of the said land and premises ; or doing or com- mitting any manner of waste, spoil, and destruction thereon, pending the said suit, or until the further order of the High Court of Chancery. Hereof fail not, as you will answer the contrary at your peril. Witness the Honourable John Rogers, Esquire, Chancellor, this 28th day of April, Anno Domini, 1783. Wm. Hyde, Reg. Cur. Can. Sec Old Book of Forms, page 13. DUVALL I'. WATERS. 5S3 injunction was granted in the year 1S03, apparently without hesi- tation, to stay waste until the final judgment in. an action of eject- ment. In which case, on its being urged that the defendant ought not to be thus deprived of the free use of his property, the court said, that he had no other mode of relieving himself from the restriction than by pressing the action at law to a conclusion as speedily as possible. (;t) I have met with many other similar cases ; but in no one of them does it appear that any objection had been made, grounded upon the principles of the English authorities, against the propriety of granting or continuing the injunc- tion, because the plaintiff had stated, that his title was disputed, or because the defendant had positively denied its validity. And (7i) GiTTiNGS V. Dew. — The bill states, that the plaintiff James Gittings was seized and possessed of several parcels of land in Baltimore county, into a part of which the defendant Robert Dew had wrongfully entered ; that the plaintiff had com- menced an action of ejectment against the defendant to recover such parts as he had entered upon, which suit was then undetermined ; that the defendant was cutting down the timber and other trees thereon and making great waste and destruction, and the plaintiff apprehended would continue to do so. Upon which the bill prayed for a suipczna and an injunction, prohibiting the defendant, his agents, &c. from cut- ting down or carrying away timber trees or other tiees or wood gi'owing and being on the land ; and from committing any tvaste thereon -until the final decision and judg- ment in the ejectment ; or until furtlier order, &,c. 14th January, 1803. — Hanson, Chancellor. — Issue sitbpcena and injunction agree- ably to the prayer of this bill. It does not appear fliat the defendant ever put in any answer to this bill. But on the petition of the plaintiff, stating that the defendant had committed waste in breach of tlie injunction, accompanied by an affidavit of Archibald Davis stating the cir- cumstances, an attachment was ordered on the 1st of January 1807 returnable to February term. The attachment having been issued and sei-ved, the defendant Dew appeared and filed his answer on oath, to the petition, in which he states, that he had cut some cordwood as alleged ; but that the plaintiff had not, as he ought to have done, caused the surveyor to lay down his claim and pretensions ; that this defendant had been assured by his counsel, that after tlie first term to which the injunction was returnable he had a right to cut wood ; that under such an impression, and firmly believing as he then did, that the plaintiff bad no right to th& land, he had cut the cordwood as stated ; but in doing so, he had no intention of setting the authority of this court at defiance ; and was ignorant that what he had done was ^v^ong. 26^/t Februanj, 1807. — Kilty, Chancellor. — The suit at law was to decide title and location, and the injunction \.o restrain waste until those points were decided. There- fore it is no sufficient answer for the defendant to say that the land was his and the location unascertained. If the plaintiff, at law, is tardy, the defendant must urge him to proceed. In consideration of the excuses contained in the answer, and the plaintiff not pressing for a commitment or fine ; it is ordered, that tlie defendant Robert Dew be discharged from the attachment on paying the costs thereof. 584 DUVALL V. WATERS. SO too in cases of nuisance, althougli it is necessary in England, that the individuals complaining of the injury should have had their rights first established at law,(o) yet here, where an action or the proper proceeding has been instituted to try the right, an injunction may be granted to prevent the repetition or further continuance of the nuisance until the right has been thus deter- mined at law or in the regular mode.(p) The writ of injunction in cases of this kind, to stay waste pend- ing a suit to try the right, has, in Maryland, taken the place and performs the office, in all respects, of the ancient writ of estrepe- ment. It is an injunction not founded on any privity of title or contract whatever ; it is an attendant upon and an auxiliary of the action at common law, or the suit in this court in which the title has been or may be drawn in question ; it follows and shares the (o) Mitf. Plea. lU.—(p) Williamson v. Carnan, 1 G. &, J. 184. Pascault v. The Commissioners of Baltimore. — 1st March, 1797. — Hanson, Chancellor. — The motion to dissolve the injunction in this cause issued, being sub- mitted, the bill and answers were by the Chancellor read and considered. When the bill was presented to him for the purpose of obtaining the injunction, it was not his idea, that this court ought to control the judgment of the commissioners. It appeared to him, that whenever they exercise their judgment on a subject, over which the law hath invested them with power, and they determine on an act to which that power is competent, they cannot with propriety be restrained. It was not his province to decide, whether or not a street should be paved, or a sewer repaired, or whether or not the intended act of the commissioners would be beneficial to a majority of the persons to be affected by the act. But he considered the power of this court rightfully exercised, on the application of any person, who is apprehen- sive of injury, in restraining a proceeding not authorized by law. He conceived, that the power conferred on them by the act of Assembly referred to in the bill does not extend to the removing a pavement already made, which was not even alleged to want repairs, and lowering a street for the avowed purpose of changing the course of waters, against the consent and remonstrance of any individual citizen, whose property is to be thereby affected. The pow'er conferred on them by the aforesaid act of Assembly, is to make, amend, repair, pave, and keep clean streets, alleys and lanes ; to make, amend and repair bridges ; and amend, and repair sewers ; and so long as they bona fide exercise only that power, they will not be restrained by this tribunal. Now supposing the extent of their power to be only doubtful, and that the com- plainants on bringing suit at law, and shewing, that they have been injured by the commissioners' completing their intended act, might recover ample damages; it is certainly better, that an unlawful proceeding be prevented, than that recourse be had to a court of law, after the injury is done. The Chancellor's opinion has not been changed by a perusal of the answers. He regrets, that the point was not argued by the counsel. It is ordered, that the aforesaid injunction be continued until the final hearing of the cause, or the further order of this court. DUVALL V. WATERS. 535 fate of that suit, and cannot be dissolved upon an answer, in any- way, denying the plaintiff's title, until that suit has been fully determined in favour of the defendant. Like an estrepement, its restrictions do not extend to an inhibition of any ordinary- use of the land by the occupying tenant ; for he is allowed to cultivate it as usual, and to take wood for fuel, repairing of houses, for fencing and the like, so he does no waste or destruction to the inheritance. It must, however, be recollected, that there is no instance of this court's ever having interposed by an injunction to prevent a mere trespass, not instant and irreparable where no suit had been instituted^ here or in a court of common law, involving the title ; for, against the granting of such an injunction, which does not operate as an auxiliary to a suit to try the right, the same reasons apply here as in England. It does not fall within the jurisdiction of a court of equity to try the validity of mere legal titles ; for all such purposes recourse must be had to the ordinary tribunals of the common law. A person can only come here to obtain the interposition of the conservative powers of this court in cases where the common law remedies are inadequate or to which they do not at all apply. If the plaintiff's title is denied, and he acquiesces in the denial by refusing to bring an action at law to have it authenticated and sus- tained, he can have no ground to ask any relief of this court, founded on a claim which he himself thus shrinks from having judicially investigated, or put into a course of being legally established. In conclusion I deem it proper to remark, that this mode of applying for this injunction by a separate bill, was irregular and improper ; it should have been asked for by a petition, filed in this case, without praying for a subpoena to bring in defendants who were already before the court. The urgency of the case may be some excuse for the irregularity ; but I shall in all cases as far as practi- cable require parties to pursue the regular and proper course. (9) In this instance, however, the injunction seems to have been extended rather beyond the bounds of the case presented by the bill itself; as to so much therefore it will be dissolved, or rather circumscribed within its proper limits. (q) Eden. Inj. 209; Anonymous, 1 Ves.jun. 93; Calvert v. Gason, 2 Scho. & Left. 561 ; Coale v. Garretson, ante 581, note. 74 586 DUVALL V. WATERS. Whereupon it is ordered, that the injunction heretofore granted in this case, in so far as it prohibits the removal of any timber or wood which had been cut and severed from the land prior to the service thereof; and also from cutting and taking away timber or wood necessary for the repairs of buildings or fences, and for the use or proper cultivation of the land, be and the same is hereby dissolved ; and that in all other respects the same be and is hereby continued until the final hearing or further order. After this the original and principal case was brought before the court. 19th May, 1829, — Bland, Chancellor. — This case standing ready for hearing, and having been submitted on the notes of the defend- ants' solicitor, and no one appearing on behalf of the plaintiff before the end of the sittings of the term according to the rules of the court, the proceedings were read and considered. Samuel Peach, having obtained a judgment at law, in Prince George's county court, against this defendant JYathan Waters, sued out a fieri facias, which was levied on certain parcels of land as his property ; whereupon the sheriff, at April term 1827 of that court, made a return in the following words : " Made by sale to Doctor Charles Duvall on the thirtieth day of December eighteen hundred and twenty-six, of all the interest of the defendant in and to the following parcels of land ; to wit, one tract of land called Pastures Enlarged, containing two hundred acres more or less ; one tract of land called Oshourne's lot and part of Pleasant Grove, con- taining fifty-two acres more or less ; one tract of land called DuvaWs Pleasure, or part of DuvalVs Pleasure, containing one hundred and fifty acres more or less ; one tract of land called Teukesbury, and a part of Teukeshury and Walker^s Delight, con- taining one hundred and fifty acres more or less ; and a tract of land called Friendship, containing one hundred and eighty acres, the sum of thirteen hundred and fifty dollars, which has been paid to me by the said Charles Duvall, and by me paid to the plaintifPs attorney." This return constitutes tlie commencement of the title of the plaintiff upon which he rests his pretensions. He alleges, that the defendant jyathan Waters, by a deed bearing date on the 17th of February 1824, conveyed the lands mentioned in this return to JVathan I. Waters, and Samuel Ratcliff ; that Ratclijf had conveyed DUVALL V. VrATERS. 587 a part of the same lands to Kathan I. IVatcrs, by a deed bearing date on the 29th of August 1825; and that these deeds were made without valuable consideration, and are fraudulent and void. Whereupon he prayed, that they might be set aside and annulled as against him. The defendants by their answer alleged, that the deeds were made bonajide, for a valuable consideration, and they objected, that the return of the sheriff was so defective, that it could give to the plaintiff no title whatever. If these deeds are really valid, as tlie defendants contend, there is an end of the matter, since it cannot be necessary to inquire into the correctness of the return for any other purpose than to ascertain how far it is available as passing the property of J\'athan Waters ; which alone was liable to be seized and sold under \\\e fieri facias. The first question then is, whether those deeds were bona fide and valid transactions or not? The deed of the 17th of February 1824, which is the principal one, carries upon its face, that which is calculated to awaken suspicion. It deals in comprehensive generalities. Such and such tracts or parcels of land by name, without any particular specification of locations or boundaries ; and, all the furniture and plantation utensils, w'ithout any schedule of them, are conveyed to the grantees. There is certainly nothing absolutely illegal in this mode of conveying property ; but real sellers and purchasers do not commonly deal so loosely. There is usually some other security required, than the purchaser's own bond merely for so large an amount of purchase money as nine thousand one hundred and fifty dollars in return for an absolute deed of this kind ; and the purchaser too, in most cases, is not content with any thing short of a precise and unequivocal description of the property he has bought and intends honestly to pay for. At the time this deed, of the 17th of Februarj- 1S24, was made, the defendant JVathan Waters, who lived upon this land, had one son and five or six daughters, all of whom were more or less depend- ent upon him. He was in embarrassed circumstances. His vounger daughters lived with him ; and his son also, was an inmate of his house, and occasionally worked with him at his trade of a millwright ; but it is somewhat doubtful whether his son \vas then of full age or not ; the witnesses differ about the fact. Samuel Rafcliff, William Beck, and Philemon Jones, with their wives, who were his daughters, also lived upon this land, and derived their 588 DUVALL f. WATERS. subsistence from it. After the date of the conveyance of the 17th of February 1824 to JYathan I. Waters, the son, and Samuel Ratdiff the son-in-law, JVathan Waters continued to hold posses- sion of the land, claiming it as his own, and exercising many unequivocal acts of ownership over it; he sold timber off it, he rented parcels of it, and gave receipts for the rent as due to himself ; and he once drove from it his son ; who, as well as Ratdiff, admitted, after the date of the deed, that they had no right to it. There is no clear unsuspicious proof, that either JVathan I. Waters or Samuel Ratdiff ever paid to J\^athan Waters any thing whatever for this land. The one, as his son, and the other, as the husband of one of his daughters, no doubt had his confidence and shared his best affections; and the more so as they were both poor and had no way of accumulating large sums of money. In short, it is clear, from all the circumstances of this case, tliat this deed, of the 17th of February 1824, was in truth, made, as JVathan Waters himself declared to one of the witnesses, merely " for the purpose of protecting his property until he could pay his debts," and, that it was a conveyance contrived with the express intent to defraud his creditors ; or as it is declared in the strong language of the venerable statute of 1570, " not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining and chevisance between man and man."(r) I shall therefore pro- nounce both these deeds, for the second must follow the fate of the first, to be utterly void as against this plaintiff if his claim under the return be a sound one. The next inquiiy, therefore, is, as to the validity of the plain- tiff's claim. The property in question was sold by tlie sheriff imder and by virtue of a writ of fieri fadas issued on a judgment obtained in an action at common law by Samuel Peach against this defendant JVathan Waters ; and this plaintiff makes title as the purchaser at that sale. But these defendants object, that the description of the lands as given by the sheriff, in his return to the fieri fadas, is so vague and uncertain as to convey no valid title to the plaintiff as purchaser. What degree of certainty in the spe- cification of the land taken and sold is necessary to be given by the sheriff, in his return to the fiieri fadas under which the levy was (?) 13 Eliz. c. 5. DUVALL V. WATERS. 589 made, is a question of importance, and deserves to be carefully considered. By the common law land was not liable to be taken in execu- tion and sold for the payment of debts. Under a fieri facias nothing, according to the common law, could be taken but chat- tels, moveable property, the industrial fruits of the earth then growing, such as corn, wheat, &c., or leases for years, of which the writ commanded the sheriff to levy the debt, by a sale, con- verting them into money. The sale of all personal property pass- ing the right without any more solemn act than a mere delivery ; a sale and delivery, by the sheriff of such property, was held to be sufficient in all cases to vest a complete and absolute title in the purchaser, without any particular specification of the thing, thus taken and sold. It was, therefore, unnecessar}' for the sheriff to make any return of a fieri facias either for his own justification, or as an evidence of the title of the purchaser of the goods ; although the sheriff might be required to make return of such an execution, so as to compel him to shew what he had done towards le^-ying the debt as commanded, and so as to enable the plaintiff, if neces- sary, to proceed further against the defendant for the recovery of the whole or the residue of his claim. (5) By an English statute passed in the year 1285,(f) lands were partially subjected to be taken in execution under an elegit, and held until the debt should be levied upon a reasonable price or extent.(w) This statute having, however, prescribed no mode of proceeding, nor required of the sheriff any return of the execu- tion ; it was held, that what was a reasonable price or extent could only be ascertained by a jury ; which inquisition by a jury, it was also held, the sheriff was bound to take and return ; because it materially affected the title to the inheritance ; and because, where an inquisition was thus required, it was fit and proper, that it should be returned to enable the court to judge of its sufficiency and of the propriety of its being placed upon the same record with the judgment, to which it was the sequel. And hence it became the established law, that all writs of elegit, under the statute, should be returned ; and that the inquisition and return should be filed as a part of the record of the case. Whence it is evident, that a title by elegit must be thus put in writing and recorded. (i') (s) Com. Dig. tit. Execution, (C. 7.)— (0 West. 2, c. IS.— (?/) 2 Inst. 394. (v) 2 Inst. 396; Dyer. ca. 71, fol. 100 ; Fulvvood's Case, 4 Co. 67; Palmer's Case, 4 Co. 74 ; Hoe's Case, 5 Co. 90 ; Underbill v. Devereux, 2 Saund. 69, note 2. 590 DUVALL V. WATERS This had been introduced as the law of Maryland and was in regular and constant operation, (zo) when it was declared, by a Bri- tish statute passed in the year 1732,(0-) that real estates, situate in the plantations, belonging to any person indebted, should be subject to the like process for selling and disposing of the same towards the satisfaction of debts as personal estate. This British statute appears to have been first introduced as the law of Maryland about the year 1740. (y) This statute, however, specified no mode of judicial proceeding, nor designated any form of execution, but, like the previous English statute, under which the proceeding by elegit had been framed, it merely declared the rule, leaving its application to be made by the courts of justice in such manner and form as they deemed best. In Maryland, for the purpose of executing and conforming to this British statute, the writ of fieri facias was so altered as to command, that the debt should be levied of '■'■ the lands and tene- ments''^ as well as of the goods and chattels of the defendant. And as an English statute passed in the year 1676, (c;) and which had been then adopted here, had declared, that no estate or interest in lands, exceeding the term of three years, should be assigned or granted unless by deed or note in waiting ; and as the acts of Assembly required all conveyances of any estate, for above seven years, in lands to be in writing and recorded ;(o) it seems to have been always considered and held, that, although the title to land, as in case of a levy of the fieri facias upon personalty, passed by the sale made by the sheriff; yet some ivritten evidence of the sale was necessary, and that such evidence should be recorded. Hence although no inquisition was required, as under the English statute giving the elegit ; yet, it seems to have been always understood, that, in all cases, where real estate was levied upon and sold, it was necessary, as an evidence of the title which had been so passed by the sale, that the fieri facias should be returned, that the sheriff should specify with sufficient certainty in his return the real estate which he had so sold, and that the return so made by him should be recorded. (6) Upon these general principles it has been laid down, that a return of a sale of lands under a fieri facias should regularly, for (w) Kilty's Rep. 144.— (a:) 5 Geo. 2, c. 7.— (?/) Davidson's Lessee v. Beatt)% 3 H. & McH. 612.— (r) 29 Car. 2, c. 3, s. 3.— (a) 1715, ch. 47.— (6) Bull v. Shcre- dine, 1 H. &, J. 410 ; Boring j;..Lemmon, 5 H. & J. 223 ; Barney v. Patterson, 6 H. &. J. 204. DUVALL V. WATERS. 59 j the security of purchasers, describe the premises with precision ; but it is enough if the description be such as that the property sold may be clearly identified, or sufficiently known and ascertained. It is not necessary, that it should be specified with technical minute- ness. Thus if the land be described as, " one tract of land called Habitation Rock containing 360 acres more or less, situate in North Hundred, Baltimore county ;"(c) or as " all that part of the tract of land called Charles 8f Benjamin, wdiich was devised to E. D. B. by his father R. B. ;"(d) or by a particular name, as " a tract of land called Borough Hall, containing the supposed quan- tity of 130 acres of land more or less,"(e) it is sufficient. Because the sheriff, not having the title deeds within his reach, cannot be presumed to have it in his power to give a more particular descrip- tion of the land he sells. (/") But w^here it was designated by names common to all similar property, as thus ; " to dwelling- house, gristmill, sawmill, and fullingmill, and all other buildings belonging thereunto, with one hundred acres of land joining the said property," the return was held to be defective for want of a specification : [g) and so too where the return described the land as "part of Resurrection Manor, containing 251 acres more or less ;" it was held to be void for uncertainty ; because there was nothing by which it could be ascertained whether that part was to be located on the north, south, east, or west, of the whole tract. But in this latter it was admitted, that the return would have been good if it had designated a whole tract by any distinct name or description, such as a tract of land called part of a tract ; and not as a tract of land being part of a tract called Resurrection Manor. [h) According to these decisions and principles the return under consideration must be deemed sufficient when taken either alto- gether or in its several parts. The property sold is described as consisting of several parcels of land. First, of " one tract of land called the Pastures enlarged^ About this there can be no doubt. Secondly, of " one tract of land called Osbourneh lot and part of (c) Boring v. Lemmon, 5 II. &. J. 223.— ((Z) Berry v. Griffith, 2 H. & G. 337. (e) Thomas's Lessee v. Turvey, 1 H. & G. 435.— (/) Barney v. Patterson, 6 H. & J. 204 ; Scott u. Bruce, 2 H. & G. 2C2; Beny v. Griffith, 2 H. & G. 337 ; Underhill V. Devereux, 2 Saund. 68 f.— (g) Williamson v. Perkins, 1 H. Sc J. 449 ; McElderry V. Smith, 2 H. &, J. 72 ; Fitzhugh v. Ilellen, 3 H. & J. 206.— (A) Fenwick v. Floyd, 1 H. & G. 172; Purl's Lessee v. Duvall, 5 H. & J. 69 ; Waters v. Duvall, 6G. &. J. 76. 592 DUVALL V. WATERS. , Pleasant Qrove.^^ This is a designation of one entire tract of land of such a name ; it is not, as seems to have been supposed, a sale of an uncertain part of a tract of land called " Pleasant Grove ;" and therefore the description of this parcel also is sufficiently cer- tain. Thirdly^ of "one tract of land called DuvalPs Pleasure or part of DuvalPs Pleasure.'''' This is a designation of one whole tract having the one or the other of two names, and is, therefore, a sufficient description. Fourthly^ of " one tract of land called Teukesbury and a part of Teukesbury and Walker'' s Delight. ^^ This description also clearly refers to and designates one parcel of land as a whole and not as a part of a tract. And lastly, of " a tract of land called Friendship.''^ This description is confessedly sufficient. Hence it clearly follows, that as this return is sufficiently descrip- tive in its several parts, it must be so considered as a whole, and when taken altogether. Consequently this plaintiff, who has been thus returned as the purchaser, has thereby obtained such a valid right to the lands held by the defendant JVathan Waters, as entitles him to have the fraudulent deeds complained of set aside so far as they at all interfere with his claim. Whereupon it is decreed, that the said deed bearing date on the 17th day of February 1824, and also the deed bearing date on the 29th day of August 1825, and the records thereof be and the same are hereby set aside and declared and directed to be held, deemed and taken to be utterly null and void to all intents and purposes whatever, so far as the same may interfere with or in any manner affect the right and claim of the said plaintiff Charles Duvall, unto the several parcels of land specified in the said return to the said w^it of fieri facias, by which it appears he became the purchaser thereof as in the proceedings mentioned. HILL V. BOWIE. 593 HILL V. BOWIE. An injunction to stay waste pending an action at law is in natuveof a writ of esirepe- ment. The restriction of such an injunction should in its commencement be coextensive with the plaintiff's pretensions as set forth here or in his suit at law. But after the suit, which had been instituted here or at law to try the right, has been determined, then, according to the nature of that determination, the injunc- tion may be altogether dissolved, or be made perpetual only to the extent to which the plaintiff has recovered. This bill was filed on the 14lh of December 1S26, by Morgan Hill against Daniel Bowie. It states that the plaintiff was in pos- session of a part of a tract of land called Grammar^ s Chance^ to which he had a good title in fee simple ; that the defendant had committed waste upon it by cutting down timber trees ; and that he, this plaintiff, had brought an action of quare clausum f regit against the defendant to try the title to the land ; which action was then depending. Whereupon the plaintiff prayed for an injunction to stay waste, &c. An injunction was granted as prayed. The defendant put in his answer, in which he admitted, that the plaintiff was entitled to a certain part of the tract of land as stated ; but he averred, that a part of the same tract of land belonged to his, the defendant's wife, the boundaries of which part had been well ascertained ; and the defendant denied, that he had committed any waste as charged by the bill. On the 11th of September 1828 the plaintiff filed a supplemen- tal bill in which he alleged, that he had obtained a verdict and judgment in his action of trespass ; and thereupon prayed, that the injunction might be made perpetual. The defendant, by his answer to this supplemental bill, admitted, that the plaintiff had recovered a judgment as stated ; but averred, that although by the verdict it had been ascertained, tliat a jjurt of the land, on which it appeared the defendant had trespassed, was the property of the plaintill ; yet it had not ascertained the claim and pretensions of the plaintiff' to be as extensive as in las bill he !iad supposed, 2bth February, 1829. — i3LAND, Chancellor. — This case having been submitted on bill and answer, the proceedings were read and considered. An injunction of this description is in the nature, and in all respects performs the office of the ancient writ of estrepement. It 75 594 HILL V. BOWIE. is an attendant upon the action at common law ; and, as its inse- parable ally, follows its fortunes, and must submit to its fate, (a) The restriction of this kind of injunction, in its commencement, must, from its nature, be coextensive with the pretensions of the plaintiff as made in his bill in equity and action at common law. But if, in that action, the plaintiff fails to recover entirely accord- ino- to his pretensions, the injunction can be perpetuated to the extent of his recovery only and no further ; and upon the same principle, if the plaintiff fails in his action at law altogether, the injunction must be totally dissolved. In this case it does not distinctly appear, by the proceedings, how far the plaintiff has failed in sustaining his pretensions at law. The defendant by his answer, which is to be taken for tme in this mode of submitting the case on bill and answer, avers that the judgment at law^ does not ascertain the plaintiff's pretensions to be as extensive as in his bill it would appear he supposes. Hence although it must be taken for true, that there is some difference between the extent of the plaintiff's pretensions, wdiich he asked to have protected by an injunction, and his actual recovery, yet that difference is in no manner designated by this vague allegation of the defendant, or by any thing to be found in the proceedings. If the unequivocal extent of the future operation of this injunction be of the importance tte parties now seem to consider it, the exact extent of the plaintiff's pretensions, as established by his judgment at law, should have been clearly and distinctly shewn to this court to enable it to limit the injunction accordingly. But a judgment in the general terms that this appears to be, must, without some equally authentic evidence to the contrary, be taken as sufficiently shewing, that the injunction should continue to operate to the full extent of its original scope. Whereupon it is decreed, that the injunction heretofore granted in this case be and the same is hereby made perpetual ; and that the said defendant pay unto the said plaintiff the costs of this suit to be taxed by the register. («) Duvall V. Waters, ante, 569. THE CHANCELLOR'S CASE. 595 THE CHANCELLOR'S CASE. The circumstances and causes wliich led to the adoption of the thirtietli article of the Declaration of Rights relative to judicial independency. The manner in which the several provisions of that article were introduced and established. A salary once given to, or which has become legally vested in a Chancellor or judge cannot, during the continuance of his commission, be in any way constitutionally withheld or diminished. The General Assembly are constitutionally bound to give a salary to a Chancellor or Judge, which shall be secured to him during the continuance of his commission ; but they may, by temporary appropriations, or in any other form, provide for the payment of such a salary. This was a controversy which originated between the House of Delegates and the Senate, at the December session 1824, of the General Assembly of Maryland, respecting the salary of the Chan- cellor. No charge or imputation, of any kind w^hatever, was made, by either house, against the Chancellor ; nor does it appear, that any complaint had been made, to either house, against him, by any one ; except that contained in a petition presented by Hugfi Thompson to the Senate without any previous application to the Chancellor, praying to be permitted to appeal from an order which had been passed by the Chancellor on the 12th of February 1825, in the case of McKim v. Thompson. Although the Chancellor was not, in any way, directly made a party to this controversy between the then two houses of the General Assembly ; or notified by either house of its existence ; yet as his interests were deeply involved, he was thereby virtually made a party ; and therefore, at the next session of the General Assembly, he claimed the right to appear, to defend his interests and to maintain his constitutional independency. Accordingly he presented the following memorial, and on the third day after the commencement of the session furnished each member with a printed copy thereof. By a note to the case of McKim v. Thompson, {ante, 111,) the reader has been referred to this case. The mere principles of law involved in that case can have no bearing upon this. In those respects the two cases can have no sort of connexion with each other. But on an attentive consideration of the various move- ments in the December session of 1824, of the General Assembly, as carefully stated in the following memorial, it cannot Aiil to be perceived, that, for some time previous to the passing of the order of the 12th of February 1825, in the case of McKimr. Thompson, 596 THE CHANCELLOR'S CASE. and at that time, an exceedingly angry excitement prevailed against the Chancellor, who had been appointed no longer than the month of Au. FoRWOOD. "Memorandum. — This 22d day of February 1725, his Honoiu: the Chancellor . acknowledges to have received of Mr. Plater by order of his Honour the Governor copies of several orders of the king and council, to wit, one of the 11th of August 1720 ; one other of the 30th of April 1724 ; and one other of the 4th of July 1724 ; and ordered tlie same to be entered in the proceedings of this court to avail so far as they ought ; which orders are in the words following, viz : "At the Council Chamber,Whitehall, the 1 1th August 1720, present their excellencies the Lords Justices, &c. (Here follow the names of the members of the council.) " Upon reading this day at the board a report from the Right Honourable the Lords of the committee for hearing appeals and complaints, &.C., from the plantations, dated the 4th of this instant in the words following, viz : Whereas by an order in council of the 26th instant referring to this committee the humble petition oi Jonathan Foncood, complaining of several unjust proceedings against him, and his agents in the coui'ts of judicature in the Province of Maryland at the suit of one Gilbert Poidson master of tlie ship Dolphin, touching an agreement entered into between them, for tlie said Powlson to ti'ansport from England to the said Province and to Virginia, one hundred and thirty-one servants ; on account whereof, the petitioner alleges, the said Powlson has obtained two attachments against his effects there, one of them for one hundred and sixty pounds which he actually received, and the other for seven hundred pounds for which he has sold good part of the petitioner's effects in his hands ; and humbly praying to be relieved in the premises. " Their Lordships this day took the same into consideration, and having heard the petitioner by his counsel therein, do agree humbly to report their opinion, that upon 3Ir. Forwood's giving such security as the Governor and Council of Maryland shall think sufficient to answer the said Powlson^s demands, his goods in specie shall be restored to him, or, in case they are sold, he shall be paid the money arising from the sale thereof; and that thereupon the Provincial Court do proceed to hear and deter- mine the cause or causes with liberty for either party to appeal therefrom. " Their excellencies the Lords Justices in Council taking the said report into consideration are pleased to approve thereof, and to order as it is hereby ordered, that upon 3Ir. Forwood's giving such security as the Governor and Council of Mary- land shall think sufficient to answer the said Poivl soil's demands, his goods in specie shall be restored to him, or in case they are sold he shall be paid the money arising from the sale thereof; and that thereupon the Provincial Court do proceed to hear and determine the cause or causes with liberty for either party to appeal from such determination ; whereof the deputy governor, or commander in chief for the time being of the Province of Maryland, and all others whom it may concern are to take notice, and govern themselves accordingly." ^ " At the court of St. James's, the SOth day of April 1724. Present, the King's most Excellent Majesty, &c. (here follow the names of the members of the council.) Upon reading this day at the board a report from the Lords of the committee for hearing appeals, complaints, Stc. fi-om the plantations, &c. (here follows tlie report i THE CHANCELLOR'S CASE. 611 merated as one of their grievances, (e) In the year 1767 the Bri- tish Parliament passed those other acts, for laying internal taxes upon the colonists, commonly called the revenue acts. Upon these of the committee in relation to other matters in the before mentioned case of Powl- son V. Forwood.) " His Majesty in council taking the said report into consideration, is pleased to approve thereof, and accordingly to enforce the said order of the 11th of August 1720, and to that end his Majesty is hereby pleased to order, that the Deputy Governor of the said Province of Maryland do command the courts there to caiTy the said order into immediate execution, by causing speedy restitution to be made the said peti- tioner of his effects, or, in case they are sold, immediate payment of the money aris- ing therefrom. And his Majesty taking particular notice, that the said Deputy Governor hath not complied with the said former order in council, is hereby further pleased to order and require him forthwith to send an account to this board why the said order w-as not carried into execution, together with his reasons for the same." "At the court at Kensington, the 4th day of July 1724. Present, the King's most excellent Majesty, &c. (here follow the names of the members of the council.) Upon reading this day at the board a report from the right honourable the Lords of the committee for hearing appeals from the Plantations dated on the 17th of June last in the words following, viz : (here follows the report in relation to the before men- tioned case of Foidson v. Forwood, which concludes in these words, to wit :) " Their Lordships having heard counsel on behalf of the appellant, none appearing for the respondent, notwithstanding the usual time for his appearing according to the rules of this board was expired, and although the usual notice was affixed on the exchange of London, do agree humbly to ofler it as their opinion to your Majesty, that the said judgments of the 20th of September 1720, and the 7th of May 1723, should be reversed and set aside ; and that the appellant be restored to all he hath lost by means of the said judgments." " His Majesty in council taking the said reports into consideration is pleased to approve thereof, and to order as it is hereby ordered, that the said judgments of tlie 20th of September 1720, and the 7th of May 1723 be reversed and set aside. And that the appellant be restored to all ho hath lost by means of the said judgments whereof the deputy governor or commander in chief for the time being of the said Province of Maryland, and all others whom it may- concern are to take notice and govern themselves accordingly." — (Chan. Procc. lib. I. R. No. J,fol. 57; 1692, cli. 17, note ; Bacon's Laws of Maryland.) If the appellant failed to transmit a properly authenticated transcript of the record ; or to proceed with his appeal within one year after it had been allowed in the colony, the appeal might be dismissed, (2 Ld. Raym. 1447.) No costs were allowed on the final determination of such appeals, or at least not as a matter of course, (4 DaJl. opp. 25 ; 2 Ld. Raym. 1447.) In all cases a decision by the king in council was final and conclusive ; and there was no instance of a rehearing of any such appeal, (1 Ves. 455.) An opinion seems to have been entertained by some, that the king in council might of himself, and directly, issue an execution ; and have a writ of sequestration in execution of his final judgment sent to the governor of the colony, ( Gilb. For. Rom. 215 ; 2 P. Will. 262.) But no coercive process was ever attempted to be issued by the king in council against a colony itself; and if it had been attempted there is every reason to believe, that it would not have been endured, (2 Hutch. His. Mass. 204.) <«) 1 Niles's Reg. 13, 65, 612 THE CHANCELLOR'S CASE. acts reaching this country, the Massachusetts Assembly, on the 11th of February 1768, addressed a circular letter to the speakers of the other assemblies, stating the grounds of their opposition to them ; that they had forwarded petitions and remonstrances against the late duties ; and then say, that " they have also submitted it to consideration, whether any people can be said to enjoy any degree of freedom, if the crown, in addition to its undoubted authority of constituting a governor, should also appoint him such stipend as it shall judge proper, without the consent of the people, and at their expense ; and whether, while the judges of the landy and other civil officers in the province, hold not their commissions dur- ing good behaviour, their having salaries apjyointed by the crown, independent of the people, hath not a tendency to subvert the princi- ples of equity, and endanger the happiness and security of the sub- ject.^^ This letter, by the express command of the British minis- ter, w'as by Governor Sharpe of Maryland, in a message of the 20th of June 1768, to the House of Delegates, denounced as a dangerous and factious attempt to disturb the public peace ; and the House was requested " to take no notice of it, which would be treat- ing it wdth the contempt it deserves." In reply to which message, the House, among other things, say, " be pleased to be assured, that we cannot be prevailed on to take no notice of,.or to treat loith the least degree of contempt a letter so expressive of duty and loyalty to the sovereign, and so replete with just principles of liberty.^'' Immediately upon the receipt of which reply the House of Dele- gates was prorogued by the governor, (y) The attention of the colonists of this country having been thus, for the first time, solemnly drawn to the nature and importance of judicial independency, the subject was universally and thoroughly discussed ; and soon became familiarly and perfectly understood. If England had seen, and ascertained the necessity of a dependent and subservient judiciary to enforce the acts of trade, and the acts for raising an internal revenue ; the colonies, on the other hand, now saw as clearly, and became as thoroughly convinced, that an impartial, firm, and tnc^epenc?en^ judiciary was no less necessary for the preservation of their rights and liberties. It was agreed, on both sides, that laws, whether good or bad, were futile without suitable agents to execute them. In consequence of the opposi- (/) Votes and Proceedings House Delegates, 22d June 176S, and tlie Council proceedings of the same time. 1 Piik. His. 458, 461. THE CHANCELLOR'S CASE. 613 tion which the colonists made about this time, England withdrew her pretensions for a season, but soon after renewed them in another form. To oppose this renewed attack another colonial Congress was assembled at Philadelphia, who on the 14th of October, 1774, agreed to and published, " a declaration and vindication of the rights and liberties of the English colonies in North America." This second ^ colonial Congress is universally acknowledged to have been one of the most enlightened, illustrious, and patriotic bodies of men ever convened in any age or nation. Upon the subject of judicial independency their language is strong and une- quivocal. After enumerating the several acts of Parliament by which the jurisdiction of the colonial tribunals was superseded ; and that of the subservient vice-admiralty^ and other courts substi- tuted in its place, among other causes of complaint, this Congress thus conclude their Declaration of Rights : "To these grievous acts and measures Americans cannot submit, but in hopes their fel- low subjects in Great Britain will, on a revision of them, restore us to that state in which both countries found happiness and pros- perity, we have, for the present, only resolved to pursue the fol- lowing peaceable measures. 1. To enter into a non-importation, non-consumption, and non-exportation agreement or association. 2. To prepare an address to the people of Great Britain, and a memorial to the inhabitants of British America. And 3, To pre- pare a loyal address to his majesty; agreeable to resolutions already entered into." In their address to the king, prepared and published in pursuance of this resolution, they complain, among other things, that "the judges of admiralty and vice-admiralty courts are empowered Jo receive their salaries and fees from the effects condemned by themselves.''^ And, in the same address, they further complain, that " the judges of courts of common laio have been made entirely dependent on one part of the legislature for their salaries, as well as for the duration of their commissions. '''{g) (g) The Journals of Congress, 14th October, 1774. Hastings v. Plater. — This bill was filed on the 1.3th of February 1735, by- Samuel Hastings, Samuel Minskie, and John Evitt, against Benjamin Tasker, George Plater, and Onorio Rozolini, executors of Rebecca Calvert deceased, who was admin- istratrix of Charles Calvert deceased. The bill stales, that the late Richard Smith, in his lifetime formed a plan for causing a ship to be built by subscription in the city of Annapolis, in which each subscriber was to hold a share in proportion to the sum by him subscribed ; that, having obtained from several persons subscriptions to a 624 THE CHANCELLOR'S CASE. This Congress asserted and maintBined the rights of their fel- low-citizens as EngUshmen ; and, following the example of " their large amount, he employed the plaintiffs to build a ship as proposed, and engaged Patrick Simpson, since deceased, to take charge of her when built as master : that the plaintilis in compliance with their agreement built and launched a ship, w^hich was called the Maryland Merchant, and the greater part of hel- rigging, tackle, and furniture, were bought and set up in her, and several officers and sailors were hired to navio-ate her on her intended voyage ; but Smith having received all or the greatest part of the subscription money, embezzled so much of it, that he was unable to fit her for sea ; that he had not paid these plaintiffs for their work and labour, and had besides involved them and Patrick Simpson in liabilities for several considerable sums of money on account of the ship ; that the subscribers and contributors to the building of the ship in this state of things, seeing their prospects of deriving any advantage from their subscriptions to be almost hopeless, and feeling kindly disposed to enable these plaintiffs if practicable to obtain some reimbursement for their losses, transferred and assigned all their interest in her, except some sails paid for on account of D. Dulanj', to the value of £\20, to these plaintiffs and Patrick Simpson. That afterwards some of the seanien, who had been hired on account of the ship, instituted a suit in the vice-admiralty court of this province before the Honourable Charles Calvert then judge of the said court, against the ship and tackle, &,c., and by a decree of that court she was condemned and sold for the sum of £, 600, which was brought in and deposited with the said judge of the vice-admiralty court ; out of which the seamen's wages having been paid there was left a balance of £.309; after which Patrick Simpson was paid £102, and William Cummings £6, leaving a residuum of £201 ; to which these plaintiffs are entitled as assignees of the subscribers. That Charles Calvert the Judge having that money in his hands died intestate, and admin- istration on his estate having been granted t6 Rebecca Calvert, she thus obtained it ; after which she by her last will appointed these defendants her executors and died, and these defendants having taken upon themselves the execution of her will, thus became liable for that amount to these plaintiffs : Whereupon they prayed that tlic defendants might be compelled to pay them the said sum of money, &c. On the 17th of February, 1735, the defendant Benjamin Tasker disclaimed any interest in, or any authority to intermeddle with the money mentioned in 'the com- plainant's bill, he having before the Commissary General entered on record his renun- ciation of the executorship of the testament of Rebecca Calvert deceased; and he also disclaimed any right w'hatever to the administration of the estate of Charles Calvert deceased. The two other defendants by their answer admitted the facts set forth in the bill ; but they averred, that the said Charles and Rebecca had made no profit fi-om the money in their hands ; that they as well as these defendants had always been and were then ready to pay the same to any persons justly entitled to it, and to whom they could be safe in paying it, &c. The case was thus submitted on bill and answer. 17/A February, 17.36.— Ogle, C/wRcrZ7or.— -Decreed, that the defendants George Plater and Onorio Rozolini do pay and deliver unto the complainants the said sum of £201 currency, upon such security being^iven to the master of this court as he shall judge sufficient by a bond of the penalty of £400 currency, payable to him, with condition to pay and satisfy to any person or persons such proportion of the said £201 as such person or persons shall appear to be justly entitled to after deduction of costs expended in this suit by both parties, which is hereby ordered and directed to be paid out of the said sum of £201 currerj^y.—C C/ian. Proce. lib. I. R. No. 2, fol. 761.) THE CHANCELLOR'S CASE. 615 ancestors in like cases," had recourse to precedent as well as to argument. In the English statute book they found the most une- quivocal authority in favour of that judicial independency, to the benefits of which, they thus contended the colonists were fully entitled; By the famous English statute, passed in the year 1700, (13 W. 3, c. 2,) for the better securing the rights and liberties of the subject, it is enacted and declared in these words ; " that judges' commissions be made quamdia se bene gesserint, (during tlieir good behaviour,) and their salaries ascertained and established ; but upon the address of both Houses of Parliament, it may be lawful to remove them."(A) (A) The Long Parliament, says the historian of the Commonwealth of England, deserves to be for ever held in grateful remembrance for the gi-eat improvements we derive from them in points most essential to the independence and freedom of man in society. Among which is that which ^elates to the tenure by which the judges, who are appointed to determine questions of law between man and man, and between the sovereign and the subject, hold their offices. One of tlie earliest decisions of that parliament was the vote condemning the judgment which had been given for the Icing in the matter of ship money. And shortly after, Januaiy 1643, the house of Lords appointed a committee to consider, among other things, of the judges holding their places durante beneplacito. The next day they deputed seventeen of their body to present their humble desire to the king, that the twelve judges, and the attorney of the court of wards, might hold their places by patent, quamdiu se bene gesseriiit. They accordingly waited on Charles with their request ; to which he signified his eissent. Agreeably to this decision, in the petition of both houses of parliament pre- sented to the king at Oxford, at the close of the first campaign of the civil war, they make it one of their demands, that the twelve persons whom they name for the office of judges, as weU as all the judges of the same courts for the time to come, should hold their places by letters patent quamdiu se bene gessennt.^{ Godw. Com. Eng. b. 3, c. 29.) Immediately after the king had been put to death it was enacted by the Long Par- liament, that the commissioners of the great seal should also hold their offices during good behaviour, (3 Godw. Com. Eng. 11.) But this important improvement as to the tenure by which the judges and chancellor were to hold their. offices, was, on the restoration of Charles the second, entirely put aside, and nothing more said upon the subject until some time after the English revolution of 16S8, when it was enacted by the statute of the 12 k. 13 W. 3, c. 2, that the judges §liould hold their commissions during good behaviour; still however leaving tlie Chancellor to hold, as formerly, during pleasure. In an opinion of the attorney and solicitor general D. Ryder, and W. Murray, given on the 22d of June 1753, to the commissioners of trade and plantations respect- ing an act passed by the General Assembly of Jamaica, providing, that all tlie judges of the supreme court of judicature of the island should hold their offices quamdiu se bene gesserint, they say, that " it directly aficcts the royal prerogative, i;i a point of great moment, and for which no occasion is pretended fo be given, by the abuse of any power committed to the governor ; or, if there had been any, it would be much more suitable to his majesty's honour and dignity, to reform it, by his own autho- ritj', fully sufficient for tliat pui-pose, in such manner, as to his royal wisdom should seem meet, than by the interposition of an act of Assembly ; nor does it appear to 616 THE CHANCELLOR'S CASE. Not quite two years after the meeting of the second Colonial Congress, the United States declared themselves independent ; and, in their Declaration of Independence, among the wrongs they charge upon the British king, and as one of " the causes which impelled them to the separation," it is alleged, that " he has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.^'' After all these ample discussions and close investigations of the rights of the people, and after the publication of all these solemn acts, the convention of Maryland was convened, in the month of August, 1776, to establish a form of government for the State. The great field of politics had been fearlessly and diligently us, that in the situation, and circumstances, in which this island, or the other Ame- rican plantations, stand, it would be advisable, either for the interests of the planta- tions themselves, or of Great Britain, that the judges in the former should hold their places giiamdiu se bene gesserijit." — (2 Chal. Opin. Em. Law, 105.) "The next general point yet undetermined, (said Governor Pownall in 176S in speaking of the colonial governments,) the determination of which very essentially imports the subordination and dependence of the colony governments on the govern- ment of the mother country, is, the manner of providing for the support of govern- ment, and for all the executive officers of the crown. The freedom and right efficiency of the constitution require, that the executive and judicial officers of government should be independent of the legislative ; and more especially in popular governments, where the legislature itself is so much influenced by the humours and passions of the people ; for if they do not, there will be neither justice nor equity in any of the courts of law, nor any efficient execution of the laws and orders of government in the magistracy ; according, therefore, to the constitution of Great Britain, the crown has the appointment and payment of the several executive and judicial officers, and the legislature settles a permanent and fixed appointment for the support of government and the civil list in general. The crown therefore has, a fortiori, a right to require of the colonies, to whom, by its commission or charter, it gives the power of government, such permanent support appropriated to the offices, not the officers of government, that they may not depend upon the temporary and arbitrary will of the legislature." And again he says, " the point then of this very important question comes to this issue, whether the inconveniences arising, and ex-perienced by some instances of mis- applications of appropriations, are a sufficient reason and ground for establishing a mea- sure so directly contrar)'- to the British constitution : and whether the inconveniences to be traced in the history of the colonies, through the votes and journals of their legisla- tures, in which the support of governors, judges, and officers of the crown will be found to have been witliheld or reduced on occasions, where tlie assemblies have supposed that they have had reason to disapprove the nomination, — or tlie person, or his conduct ; — whether, I say, these inconveniences have not been more detri- mental, and injurious to government; and whether, instead of these colonies beijjg dependent on, and governed under, the officers of the crown, tlie sceptre is not reversed, and the officers of the crown dependent on and governed by the Assem- blies, as the colonists themselves allow, that this measure renders the governor and all other servants of Ihe crown dependent on the Assembly." — (Povm. Adm. Colo. 76, 78; Smiili's His. N. York, 118; 1 Pilk. His. 126 ; 7 Mass. His. Sod. 129.) THE CHANCELLOR'S CASE. ' 617 explored in every direction ; and the soundest and most approved political axioms were laid before that convention. It appears, that none of those principles and solemn acts, in which their fellow'- citizens had taken a deep interest, were overlooked, or suffered to escape their attention — of which the following comparison will afford one, among the many proofs, that might be adduced. In the Colonial Declaration of Rights of the 14th October, 1774, among other things, it was declared, " that the respective cobnies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization ; and which they have, by experi- ence, respectively found to be applicable to their several local and other circumstances." By the third article of the Declaration of Rights of this State, it is declared, " that the inhabitants of Mary- land are entitled to the common law of England, and the trial by jur}^, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances." This coincidence, of sense and language, could not have been merely accidental ; it therefore proves, that those several antece- dent declarations of the rights, and of the independence of the people of this country, were the sources whence many of the pro- visions of the Maryland Declaration of Rights were almost literally taken; that the complaints of the grievances, arising from a dependent and subservient judiciary, as expressed in the previous Declarations of 1765, of 1774, and of 1776, were then actually before the Marjdand convention ; and, that the judicial indepen- dency, spoken of in our constitution, was intended to be analogous to, but more perfect, than that specified in the English statute, of 1700, which had become so well understood, and was so solemnly and generally approved. In a word, it is manifest, from all the public acts, discussions, and circumstances of those times, that the thirtieth article of our Declaration of Rights must be reo-arded as the condensed expression of those opinions and principles, relative' to judicial independency, to establish and sustain which all united America fought, bled, and triumphed. Such is the history of this provision of our Declaration oi Riorhts. relative io judicial independency. Let us now attentively consider 78 G18 THE CHANCELLOR'S CASE. the article itself; first as relates to its general character, and then analyze and investigate its several parts. The article is in these words : " That the independency and uprightness of judges are essen- tial to the impartial administration of justice, and a great security to the rights and liberties of the people ; wherefore, the chancellor and all judges ought to hold commissions during good behaviour : and the said chancellor and judges shall be removed for misbe- haviour, on conviction in a court of law, and may be removed by the governor, upon the address of the General Assembly : provided, that two-thirds of all the members of each house concur in such address. That salaries, liberal, but not profuse, ought to be secured to the chancellor and the judges, during the continuance of their commissions, in such manner, and at such time as the legislature shall hereafter direct, upon consideration of the circumstances of this State. No chancellor or judge ought to hold any other office, civil or military, or receive fees or perquisites of any kind." The objects contemplated by this article are the personal quali- fications of an individual. It looks altogether to man as a moral agent ; and proposes to sustain and fortify those excellencies and capacities which fit him to be entrusted with judicial power ; and to provide against those passions and frailties which may occasion an abuse of such power. This general character of this article will be more distinctly understood by contrasting it with some other provisions of the constitution, which speak of collective bodies, of divisions, and of departments of power. Thus, it is declared, " that the legislative, executive, and judi- cial powers of government, ought to be for ever separate and dis- tinct from each other." In this there is no reference to personal and moral qualities ; it speaks merely of the artificial political divi- sions of power ; and directs each one of them to confine itself within its own proper sphere. Again, it is said, "that no aid, charge, tax, burthen, fee or fees ought to be set, rated, or levied under any pretence, without the consent of the legislature ;(i) that (t) This peculiar expression in the twelfth article of the Declaration of Rights, refers to that controversy which originated in the year 1770, between the Proprietaiy Governor Eden, and the House of Delegates, as to the power claimed by the Gov- ernor and Council to settle tlie rate of ofiicers' fees by proclamation without tlie con- sent of the people through their Delegates. This claim of the last provincial governor was strikingly analogous to tliat set up by the mother country to levy taxes by act of parliament without the consent of the representatives of the colonists. It THE CHANCELLOR'S CASE. 6I9 no law to attaint particular persons of treason or felony ought to be made in any case, or at any time hereafter ; that excessive bail ■ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted by the courts of law." These restrictions relate to the executive, legislative, and judicial powers respectively ; they refer to masses of power, or modes of authority ; and declare, that they shall be restricted to a certain extent, and confined within certain boundaries. This tliirtieth article does not speak of the quantity, quality, or extent of judicial, or any other sort of power; laying aside every thought upon those subjects, it gives us to understand, that be the extent and nature of the judicial power what it may, it is of vital importance to have suitable agents to execute it. This article contemplates the moral and intellectual qualities of the man who is the public agent. " The independency and uprightness of judges ;" that is, the firmness, the honesty, the skill, and the resolution with which the men appointed to fill judicial stations, will resist all threats, temptations, and undue influence. It is these personal and moral qualities which " are essential to the impartial adminis- tration of justice, and a great security to the rights and liberties of the people." To sustain these qualities, and to prevent a deviation from these moral principles, is the sole object of this article ; and is that which gives to it its peculiar features and character. After having thus distinctly indicated the human excellencies which are required for judicial stations, this article then proceeds to prescribe the mode in which those excellencies shall be sus- tained. It directs the manner in which deviations from them may be corrected and punished; and then concludes by removing from about the judicial office one class of the temptations by which it had been previously beset. That is, the judge is to be supported in the firm, independent, and impartial discharge of his official duty, by being commissioned during good behaviour; and also by having his salary secured to him during the continuance of that commission ; he is to be punished for misbehaviour by removal ; and he is not, as formerly, to be exposed to the temptation to go is to this claim of settling the foes by proclamation, that the first legislative enact- ment of the republic upon the subject of fees alludes by declaring, that officers' fees can be rated, regulated and established by act of Assembly only. — [October 1777, ring pleasure, as Governor E 2666.66, and to the same person as Chancellor in fees. 1866.66 in fees 266.66 Justic the p es of eace 1866.66 1500.00 53333 Votes & Pro. H. Del. Dec. 21 no pay. 1779; 7 Mass. His. So. 202. ■6 1777 Resolution Ilih April, 1777 SOO.OOj NoJudge Justic es of «4pe r day. | No | ^ 1778 Resolution 12tli December, 1777 2000.00 800.00 the p eace same same Judges g 1779 Resolution 8lh December, 1778 3333.33 1200.00 no pay. 2986.66 2500.00 1333.33 a And by a Resolution of 29th p -a December, 1779, as a com- C 2333.33 1800.00 .3749-33 g pensati >n for this year ) >^17S0 Resolution 24th December, 1779 33333.33 3000.00 2400.00 2403.00 8900.00 g 17S1 Resolution 3J January, 1781 1600.00 533.30 1333.33 1333.33 533.33 .2 1782 Civil list act 1731 ch. 29 . . 2000.00 same — — same same same a 1733 Civil list act 1732 ch. 23 . . 1600.00 same • same same same > 1784 Civil list act 1733 ch. 31 . . same same same same same ^ 1785 Civil list act 1784 ch. 68 . . 1733.33 666.66 same same same d 1786 a 1787 By 1785, cli. 27 and 71 . . . 1733.33 533.33 666.66 1600.00 1333.33 533.33 By 1785, ch. 27; 1786, ch. 41 ; ■) - 2 1737, ch. 6; 1788, ch. 41; 1739, '5 to ch. 49; 1790, ch. 52; 17.11, > same 266.G6 same 1066.66 «2.66 same same same § ch. 74; and 1790, ch. 33; in a day " 1792 Districts of Counties . . =■'5? ■S 1793 By 1785, ch. 27; 1790, ch.aS; ) 2533.33 S is .a* same same same same same ■g lo'9i3 and 1792, ch. 76 . . . . S "5 ^ M 1797 By 1735, ch. 27 ; 1792, ch. 76; } ° =*^ .a Resolution November 1796 ^ 2733.33 ^Zn 1200.00 «3.00 1000.00 1533.33 same 60 1 1798 and 1796, ch. 43 .... ) S j; 5 a day By 1785, ch. 27; 1796, ch. 76; 1797, ch. 71, 50 and 79; to iz,t a 3.1 1 1 the Chief Judge of the third '> or Baltimore District by 2933.33 lis 1300.00 same 2266.66 2000.00 833.33 o 1797, ch. 69, 81400 .... (S 1799 By 1785, ch. 27 ; 1797, ch. 50, } 69 and 79 ; and 1798, ch. 86 > 3400.00 CS bj, >^ same same same same same 2 S g-3 ■? 1800 By 1797, ch. 50 and 69 ; 1793, ^ s^l ^ to ch. 86 ; 17.19, ch. 52 ; and ^ same 3-33 same «4.00 same same 1000.00 ■3 1805 1801, ch. 74, s. 18 ... . > .2-5 3 a day 800.00 3 ISO6 By 1793, ch. 86; 1301, ch. 55 ; j and 1805, ch. 16 and 86 . i same 1400.00 «1400 abol ished or .iirffre. 2200.00 00 to'^o u. The facts exhibited by this table suggest inany matters for reflection ; setae of which it may be well here to notice. There was nothing in the frame of the pro- vincial government which made it incompatible for one judicial officer to hold at the same time any other similar office, or indeed almost any other kind of office ; or 680 THE CHAXCELLOR'S CASE. Under a proud confidence, that his whole character and conduct, public and private, will bear the closest and severest investigation, which prohibited his taking fees or perquisites of any kind ; and it was in fact quite common for the same person to have a plurality of offices and to receive a variety of fees and perquisites as such. The last provincial governor was chancellor and also ex q^'cio chief judge of the Court of Appeals, (1713, c/i. 4, s.6; lT29,ch.3,) and conse- quently the aggregate amount of his salary as governor, chancellor, and judge must have been at least $500'C, besides fees and perquisites ; yet at that time there was not half the amount of population and wealth in Maryland, that there is at present, (1825.) The Declaration of Rights declares, that no person ought to hold, at the same time, more than one ofhce of profit; and that no. chancellor or judge ought to hold any otlier office civil or military, or receive fees or perquisites of any kind. Conse- quently the authority of the chancellor and judges of the republic is limited to a single judicial office, and then- official emolument is confined strictly to the salary allowed by law to that single office. It seems to have been deemed, by the first Gen- eral Assembly of the Republic, " a matter of the highest importance to keep the court of the last resort totally distinct from all inferior jurisdictions." ( Votes <§• Pro. Sen. 29lh March 1777.) But by the amendment of the constitution, of the year 1805, the principle which had thus rigidly prohibited the holding of a pluralitj' of offices was departed from or modified. The chief judges of the six judicial districts, it is directed, shall compose the court of appeals ; and thus, as under the provincial government, the same person holds two distinct judicial offices; that is, he is chief judge of a district of county courts, and also a judge of the court of appeals. By adverting to the salaries which had been assigned to each of these offices down to ISOl it will be seen, that the salary now allowed to them, as thus combined in the same person, is nearly the same as the aggi-egate amount which had been allowed to them when held separately, and by distinct persons. Thus demonstrating it to have been the intention of the General Assembly, in giving a salary of only $2200, to preserve a similar proportion between the compensation of the judges of ihe courts of original and appellate jurisdiction ; that is, estimating about /ou;7cc7i hundred dol- lars as a proper allowance for the discharge of the duties of the former, and only eight hundred dollars lor the performance of the latter. It is then remarkable, that at all times, and under every change of circumstances in JNIaryland, the compensa- tion allowed to the judges of the court of the last resort has been very small in com- paiison with that which has been paid to those of the courts of original jurisdiction. This, it is evident, has not been the result of prejudice or accident; and therefore, the causes of it deserve to be inquired into and considered. In England the House of Lords is the court of the last resort. Its members receive no compensation for the discharge of their judicial duties ; and those of the judges in office, or the ex-judges who sit there, as peers of the realm, receive no compensa- tion whatever for their services there. But the chancellor and judges of the courts of original jurisdiction of Westminster Hall have very great salaries; and besides, are allowed to receive a very large amount of fees and perquisites. ( Smol. Hist. Eng. ch. 16.) It is said, that in old times writs of error in England were rare, for that men when judgment was given against them by course of law were satisfied without prying with eagles eyes into matters of form, or the manner of proceeding, or of the ti-ial, or insufficiency of the pleadings, &.C., to the intent to find error to force the party to a new suit, and himself to a new charge and vexation. — (Higgin's Case, 6 Co. 46.) The court of the last resort of the State of New York, is, in some respects, appa- rently so strikingly analogous to that of England as to have been looked upon, by some, as a mere adoption of tlie frame and principle of the ultimate tribunal of that country. How that may have been is, however, unimportant as regards the matter THE CHANCELLOR'S CASE, 681 the chancellor deeras it wholly unnecessary to say one word respecting himself. When he accepted the office of chancellor of Maryland, he now under consideration. The New York court of last resort is composed of the Senate aided by and together with the chancellor or the judges. The senators are compen- sated for their attendance by an allowance of so much for each day's attendance ; and the chancellor and judges are paid as judges of the courts of original jurisdiction ; but receive nothing in addition for the discharge of their duties in this appellate court. This ultimate tribunal of New York, if not the very best, is admitted on all hands to be fully equal to any court of last resort in the Union. Its business has never been suffered to accumulate or fall unreasonably behind hand ; and the reports of its decisions are received every where as illustrations and guides of the highest respec- tability. It was organized in 1776 ; and, on being reviewed, by the convention, called together in 1821, for revising the constitution, it was continued and reestab- lished without a dissenting voice. (Debates New York Convention, 1821.) The senators bring into it a mass of sound common sense by which cases are met upon their merits ; the propensity to overmuch technicality is checked ; and there is besides, found among the senators a degree of legal science often superior to that of the bench, and always sufficient to keep down the mere esprit du corps of the regular judges. The senators come from, and at short intervals return to the people ; and hence it has been truly and emphatically called " the court of the people ;" and as such its proceedings attract much and general attention ; and have necessarily a widely extended publicity which does not always follow, and can rarely be given to the proceedings of a court attended by none but lawyers, and whose decisions are selected and reported for their use only. — {Debates N. York Conv. 517, 609, 611.) Altliough in cases of family disputes in chancery, to save the feelings of the par- ties and with their express consent, the matter may be privately heard ; {In the mat- ter of Lord Portsmouth, Coop. Rep. 106,) yet in all other cases the matters in con- troversy must be heard in open court; for, publicity injudicial proceedings is of the very greatest importance ; " it is one of the best securities for the honest exercise of a judge's duty, that he is to exercise that duty in public." {Wellesleij v. Beaufort, 2 Russell, 9.) Publicity is also one of the best shields which a skilful and impartial judge can have against the assaults of party, of prejudice, or of intrigue. It is to the enlightened and powerful public opinion to which the judges of Westminster Hall are constantly exposed, and by which they are always held responsible and pro- tected, that their great diligence as well as their luminous and impartial judgments are to be ascribed. — {Debates Virg. Con. of 1S29, page 734.) But whatever may be the composition or structure of a court of last resort, it is important, that it should have assigned to it no duties but such as are properly appel- late, as regards the substance of the case, or the points involving the merits which have been controverted and adjudicated upon by the court of original jurisdiction. According to a well regulated course of judicial proceeding the parties to a contro- versy should have the means, and be allowed an opportunity of bringing before the court of first resort all their allegations and proofs in any way pertinent to the sub- ject in litigation. And, when the case has been so prepared for final decision, the judgment should, as nearly as practicable, be pronounced upon the merits, or upon those points on which the parties themselves have relied as involving the merits. To allow the revising court to reverse the judgment of the tribunal of original jurisdiction, because of any mere technical objection ; would be, nine times in ten^ to put aside the real merits in dispute for the purpose of correcting a mere matter of form which had either been deemed unworthy of attention in the court below, or which might have been at once amended there had it been noticed in time ; or to 86 682 THE CHANCELLOR'S CASE. read in the statute book, and in the Declaration of Rights of the State, that a salary of twelve hundred and seventy-five pounds per annum was allow the revising court to reverse the original Judgment on any oiher ground of merit, than that ^vhich had been specially taken in the court below, would be, in effect, to allow tlie appellate court to assume original jurisdiction by bringing before it a controversy which in truth, never existed ; or a new point of controversy which, if it had been presented to the court below, might have been shewn to have had no just foundation whatever. The sending of a case back, for amendment and further proceedings thereon, almost always involves a virtual admission, that an appeal had been taken which ought never to have been allowed ; either because the objection should have been made and removed in the court below; or if not there made, should have been treated above as having no just foundation ; or because the error was of such a technical nature as not in any way materially to affect the merits. But the greatest evils of an ill defined power in the appellate court to remand a case in equity are those which must inevitably arise from having the judgment of that court sent, without nile or guide, on a rambling ex- cui-sion through the case in search of those loose conjectures, ambiguous inferences, or latent evidences in relation to some supposed merits, for the purpose of letting in which the case should be sent back for alteration, {Kempv.Pryoi^TVes. 245,) by which means a controversy, all the facts of which were from the outset fully known to all concerned, may be varied and vexatiously continued to no purpose ; or a false colouring may be given to it by a party who has thus ascertained at what point his proofs were weak or insufficient. It is universally admitted that the consent of parties cannot give to a court juris- diction of a case of which it has no cognizance ; and yet it seems to have become quite common of late to agree to the passing of a decree pro forma merely for the purpose of appealing, and thus in effect transferring the original jurisdiction to the court of appeals and sinking the court of first resort into a mere ministerial agent. It is obvious then, that proper appellate judicial duty must be much less compli- cated and laborious than that which is original ; because after all the circumstances of the controversy have been brought before the first court and the points in dispute have been there specially designated, discussed and decided upon, the case must have been considerably reduced in its compass, and the question to be determined in the ultimate tribunal must have been so fully developed that there can be then no very heavy obstacles to remove, nor any great difficulty to encounter in coming to a cor- rect conclusion. Considering these matters, in this point of view, it is perfectly clear, that tlie judges of the court of last resort with less, or certainly with a no greater requisite degree of skill, have nothing like the same amount of judicial duty to perform as the judges of the courts of original jurisdiction. It is evident, that a court of ultimate resor^constituted, like that of England or of New York, of a great number of members, the majority of whom may not be law- yers by profession, would find it utterly impracticable to deal with, or to endure any thing like the distracting complexity of original jurisdiction, or to exercise any thing more than a simple and proper appellate authority. But it has been found, that an appellate tribunal constitute'd even of a few members, each of great legal ability, may be crushed, or totally obstructed in its course either by allowing every suitor, at his own pleasure, to crowd into it with his appeal, or by casting into it complicated controversies to be there first dealt with as by a court of original juris- diction. — ( Tucker's Letter, 2 Mun. Rep. intra. 17 ; Debates Virg. Con. \S29, page 760.) It must have been owing to this comparative view of the nature and amount of the skill and labour which had been in fact, or could only with propriety be required of or assigned to the judges of the ultimate court, that the judicial salaries in Maiyland THE CHANCELLOR'S CASE. 683 secured to the chancellor during tlie continuance of his commission. The faith of the State was, as he was thus led to believe, publicly and have, in this respect, been always graduated ; estimating the labour of a law judo'e in each of the six judicial districts, into which the State was divided, as being for some time more than equal, and as being for some years past not far short of being equal to double the amount of that of a judge of the court of last resort. Delay, vacillation, or obscurity in the proceedings and adjudications of a court of ultimate resort, to which a suitor may, without restraint, appeal, cannot fail veiy considerably to retard the administration of justice ; to render it extremely expensive, and oppressive to the poor ; and very injuriously to disturb its course in every inferior branch of the judicial department. {Debates N. York Cqnv. 1821, p. 607.) It was with a view to prevent these evils, that the various statutes of amendment and jeofail have been made ; that the forms and ceremonies of judicial proceedings have been adjusted, so as not on the one hand altogether to disappoint the eagerness of a plaintiff for an expeditious ter- mination of his suit, while on the other, an honest defendant might be secured from oppression by allowing him a reasonable time to prepare his defence, and to have the merits of his case deliberately discussed in the court of first resort; and that so many limitations and checks have been imposed upon the range of the right of appeal. Considering these as the true causes of greater salaries having been always given to the judges of the courts of original jurisdiction ; they shew, that the right of appeal should be kept within its proper range ; that the court of last resort should be per- mitted to exercise no original jurisdiction whatever; and tliat any material departure from these principles, which have every where, and at all times, been regarded as fundamental, would sink the courts of original jurisdiction into the condition of mere preparatory tribunals, or ministerial agents of the coui't of appeals, thereby depriving the litigants of the important benefit of a first, full, and open discussion, with a succeed- ing careful and critical revision of tlieir controversy as contemplated by the constitution, and finally turn awry and subvert tlie whole judicial department of our government. But although this comparative view of the requisite amount of the skill and labour of the judges, of the original and appellate tribunals, may sufficiently account for the difference, which has always been made, in the salaries of the judges of tliose courts ; yet, considering the court of chancery as one of original jurisdiction, it will be neces- sary to advert to other circumstances to account for the difference between the salaries of the chancellor and of the judges of the common law courts of first resort ; and even between the salaries of the judges of whole disb-icts of such courts, and tliat of tlie chancellor. Our code of laws is, in many respects, very peculiar in its principles ; but, its great, and principal peculiarity arises from the judicial machinery by which it is administered. That part, called the common law, as contradistinguished from equity, is admin- istered by courts composed of a judge and a jur)-. It is presumed, that the judge knows tlie law ; but, that the jury do not; and, therefore, it is the province of the judge to expound and declare the law to the jury, wlio are called upon to say, by their unanimous verdict, whether, by applying the law, as thus declared, tlie plaintiff should obtain what he asks or not. But a jury, being composed of twelve men, not lawj-ers, gathered from the people for the occasion, the whole matter in controversy must be reduced to a single point, or so presented as to place it in their power to put their unanimous verdict into the form of a general affirmative or negative response. A learned and experienced judge might find no great difficulty in so framing his judgment as to grant relief, in every way, suited to the most complicated case, that could be presented to him ; but twelve men, unlearned in the law, would, in tlie same case, find it exceedingly perplexing, or altogether impracticable, unanimously, to G84 'fHE CHANCELLOR'S CASE. solemnly pledged to whoever should be appointed chancellor. May he now be permitted, respectfully, to ask — has thsit faith been kept ? aoree upon any adequate complex form of granting relief; and, therefore, a jury can- not, with propriety be called upon, in any case, even although it should involve a complicated title to property, for more than a general affirmative or negative verdict; or for a special verdict, finding the truth of the facts, leaving the conclusion of law to be pronounced by the judge. — (3 Jeff. Corr. Lett. 2.) Hence it is that all judicial proceedings, according to the course of the common law, have a perpetual tendency to rigid exactness and precision ; so as to be easily explained to, and applied by a jury ; or, at least, so as to enable the judge to pro- nounce a formal judgment, as the general conclusion of law from the facts as found by the jurj- ; either in the form of a general, or a special verdict. And, as it would be attended with great expense and inconvenience to keep constantly together a suf- ficient number of the people to compose juries ; and to have witnesses kept long in attendance in order to testify orally before them ; without all which the administration of justice, according to the course of the common law, could not proceed; the courts of common law have always been limited in their sittings to particular times or terms. On the other hand, that branch of our code, called equity, is administered by a court of chancery, without the assistance of a jury, upon the written allegations and proofs laid before it. And, therefore, although a court of chancer}', for the return of process and the more orderly conducting of its business, in other respects with convenience to its suitors, has regular tenns ; yet it is always open to meet and pro- vide for the peculiar exigencies of every case, " for conscience and equity is always ready to render to every one his due." (1 Rep. Cha. The Earl of Oxford's Case, 6.) The high court of chancery of Marj-land, may indeed, not only like that of Eng- land, be said to be always open in a sense, though not always equally accessible, because of the other necessary avocations of the chancellor, and because of its long vacations, (2 Newl. Chan. 400 ; 2 Ves. ^ Bea. 351 ;) but, to be in fact always open, and in truth always equally accessible, because of the chancellor's having no other official duties to perform, and because of there being no vacations other than those intervals between its regular periodical terms or sittings for the return of process and the hearing of cases. For, seeing the great importance of having the chancellor alwa}'s in place, the General Assembly, during several of those years, that the judicial salaries remained insecure, directed, that so much should be paid to the chancellor, " if he shall reside at the seat of government."'— (1782, c. 2S ; 17S3, c. 31 ; 17S4, c. 68.) The judgments of the courts of common law are always drawn up by their clerks according to precise forms ; and, therefore, it is a general rule, that where the case is of such a nature, or the relief sought is so complex as, that no adequate redress can be given by any of the fixed forms of common law judgments, the party may obtain relief in chancery, where the orders and decrees of the chancellor, although regulated by well settled principles, are always accommodated to the anomalous or peculiar nature of the cases of which his court takes cognizance. And because of the complex or peculiar frame of a great proportion of such orders and decrees they can only, according to the practice in Maryland, be drawn up by the chancellor himself Looking to the exact and reduced form into which a case must necessarily be pre- sented in order to obtain a concise decision, according to a settled form, from a tribu- nal composed of a judge and jury on the one hand ; and to the anomalous and com- ])lex frame of the cases, and of the orders and decrees thereupon in chancery, on the other, it has been very strongly, if not conclusively, argued, that the trial by jury itself, in controversies as to the right of property, must be altogether abandoned, or certainly could not exist in its purity and vigour, without the helping hand of a court ofchancery,— (Sow^/iera Review, Feb. 1829, art. 3.; The Federalist, No. S3.) THE CHANCELLOR'S CASE. 683 The chancellor now claims the payment of his salary, under the act of 1798, ch. 86, at the rate of twelve hundred and seventy-five Junius, in his letter of the 14th of November 1770 to Lord Mansfield, says, " Instead of those certain, positive rules, by which the judgment of a court of law should invariably be determined, you have fondly introduced your own unsettled notions of equity and substantial justice. Decisions given upon such principles do not alarm the public so much as they ought; because the consequence and tendency of each particular instance is not observed or regarded. In the meantime, the prac- tice gains ground ; the court of king's bench becomes a court of equitj' ; and the judge instead of consulting strictly the law of the land refers only to the wisdom of the court, and to the purity of his own conscience." Lord Redesdale speaking of the same judge says, " Lord Mansfield had on his mind prejudices derived from his familiarity with the Scotch law, where law and equity are administered in the same courts, and where the distinction between them which subsists with us is not known, and there are many things in his decisions which shew that his mind had received a tinge on that subject not quite consistent with tlie constitution of England and Ireland in the administration of justice. It is a most important part of that constitution, that the jurisdictions of the courts of law and equity should be kept perfectly distinct ; notliing contributes more to the due administration of justice. And though they act in a great degree by the same rules, yet they act in a different manner, and their modes of affording relief are different ; and any body who sees what passes in the courts of justice in Scotland, wiU not lament that this distinction prevails. But Lord Mansfield seems to have consid- ered, that it manifested liberality of sentiment to endeavour to give the courts of law the powers which are vested in courts of equity ; that it was the duty of a good judge ampliare jurisdidionem. This I think is rather a narrow \new of this subject ; it is looking at particular cases rather than at the general principles of administering justice, observing small inconveniences and overlooking great ones." — {Shannon v. Bradstreet, 1 Scko. S; Lefr. 66 ; Sugden's Letters, 4.) As has been observed in relation to tliis matter by our own great sage, " the only natural improvement of the common law, is through its homogeneous ally, the chan- cery, in which new principles are to be examined, concocted, and digested. But when, by repeated decisions and modifications, they are rendered pure and certain, they should be transferred by statute to the courts of common law and placed within the pale of juries." — (4 Jeff. Corr. let. 104.) And in relation to those alterations of our code, so frequently made by the most cnide and ill digested scraps of legislative enactment, he observes, that " the instability of our laws, is really an immense evil. I think it would be well to provide in our constitutions, that there shall always be a twelvemonth between the engrossing a bill and passing it ; that it should then be ofTered to its passage without changing a word; and that if circumstances should be thought to require a speedier passage, it should take two-thirds of botli houses, instead of a bare majoritj'." — {2 Jeff. Corr. let. 117.) In these points of view then, a court of chancery is not only a useful, but an indispensable part of our judicial system. And, when the proper judicial duties of a chancellor are thus compared with those of a judge of a court of common law ; and especially with those which are, alone, properly assignable to a court of the last resort, it cannot fail to strike every one, that those of a chancellor, independently of all his other irregular and incidental duties, must require a vast deal more skill and labour than those of a common law judge in any situation whatever ; and that the larger amount of salary which has, at all times, been allowed to the chancellor affords the most satisfactory proof, that this matter has been always so distinctly understood by the people of Maryland. 686 THE CHANCELLOR'S CASE. pounds per annum, for the past year, or so much as has become due and remains unpaid ; with legal interest on such portions as have been demanded and withheld. And he also claims the benefit of some such provision as the General Assembly may now think proper to make, for the regular quarterly payment of that amount hereafter, during the cojitmuance of his commission. " It is justice that establisheth a nation." The chancellor asks no more than justice. His case is with you. THEODORICK BLAND, Chancellor of the State of Maryland. Annapolis, 26th December, 1825. This Memorial w^as presented and read in the House of Dele- gates, on the third day after the commencement of the session, and referred to a committee ; w4io made a report thereupon. (6) After which, the matter having been considered, was called up, discussed, and finally passed upon by each House. Whence it may be fairly assumed, that the following resolutions, recognizing the chancellor's claims, may be considered as a deliberate and final judgment of the General Assembly of Maryland affirming, in sub- stance and in general terms, the leading and material principles set forth and asserted by the chancellor in his Memorial. Considered in this point of view, this is a case of much and lasting importance as regards the judiciary in general as well as in relation to the chancellor in particular. 11th February, 1826. By the General Assembly of Maryland, Resolved, That the salary of the Chancellor shall be three thousand four hundred dollars during the continuance of the commission of the present chancellor, and no longer ; and after the expiration of his commission, such salary shall be provided for the succeeding chan- cellor as the legislature shall then think proper to fix and establish. 2d March, 1826. By the General Assembly of Maryland, Resolved, That the treasurer of the Western Shore pay unto the order of Theod- orick Bland, the sum of three thousand four hundred dollars for his salary as chancellor for the year ending on the sixteenth day of February 1826 ; and the salary' of the present chancellor, as declared by a resolution passed at this session of the General Assembly, shall be paid to him quarterly by the treasurer of the Western Shore, during the continuance of his commission and no longer. (b) Jour. H. Del. 28th December, 1825, and 24th January, 1826. INDEX. ACCOUNT. On a proper bill to account, in a case where there are mutual dealinsfs, after a decree to account, both parties are actors ; and, as the balance is shown, there may be a decree against either. — Colegate D. Owings' case, 404; More- ton V. Harrison, 499. ACTS OF ASSEMBLY. Where a mode of proceeding is prescribed by an act of Assembly, it must be pur- sued so far as it goes ; and may, if prac- ticable, be followed out according to the course of the court to which the ap- plication is made : but if it cannot be so executed, such court has no jurisdic- tion; and if it cannot be so executed by any other court, then it must remain inoperative. — Hughes' case, 46. On a bill to obtain a legal title according to a bond of conveyance, the defendant was ordered to procure the passage of an act of Assembly to confirm the con- veyance. — Rowlings V. Carroll, 75. An act of Assembly cannot be disregarded or considered as having been virtually repealed because of long disuse. — Snow- den V. Snowden, 555. The causes and inconvenience of tempo- rary acts of Assembly. — Chancellor's case, 646. An act which gives a judicial salary, re- mains in force during the continuance of the commission of the then chancel- lor and judges, although the act itself be limited to a shorter duration. — lb. 663. Where a latter act, which is limited in its duration, virtually repeals a prior act, such prior act does not revive after the latter act is spent. — lb. 6G4. A constructive revival cannot operate on any part of an act which has been expressly altered. — Id. ib. AFFIDAVIT. It is enough that an affidavit to an answer is so positive, that, if false, the part>' may be prosecuted for perjury. — Coale V. Chase, 137. AGREEMENT. A agrees to pay B $6000 on a specified day, on B's executing an assignment to C, and delivering it to A. Held, that if A waives the right to hav(> the writing delivered to himself, or fails to insist upon it as a condition precedent, he thereby at once becomes f lie debtor of B.— Chase i;. Manhaidt. 339. D agreed to pay C for certain lands in choses in action, for the eventual suf- ficiency of which D was to be responsi- ble. Held, he was to warrant, that with due diligence by C, their net proceeds should produce the whole amount of the purchase money. — Dorsey y. Campbell, 357 ; Hoffman v. Johnson, 166. And, that D might, witliin a reasonable time, assign to C choses in action for that purpose ; but that D, by bringing suit, had waived the privilege of making any further assignments, 358. The mother of C. D. O. promised her hus- band, a short time before his death, that she would give all her property to their daughter C. D. 0.; in consequence of which he made his will, leaving C. D. O. a family Bible and a spinning-wheel as a token of his afl^ection, it being his desire and expectation, that her mother would provide for her, she having it fully in her power to do so. Held, that the mother was bound to give C. D. O. an estate of inheritance in her property, to take effect on her death. — Colegate D. Owings' case, 397, 402. Such a promise or agreement is not within the statute of frauds, 402. ALIMONY. Cruel and violent treatment a sufficient ground for awaiding to the wife alimony according to the circumstances of the husband.— Hewitt v. Hewitt, 101 ; Codd. v. Codd, ib. The payment as it falls due may be en- forced on petition by an order nisi and 2i fieri facias, 102. A sum ordered to be paid monthly by the husband to the wife pending the suit for alimony. — Sarah WrighVs case, 101. ANSWER. A defendant may on motion obtain fur- ther time to answer. — Carroll v. Parran, 125. The allegations in the body of the answer should be positive. — Coale v. Chase, 137. The answer of an administrator must al- ways be taken with a view to the reasons for'his belief.— Ton? v. Oliver, 199. If an executor or administrator answers to the extent of his belief, in relation to ficts evidently not within his own know- ledge, it may be a sufficient ilenial ta have an injunction dissolved. — Coale v. Chase, 137. It is enough that an affidavit to an answer is so positive, that if fidse the partj' may 688 INDEX. be prosecuted for perjury, 137 ; Gibson V. Tilton, 355. The answer of one defendant cannot be read in evidence for or against an- other; except in some particular cases. McKim V. Thompson, 160; Jones v. Magill, 198 ; Lingan v. Henderson, 267 ; Chase v. Manhardt, 336. A wife cannot be a witness for or against her husband, therefore her answer can in no case affect him. — Lingan v. Hen- derson, 269. It is only under veiy special circumstances, that a defendant can be allowed to make any alteration in his answer. — McKim V. Thompson, 162. An answer sworn to before a justice of the peace, in another State, or in the Dis- trict of Columbia, who is certified to be a justice of the peace at the time, is re- ceived as sufficient. — ChapUne v.Beaity, 197 ; Lingan v. Henderson, 240 ; Gibson V. Tilton, 352. One defendant cannot directly compel his co-defendant to answer, but he may, by a rule further proceedings, urge foi-ward the plaintiff to extract an answer from him. — Jones v. Magill, 198. If a defendant pleads and answers to the same matter, nis answer overrules liis plea. — Hannah K. Chase's case, 217. If a defendant, in argument, relies upon the answer of his co-defendant he there- by makes it evidence against himself. — Chase v. Manhardt, 336. When the case is set down for hearing on the bill and answer alone, all the facts set forth in the answer must be taken to be true.— Estep v. Watkins, 48S. The mode of taking the answer of an adult, or an infant defendant in England and in this State. — Snowden v. Snow- den, 550. Exceptions to an answer being sustained, the defendant was ordered to answer by a certain day, or the bill to be taken pro confesso. — Mayer v. Tyson, 560. An insufficient answer being as no an- swer, the bill may be taken pro confesso as against the defendant, and the j)laintiff be allowed to proceed with his case, 560. The answer of a defendant may, by con- sent, be received without oath. — Bil- lingslea v. Gilbert, 567. A defendant, who, in his answer, insists upon the statute of frauds, must never- theless answer fiilly. — Ogden v. Ogden, 2S8. If a defendant says nothing about the sta- tute of frauds, he must be taken to have renounced the benefit of it, 28S. APPEAL. It is a constitutional right of the citizen to have his case at law, or in equity reviewed b'y a court of error. — Ring- gold's case, 7 — 12. A writ of error was, at common law, de- mandable of right in all civil cases ; and the proceedings in the court below were stayed by a writ of supersedeas, 7. The range of a writ of error limited to certain errors in fact, or to errors in law apparent upon the record : and could be brought only upon a final judgment, not rendered by default, or by consent, or where the matter rested in the mere discretion of the court, 8. Regulations to prevent the abuse of the right of appeal at common law, 9. The right of appeal in equity is limited to final decrees or to orders involving the merits ; it does not extend to such orders as are merely interlocutory or to decrees by consent or default, 12 ; Slye v. Llewellen, IS ; McKim v. Thomp- son, 270. On an appeal from chancery no new or different point can be made in the court of appeals. — Ringgold's case, 14, 21. The staying of proceedings in equity on an appeal is a matter regulated in a great degree by, and is very much within the discretion of the court of chancery, 15. No appeal allowed in the inferior federal courts but from a final decree, 16. The right of appeal expressly given, and confined to decretal orders, that is, to such orders only from which an appeal formerly lay, 17 ; McKim v. Thomp- son, 270. The penalty of the appeal bond to be in double the sum decreed to be paid, or the value of the perishable subject in con- troversy. How adjusted when the value is uncertain, 23 ; McKim v. Thomp- son, 272. The appeal bond approved by, not ac- knowledged before the chancellor; but if it does not cover the amount and con- form to the decree or order, it is no su- persedeas. — Ringgold's case, 24. An appeal bond may be approved cither on the chancellor's own knowledge of the sufficiency of the obligors, or on the certificate to that effect of a judge, a justice of the peace, or a solicitor, 25. A defendant against whom the bill had been taken pro confesso not allowed to come in for the purpose of taking an appeal. — Hoye v. Penn, 35. Where no apjieal would lie the legislature refused to pass a special law authorizing an appeal. — McKim v. Thomp.son, 169. It was said by the Senate to have been admitted on all hands, that there could be no appeal from an interlocutory order directing a defendant to bring money into court, 169. Held by the chancellor, that an appeal would not lie from an interlocutory order to bring money into court, 172. The execution of a decree will not be 1 INDEX. 689 stayed if no bond be given. — Bryson v. Petty, 183. No appeal lies from a judgment in the land office in a caveat case. — Cunning- ham V. Browning, 320. The manner and course of appeal from the judge of the land office of tlie East- ern Shore to the chancellor. — Willing V. Wright, 321 ; Hopper v. Cokston, 322. There is no saving in the act limiting ap- peals in favour of persons non compos mentis. — Colegate D. Owinijs' case, 408. The cases in which an appeal was allow- ed, and the mode of prosecuting such appeals from the colonial courts to the king in council. — The Chancellor's case, 60S, note. The difference between the powers and jurisdiction of original and appellate courts considered. ATTACHMENT. A foreign attachment, or some equivalent process, has been introduced into all codes. — Chase v. Manhardt, 342. The only object of an attachment is to enable a creditor to obtain satisfaction from property here belonging to his absent or absconding debtor, 344. The garnishee may make defence for him- self alone or for the defendant ; but if he does eitlfcr, or if he makes no defence and fails to bring the money into court he must pay interest, 344. The plaintiff may have only a part of the attjiched debt condemned, 346. ATTORNEY. Money may upon the production of proper vouchers be paid out of court to the attorney in fact of the part)'. — Hoye v. Penn, 40. AUDITOR. The nature of an auditor's duties ; he is a ministerial officer who cannot constitu- tionally be clothed with any of the ju- dicial power of the chancellor. — Dorsey V. Hammond, 464, 469, 471. The legal fees of the auditor are a pari of the costs and may be recovered as such, 467. Where some of the proofs have been ob- jected to, such objections must be dis- posed of before the case can be sent by the court to the auditor with diiections to state an account from the pleadings and proofs in the case. — Strike's case, 96. The form of a commission to auditors lo state an account and report. — Clapham V. Thompson, 124 ; Dorsey v. Bulany, 4G5. Three persons appointed. afTer the act of 1785, ch. 72, as special auditors. — Bry- son V. Betty, 1S2. 87 AWARD? A case referred by consent to arbitration, an award returned, and a decree passed thereupon. — McKim v. Thompson, 175. By referring a case to arbitration the court divests itself of its judicial power. — Dorsey v. Hammond, 469. There is no legislative enactment relative to the reference of suits depending in chancery to aibitration. — Phillips v. Shipley, 516. The court may with the consent of par- ties refer the case to arbitration and en- force the award, 517. An award may be set aside on good cause shown, 517. A party cannot revoke a reference with- out tlie sanction of the court, 517. BILL. The nature of a supplemental bill. — Burcli V. Scott, 121. A plaintiii'can only recover on tlie strength of his own title as shewn by his bill, which as to that can be sustained by no exb'aneous matter; but to explain an ambiguity, resort may be had to the in- terrogating part or to the prayers — Lingan v. Henderson, 249 — 255. The special praj'er for relief must be such as tne case set out in bill will warrant and the law authorize, if legal and not covered by tlie bill it must be amend- ed, 250. Under the general prayer, any relief war- ranted by the case as set forth in the bill may be granted, though not orally asked for, 251. The plaintiff may by his bill state his ca-'e in the alternative, so that each be a case of equity juristliction ; and so that he thereby evades no rule for the protection of suitors, 252. Although the bill be informal, yet, if not objected to, it is enough if it be shewn at the hearing to be substantially suffi- cient, 271. Where the plaintiff by his bill offers to perform his part of the contract, and the answer admits or sets out an agree- ment which is proved, there may be a decree against each without a cros.^ bill. — Dorsey v. Canijjbell, 359 ; Wat- hins v. Wulldn-s, 359 ; Long v. Gorsudi, 361 ; Etchison v. Dorsey, 536. The case, as stated in the bill, must ap- pear- at the hearing to be of such a character as belongs to the jurisdiction of a court of chancery. — Estep v. Wat- kins, 489 ; Iglehart v. Armiger, 528. Although on a bill for specific perform- ance there may be a decree as well in favour of the defendant as of the plain- tiff, yet if the parties sutiinr it to be passed in favour of the plaintiff alone, the defendant can only be relieved bv a crocs bill. — Etcliicon i-. Dcisey, 5S6. 690 INDEX. •BOND. The assignee of a bond takes it subject to all equity with or without notice. — Estep V. AVatkins, 490. An assignment of a bond, given to secure the payment of the purchase money, does not carry with it the vendor's equi- table lien. — iglehart v. Armiger, 523. CAVEAT. The mode of proceeding by caveat to pre- vent the emanation of a patent for land in Maryland similar to that of Eng- land. — Cunningham i'. Browning, 301, 322. On hearing a caveat the chancellor sits as a court of- common law, 304. A caveat is a petition or suggestion that the great seal should not be put to a patent grant as prayed, 304. Proceedings in the land office other than those under a caveat, 314. The form and course of proceeding on a caveat before the chancellor of Mary- land, 313, 319,320. The grounds upon which a caveat maybe entered, 316 ; Ridgely v. Johnson, 316 ; Aisquilh v. GocZnian, 317 ; Hammond v. Godman, 318. Instances of caveat other than that to pre- vent the emanation of a patent for land. — Cunningham v. Browning, 324. If the cause of caveat be doubtful it is the regular course to overrule it, and let a patent issue so as to give the parties an opportunity of having the matter de- termined by a formal proceeding at law or in equity. — Ridgely v. Johnson, 316. COXSTITUTION. An affidavit made in another State to an answer to a bill in this court is not a judicial proceeding of another State within ihe meaning of the constitution of the United States. — Gibson v. Til- ton, 352. The facility with which ths constitution may be amended gives to tlie General Assembly an almost unlimited power. — Chancellor's case, 605. Under the colonial constitution the judi- cial department badly organized, 607. The history of judicial independency in England and in this country, 607, 615. A consideration of the article of the De- claration of Rights relative to judicial independency, 618. The mode of appointing and constituting a chancellor, 623. The organization of the judicial depart- ment after the formation of the consti- tution, 628. Tlie causes which prevented the legisla- ture from securing to the chancellor and judges their salaries immediately after the constitution went into opera- tion, 645. It is in the power of the House of Dele- gates alone to prevent the payment of any debt due from the State, 667. CONVERSION. Real or personal property taken and sold under a Jwri facias is thereby con- verted into money ; and the realty is thus converted into personalty. — Jones V. Jones, 430. Real estate may be converted into per- sonalty at law by a sale under the act to direct descents, 453, 460. In equity the mode in which the judicial proceeding effects the conversion is dif- ferent, 454. Although the sale of a real estate to effect a division converts it into personalty, yet that should not prejudice the rights of any one, much less those of a feme covert, 455 ; Wells v. Roloson, 456. Can real estate be constitutionally con- verted into personalty to the prejudice of any one without his consent ? 457. COSTS. Postage, notarial seals, &c. cannot be tax- ed as costs. — McMechen v. Story, 186. On the bill's being dismissed by the plain- tiff, the costs on being taxed by the register may be ordered to be paid, or cause shewn. — Diffenderffer v. Hillen, 191. On a bill for dower, if the heir throws no difficulty in the way, the widow has no costs. — ^H. K. Chase's case, 231. There may be a revivor of a decree for costs. — C. D. Owings' case, 409. In partition the costs are borne equally or in proportion to the shares of each. — Hughes' case, 50 ; Corse v. Polk, 234. The auditor's fees are a part of the costs, and may be recovered as such. — Dorsey V. Hammond, 467. The origin, nature, and extent of the rule which may be laid on a plaintiff to give security lor costs. — Mayer v. Tyson, 561. COURT OF CHANCERY. This court is in its institution and forms of procedure absolutely civil ; yet if re- lief be asked on the ground of fraud against an instrument, it may be shown to be a forgery. — Fornshill v. Murray, 484. The court of chancery of Maryland de- rived from and similar to that of Eng- land. — Cunninghams. Browning, 301; Chancellor's case, 648. This is not a term court in the sense of the common law, although it has its regular terms and sittings. — Burch v. Scott, 126; Chancellor's case, 678. The difference between the duties of courts of common law and courts of equity. — Chancellor's case, ib. INDEX. 691 The peculiar and complex nature of the duties of a chancellor, 678. This court cannot order money in the hands of a sheriff or officer ol' another court to be brought into this court. — Jones V. Jones, 401. CREDITOR'S SUIT. Under a bill against the heirs of a mort- gagor, or for the sale of a deccjised's real estate to effect a division, the cre- ditors of the ancestor may come in against such realtj' on the ground of the insufficiency of the personalty. — Lati- mer V. Hanson, 52 ; O'Brien v. Bennet, 86; Fenwick v. Laughlin, 475; Spur- rier V. Spurrier, 475. Where a decree for a sale expressly or tacitly affirms the validity of the plain- tiff's claim, the allowance of interest upon it is a subject of further direc- tions. — Strike's case, 70. It is most usual in the decree for a sale itself to directthetrustee to give notice to creditors to bring in their claims, every thing in relation to which is the subject of further directions, 71. It is not indispensably necessary that the bill should state, that the plaintiff' sues as well for himself as others, it is sufficient that such appears to be the object of the suit, 84. A creditor may be let in by petition either before or after the decree, but the most usual way is for creditors to come in by filing the vouchers of their claims, 85. If a creditor comes in after a distribution has been awarded by the auditor, he must pay the costs of the necessary reaudit ; but he can't be let in after a final account has been ratified, 86; Williamson v. Wilson, 441 ; Dorsey v. Hammond, 46S. After the claim of a creditor has been contested upon hearing, the heir cannot plead or rely on the statute of limita- tions in bar of it. — McMechen v. Chase, 85. The creditors may be called in before a decree so as to ascertain what amount must be raised by a sale. — Carrie v. Clarke, 85. Where an executor had paid away all the personalty and had nothing to answer pending suits against him, he was per- mitted to have the creditors called in to partake of a surplus of a mortgaged estate in a suit instituted by him and others as representatives of the de- ceased. — O'Brian v. Bcnnct, S6. Claims in a creditor's suit may be paid if authenticated in tlic same manner as re- quired in the orphans court. — Strike's case, 88 ; Dorsey i\ Hammond, 470. Creditors' suits founded on insolvency are governed by the same rules as those against the representatives of a deceased debtor — the schedule evidence ; but if any descrepancy, then full proof may be required.— Strike's case, SO. If the statute of limitations be not in some form specially relied on against a claim it cannot be taken advantage of, 90, The statute of limitations in bar of a claim brought in under the decree, may be relied on by any one of the original parties or by a co-creditor, 93. Where it appears by the voucher, that the deceased was surety with others, the creditor must also shew that the princi- pal and co-security are insolvent. — Edinondson v. Frazier, 92 ; Dorsey v. Hammond, 472. What may be deemed sufficient evidence of the insolvency of the principal or co-security. — Spurrier v. Sjntrrier, 477. The mere fiUng of the schedule of an in- solvent cannot be treated as a coming in of all the creditors therein named. — Strike's case, 96. Where a testator devises a portion of his real and personal estate subject to the payment of a particular debt, which the devisee taking under the will, fails to pay, the executof of the devisor may compel the devisee to pay in order to save tlie personalty of the devisor. — Pue V. Dorsey, 139. If, in such case, the devisee is dead leav- ing an infant heir, and his personal estate has been exhausted, the court will by decree appoint a trustee to make sale of the realty so charged, 138. A creditor having an equitable lien can- not by the usual notice be compelled to come in under the decree, but if he does come in then the purchaser will take clear of his claim. — Millar v. Baker, 148. The decree for a sale being founded on the fact of the insufficiency of the per- sonal estate establishes that point, so that the administrator's accounts cannot be impeached for the purpose of turn^ ing a creditor over against the person- alh\ — Mackubin v. Brown, 414, 415. If the creditors were infants they may be let in on applying soon after Wiey attain fiill age, even although notice has been given to creditors and a final distribu- tion has been made, 415. A suit brought by one partner against the other to prevent a misapplication of the Cartiiership effects, alleging the firm to e insolvent ; on that allegation being ad- mitted or proved, the suit must thence- forth be treated as a creditors" suit. — Williamson v. Wilson, 430. A suit by a creditor against trustees to whom the debtor had conveyed his pro- perty for the benefit of his creditors, treated as a creditors' suit. — Bamaby v. Hollinssworth , 431 . Creditors coming in may be ordered to 692 INDEX. answer interrogatories on oath. — Wil- liamson V. Wilson, 433. A ci'editor coming in under the decree takes the position of a plaintifti 434. In a creditor's suit, testimony in support of a claim must be taken in such a manner as to prevent a cross examina- tion, and insure a correct report of tlie proof to the court, 434. Before a distribution can be made the creditors must be noticed and called in, 440. After which notification, unless some dif- ficulty occurs requiring previous direc- tions, the auditor states a fust account as of course informing the court of the objections, if any, to each claim as they appear upon the face of the proceed- ings, 440 ; Dorsey v. Hammond, 470. The decree for a sale so far as it assumes the validity of the originally suing cre- ditor's claim is conclusive. — Stiike's case, 68 ; Williamson v. Wilson, 441. Creditors may be allowed time to take testimony in support of their claims ; but if it "be not taken within a specified or a reasonable time, a final audit may be directed excluding all claims not then sufiiciently authenticated, 441. Mortgagees and judgment creditors may be let in, and must be allowed their priorities. — Jones v. Jones, 4-52. The surplus of the sale of the realty in a creditor's suit considered as a part of the real assets which must be returned to the heirs, 452. No part of the personal estate of a de- ceased debtor can be applied in payment of his debts without raaldng his execu- tor or administrator a party to the suit, 460. All the costs and expenses are f^rst de- ducted from the proceeds of sale, and then the balance is distributed, by which means each creditor is made to contri- bute to the expense of the suit. — Dor- sey V. Hammond, 463. Each creditor is entitled to a proportion of the interest accruing on the purchase money, according to the sum stated by the auditor to be then due him. — Low V. Conner, 468. The proceeds of the sale of the real assets are to be distributed in the same order as the personal assets. — Dorsey v. Ham- mond, 470. A judgment against the executor or ad- ministi-ator is no evidence against the heir, 470. ^-^ If full proof of a claim be required, it must be established as an issue joined before ajury, 471. Where the proceeds of sale are more than sufficient to satisfy all, tiie auditor's re- port, as to the undisputed claims, may be at once affirmed before the commis- sions and costs have been allowed, or the suspended claims have been dis- posed of. — Spurrier v. Spurrier, 476. The chancellor cannot direct the payment or discount of any claim before the sale has been ratified, 475. CHOP. On a bill for specific performance, the de- fendant being unable to make a valid title the plaintitf was directed to deliver possession, reserving to him the liberty to finish his crop of all kinds and to re- move his crop and cattle. — Rawlings v. Carroll, 76. Possession will not be delivered under the decree itself to a part}', or to a purchas- er under it, where it would be attended with the loss of the then growing crop. Dorsey v. Campbell, 365 ; Chapline v. Chapiine, 364 ; Wright v. Wright, 365. Under a decree for a sale in a creditors suit, the then growing crop should not be sold. — Taylor v. Colegate, 3G5. DEBTOR & CREDITOR. Where two or more sue as joint creditors, the proportion due to each may be ad- justed alter the sale has been made and the proceeds brought in. — Hoye v. Penn, 34. The surplus of the proceeds of a sale may be awarded to the representatives of the debtor in proportion to their respective interests, 38. Where the property of a debtor has been sold under a decree for an amount equal to the \vhole debt, the debtor is dis- charged, 43. Where there are two debtors, and the pro- perty of each has been sold for an amount equal to the proportion due from each, leaving a surplus to each, as to such surplus they are to be regarded as creditors against the fund ; and no subsequent depreciation or loss of the fund taken from one can be made up out of the surplus of the other, 43. A creditor cannot be permitted to split up his claim and bring a separate suit for each part ; or after a decree to add in any way to its amount. — Strike's case, 95. A debt will not be allowed to carry inter- est during the time the debtor has been restrained from paying. — Chase v. Man- hardt, 343. A debtor on being sued may, in all cases, have leave to bring the debt into court so as to stop interest and costs, 343. DECREE. Where two or more are equally and jointly liable, the property of each may be directed to be sold in the first instance, so as to place the burthen upon each equally or in due proportion. — Hoye v. Penn, 33, 34. A decree which declares certain convey- INDEX. 693 ances to be null and void as against the plaintiJf, and directs the property to be sold and the proceeds brought in de- claring, " that all equities as to the dis- tribution of the proceeds of sale are reserved by the court for hearing," on their being brought in ; necessarily es- tablishes the plaintiff's claim. — StAke's case, 68. During the term decrees or orders may be altered or rescinded on motion or peti- tion, but after only by bill. — Buich v. Scott, 120. A decree affecting the rights of one not a party to it is, as to him, fraudulent, but it can only be corrected by an original bill, 120. A decretal order, what and how drawn up according to the English practice, 121. A decree considered as enrolled when signed and filed, 121. Dunng the term an interlocutory decree may be set aside on appearance without answer, under the general powers of the court. — Hepburn v. Mollison, 127. A decree by default for more than is due may, after the term, if the plaintiff has lost no testimony, be set aside to let in a defence upon the merits. — Burch v. Scott, 129. To make a decree a good bar in a subse- quent suit it must be shewn, that the matter of the bill was res judicata. — H. K. Chase's case, 220. The form of an interlocutory decree for assigning dower in a house, 234. Where several defendants are jointly liable there must be a decree against all or none, and where several are bound to contribute there may be a decree over to enforce the contribution. — Lingan v. Henderson, 275; Hodges v. MoUikin, 507. In its decree the court must be consistent with itself, it cannot say that there is, and also that there is not any cause of suit. — Lingan v. Henderson, 275. But without contradiction the court may, to meet the nature of the case, pass a separate, a reciprocal, a direct, or an inverted decree, 276. Where an annual sum is charged upon land, or a sum is stipulated to be paid periodically, the decree may order the payment of what is then due and be allowed to stand as a security' for what may thereafter become due, which may be enforced in a summarj- way. — Re- becca Owings' case, 297. A decree may grant relief upon terms, or so as to dispose of the whole case. — Coletjate D. Owings' case, 40.3. On a bill to account there may be a decree against the plaintiff or against the de- fendant, according as the balance may be shewn, 404. A decree may be so framed as to meet the case disclosed ; as a decree against an agent in the second degree ; a decree in favour of a surety against his principal ; a decree between two or more defend- ants ; a cross decree to enforce specific Eerformance ; a decree to redeem may e made to operate as a decree to fore- close ; or a decree against both parties in favour of the State, 404. A decree must stand for what it purports to be until revised or reversed. — Estep V. Watkins, 489. A decree against several will only be opened in favour of him who asks it. — Hodges j;. MulliMn, 507. DELIVERY OF POSSESSION. On a sale under a decree the delivery of possession to the purchaser by injunc- tion well settled, and of right, where the possessor does not claim to hold by title paramount to the parties. — Dorsey V. Campbell, 363 ; McKomb v. Kankey, 363. But immediate possession will not be or- dered when it would be attended with a loss of the then growing crop. — Chap- liner. Chapline, 364; Wright v. Wright, 365 ; Taylor v. Colegate, 365. Where possession is ordered to be deliv- ered to a purchaser under a fieri facias, there can be no saving as to the then growing crop. — Dorsey v. Campbell, 365. The mode of ordering possession to be delivered to a purchaser under a fieri facias, 363. DEPRECIATION. The depreciation of property soon after the j-ear 1819, its causes and conse- quences. — Hoye V. Penn, 41. The depreciation of paper money during the revolution. — The Chancellor's case, 633. DEVISE. A devise of land to W. O. his heirs and assigns upon condition, that he, or the person to whom the estate may event- ually pass, maintain or pay £60 a year for the maintenance of Rebecca, is a condition which runs with, and gives her a particular interest in the land, not as a rent or an annuit}% but for the pay- ment of which he who takes and enjoys the land is personally liable. — Rebecca Owings' case, 296. A bequest of the debt carries with it the mortgage and all other securities of the debt. — Jglehart r. Armigcr, 524. A devise to a religious society, \vithout the leave of the legislature, is void. — Murphy v. Dallam, 529. DIRECTIONS. Further directions are those orders given 694 INDEX. for the purpose of following out the equity established in substance by the decree. — Strike's case, 69. DISCOUNT. The nature and origin of discount in bar; discount, recouper, and set off, in prin- ciple the same. — Strike's case, 79. A claim for rents and profits may be set off against that for improvements made by a bona fide possessor, 79. But a wrong doer cannot place himself in a situation to obtain a discount, 80. DOWER. Dower assigned by commissioners ap- pointed to make partition under the act to direct descents. — Hughes' case, 47. A widow who elects to take the estate de- vised to her in lieu of dower, is to be deemed a purchaser for a fair consider- ation to the value of her dower, and must have her claim sustained as a lien to that extent in preference to credit- ors. — Margaret Hall's case, 20.3. If the husband had before marriage made a lease for years reserving rent,"the wife might have been endowed of the rever- sion and of the rent from the death of the husband ; but if no rent has been reserved, then of the reversion only with a cesset executio during the term. — H. K. Chase's case, 227. If husband and wife join in making a mortgage, her dower can be affected only to the extent of the mortgage, and she may call upon the personal representative of the husband to dis- charge the mortgage, 227. Jf the wife join in levying a fine, or in acknowledging a deed under the act of Assembly to make a lease or mortgage, her dower can be affected only so far as may be necessary to give it validity ac- cording to the express extent of the fine or deed, 22S— 231. In equity the widow may have an account of the rents and profits of her dower from the death of her husband, and costs if her claim be opposed, 231. The widow can only recover according to the actual value, and will be allowed interest on the rents and profits as they accrue, 231. Upon a decree for dower there can be no sequestration of the two-thirds to sa- tisfy the claim for rents and profits, although they may be taken like any other property under a. fieri facias, 232. Where the property is incapable of divi- sion, dower may be given in the form of a rent distrainable of common right, 233. The form of an interlocutor}' decree for assigning dower in a single house, 234. On a sale to effect a division, a portion of the proceeds may be awarded to the widow in lieu of dower. — Spurrier v. Spurrier, 477. ELECTION. Where a testator devises a part of his es- tate to one who has a claim upon it independently of him, the devisee may be put to his election, and shall not have both.— Hall v. Hall, 134. But the intention must be distinctly ex- pressed or strongly manifested, or it must appear that the claim is irreconcil- able with the devise, or that to sustain the claim would throw the testator's es- tate into a different channel, 135. EQUITY. That which might have been ordered, when fairly done maybe confirmed : as where land devised to be sold was sold by the executor under an apprehension that he had been authorized to do so, the sale was confirmed. — Ex parte Mar- garet Black, 142. "VVhere by agreement a judgment is enter- ed, to allow for payments, or upon a verdict obtained by surprise or mistake, equity will relieve. — Chase v. Manhardl, 348. EVIDENCE. Depositions taken before the revolution under the statute of 5 Geo. 2, c. 7, re- ceived and read. — Rawlings v. Stewart, 22. WTiere a deposition or affidaAdt is on aflir- mation, and the peVson taking it does not certify, that the affirmant is a quaker, 8tc. the deposition or affidavit can be of no avail. — Ringgold v. Jones, 90. There is no publication of depositions, but all objections are open and may be taken at the hearing. — Strike's case, 96. The commissioners may summon wit- nesses to testify, and on the commis- sioners certifying that the witness failed or refused to attend, an attachment against him may be ordered. — Bryson v. Petty, 182. A solicitor cannot be permitted to divulge the secrets of his client without his con- sent, and if he be not a party to consent the solicitor must remain silent. — H. K. Chase's case, 222 ; Hodges v. MuUikin, 509. On bill or petition on oath in the same case, a commission may be granted to take the testimony of an aged or infirm witness de bene esse. — Lingan v. Hen- derson, 238. An objection before the commissioners that the evidence is not such as is re- quired by the statute of frauds, if that statute be not relied on as a defence, cannot be allowed, 24S. A receipt is not in all cases conclusive. but that usually given for the purchase money and endorsed on a deed for land is evidence of the lowest order, 249. Parol proof which eoes to sustain and supply deficiences in a written insti'u- ment may be received, 2-19. The answer of one defendant cannot be evidence for another, except in some particular cases, 267. A co-plaintiff or a co-defendant may be examined as a witness if he has no in- terest in the matter, or none in that part of it as to which separate relief may be given, 26S. If a co-defendant has been received by the plaintiff as a witness to the whole, the bill as to him must be dismissed, 268. If a defendant in argument relies upon the answer of his co-defendant as evidence in his favour, he thereby makes it evi- dence against himself. — Chase v. Man- hardt, 336. Certified copies from the land office are deemed legal e^ddence. — Cunningham V. Browning, 308. A letter cannot be used as evidence of a contract in connexion with a part only of the verbal testimony. — OgdeniJ. Og- den, 287. The mode of taking testimony in a credi- tors suit so as to insure a correct report of it to the court. — Williamson v. Wil- son, 434. Evidence may be taken before a justice of the peace under a special order. — McKim V. Thompson, 154 ; Clapham v. Thompson, 124. The mode of taking testimony here before a justice of the peace in relation to any interlocutory matter unknown to the English practice. — Hodges v. MuOikin, 507. A defendant as to whom a decree cannot be opened is a competent witness for a co-defendant who applies for leave to file a bill of review, 507. A trustee under the decree whose liability to refund what has been paid him as commissioner will not be increased by opening the decree, is a competent wit- ness on an application for leave to file a bill of review, 508. EXECUTIOIV. When property equal in value to the debt has been taken under a fieri facias, the debtor is discharged, and the creditor must look to the sheriff. — Hoye v. Penn, 43. To enforce the execution of a decree for the payment of money, and also for in- demnification, the plaintiff may have a ca. sa. and an attachment at the same time. — Bnjson v. Pcltij, 183. A room in a tavern may be used as a gaol by the sheriff to confine a person under a ca. sa., 1S3. INDEX. 695 Upon a decree for dower, there can be no sequestration of the two-thirds to satisfy the claim for rents and profits of the dower. — H. K. Chase's case, 372. A decree for an annual sum may be en- forced in a summary way, or by putting a receiver upon the estate charged. — Rebecca Owings' case, 297. The manner in which possession may be ordered to be delivered to a purchaser under a fieri facias. — Dorsey t>. Ceimp- bell, 364. Real estate not liable by the common law to be taken in execution and sold for debt, except at the suit of the State. Jones v. Jones, 445 ; Birchfield v. Brovm, 446. By elegit the half, and aftewards by statute the whole of the real estate of the debtor made liable. — Jones v. Jones, 447. The nature and extent of a judicial lien upon real estate, 447. Although a lien fastens upon real estate from the date of the judgment, no exe- cution can be issued if the case has abated by the death of either party, un- til it has been revived, 448. There is no lien upon personal estate as against third persons, until \he fieri facias has been delivered to the sheriff, 448. By the seizure the sheriff acquires a spe- cial property in the goods taken, 448. A fieri facias bearing teste before the death of the defendant evicts the real and personal estate from the hands of the heir or devisee, and from the exe- cutor or administrator, 449. Real or personal property taken and sold under a fieri facias is thereby convert- ed into money, the realty being thus converted into personalty, 450. A share of the proceeds of the sale of realty, a chose in action, cannot be taken in execution, yet it maybe under circumstances applied by the court to the satisfaction of creditors, 459. Money cannot be taken in execution, nor can money in tlie hands of a sheriff made under an execution from another court be ordered to be brought into this court, 460. Public stock, choses in action, &c. cannot be taken in execution ; but choses in action may be attached at law. — Wat- kins V. Dorset, 533. If a party cannot obtain satisfaction by any execution at law, he may proceed by bill in equit^% 534. A judicial attachment cannot be awarded by the court of chancery, 534. To 'constitute a valid title to land pur- chased at a sheriff's sale, it is necessary - that there should be a return made to the fieri facias, that the return should specify the land sold, and that the return should be recorded.— Duvall v. Waters, 589. 696 INDEX. What is deemed a sufficiently certain de- scription in the return of a fieri facias of the land sold under it, 591. EXECUTORS & ADMINISTRATORS. An executor or administrator upon letters granted in the Distiict of Columbia may sue here, but not if granted in another State or a foreign countiy. — Burch V. Scott, 113, note. « Land devised to be sold was sold by the executor under an apprehension, that he was authorized to sell, the sale was affirmed. — Ex parte Margaret Black, 142. No part of the personal estate of a de- ceased debtor can be applied in payment of his debts without making his execu- tor or administrator a party to the suit. — Jones «;. Jones, 460. An absolute judgment against an execu- tor or administrator is conclusive evi- dence against him of a sufficiency of assets. — Dorsey v. Hammond, 472. An executor or administrator who over- pays is allowed to take the place of the creditor so paid, but he must prove the claim in like manner as might have been required of tlie creditor. — Watkins V. Dorsett, 531 ; Ex parte Street, 532. FRAUD. A voluntary conveyance by a parent who is indebted at the time, is of itself frau- dulent as against creditors, although good between the parties. — Hoye v. Penn, 32 ; Duvall v. Waters, 587. Where the defrauded party comes to have the conveyance set aside, equity will let it stand for what is really due, other- wise if he who takes under it comes to have it executed. — Strike's case, 81. If the statute of frauds be not specially relied on, or nothing is said of it, it is waived, and the defendant cannot object to any proof because it is not in writ- ing. — Lingan v. Henderson, 248; Og- den V. Ogden, 288. The whole agreement, as well the con- sideration as the promise, must be in writing. — Ogden v. Ogden, 287. The statute applies not to promises to marry, but to pay portions, &c. in con- sideration of marriage, 287. Although the defendant relies upon the statute, yet he must answer fully, so that if any thing appears which takes the case out of the statute the plaintiff may have relief, 288. Marriage alone is not a part performance ; but if the man in consequence of a let- ter to himself, his father, or a friend, promising a portion, marries, it is a per- formance on his part, and the promise ^ may be enforced, 288. Equity will in some cases relieve a party from the consequences of a fraud which has been practised upon a third per- son. — Chase v. Manhardt, 350. If a deed be not read at all, or be read improperly to an illiterate man, he will not be bound by it. — Colegate D. Ow- ings' case, 391. Weakness of mind may be taken into consideration with other circumstances to shew fraud, 377—390. What is meant by such weakness as an evidence of fraud, 391. The various kinds of circumstances which with weakness of mind constitute fraud, 391. Fraud and deceit by him who is trusted is the most odious, 397. HUSBANTD AND WIFE. As to the mode in which a feme covert may dispose of her real estate. — H. K. Chase's case, 228. A wife cannot be a witness for or against her husband ; therefore he cannot be bound or benefited by her answer. — Lin- gan V. Henderson, 260 — 260. In some cases the apparently joint answer of husband and wife may be treated as her separate answer, 269. If she apprehends he will not make a pro- per defence for her, she may as of course obtain leave to answer sepa- rately, 270. Real estate sold to effect a division, the rights of a feme covert ought not to be prejudiced thereby. — Jones v. Jones, 455. A share of real estate given to the wife for life, remainder to her children, on a sale to effect a division her share may be paid to her husband on his giving bond to pay to her children after her death. — Wells v. Roloson, 456. After a sale to effect a division, tlie bus- band of one of the parceners died, her share of the proceeds paid to herself, 456 ; Iglehart v. Armiger, 521. Real estate sold (o efl^ect a divison, the husband and wife may elect to take a portion of the proceeds of sale in lieu of the use of the whole given to the wife for life. — Wells v. Roloson, 457. If 3, feme covert devisee for life elects to take a part of the proceeds of sale as the value and in lieu of her life estate, she must do so by an application in writing attested. — Wells v. Roloson, 457. The law recognised in relation to what is called the wife's equity. — Jones v. Jones, 459. A sale to effect a division, one shai-e being the properly of the wife, tlie wife died, the share considered as personalty and awarded to the husband. — Spurrier v. Spurrier, 476 — 478. IMPROVEMENTS. A mortgagee in possession may be allow- INDEX. 697 ed for repairs and lastina; improve- 1 ments. — Rowlings v. Stewart, 22. On a bill ibr specific performance the defendant being unable to make a valid title, he was ordered to make the plain- tiif a reasonable allowance for such im- provements as would be beneficial to any subsequent possessor. — Rawlings v. Cairoll, 76. A bona fide possessor is:norant of his ad- versary's title may be allowed for such improvements as enhance the value of the property. — Strike's case, 76. A mala fide possessor can have no claim to any such allowance, 77 ; McKombx. Kankey, 363. A claim by a bona fide possessor for im- provements may be discounted from that made against him for rents and pro- fits or for waste. — Strike's case, 79 ; Rawlings v. Carroll, 76. A mala fide meddler cannot be allowed any thing for taxes, &c. in relief of the property any more than for improve- ments. — Strike's case, 83. In opposition to a claim for dower the heir can have no allowance for meliora- tions and improvements. — H. K. Chase's case, 232. A decree for the sale of land may be of such a nature as to leave the claim for improvements to be adjusted by further directions. — Strike's case, 70. INFANT. Money will not be paid out to a guardiaa ad litem of an infant party. — Corric v. Clarke, 8-5. Land might, before the act of 1785, ch. 72, s. 5, have been sold to pay debts with the consent, according to the act of 1773, ch. 7, s. 2, of the guardian ad litem of the infant heir. — Pue v. Dorseij, 140. The proceeds of the sale of land devised to a woman for life, remainder to her children, paid to her husband as their guardian on his giving bond. — Wells v. Roloson, 4-56, 457. After a sale to effect a division the shares awarded to the infants may be paid to their mother on her giving bond to account as their guardian. — Spurrier v. Spurrier, 477. INJUNCTION. Orders to stay proceedings or the execu- tion of a decree of this court treated as injunctions.— -Burch v. Scott, 123; Clap- ham. V. Thompson, 123. Where an injunction has been obtained against an executor or administrator, it will be sufficient if the answer states facts which must have been within fiie knowledge of the testator only, upon the belief of the executor or adminis- trator to have the injunction dissolv- •ed. — Coalc v. Chase, 137. 88 In what cases on the bill alone an injunc- tion, if prayed, may be granted, and how the bill must be verified. — Jones v. Magill, ISO ; Jenifer v. Stone, 189 ; Paul V. Nixon, 201. How and under what circumstances on the coming in of the answer there may be amotion to dissolve, ISO. The rule further proceedings and the ex- ceptions to the answer may be heard and acted upon together with the motion to dissolve, 181 ; "Gibson r. Tilton, 3-53. An injunction in extraordinaiy cases is granted upon terms suited to the pecu- liar circumstances, allowing a motion to dissolve to be heard at an early day. — Jones V. Magill, 1S2 ; McMechen v. Sto- ry, 184; Jenifer \. Stone, 188; Diffen- derffer v. Hillen, 190 ; Williamson v. Wilson, 419. Under the same bill a ne exeat as well as an injunction may be granted. — Brysou V. Petty, 182. An injunction may be partially dissolved on the defendant's giving bond, 182. Where an injunction has been granted on terms, leave to amend the bill will only be granted without prejudice to tliose terms. — McMechen v. Story, 184. A defenfant without waiting a subpmna may answer immediately, and there- upon move for a dissolution, 185. Where the injunction has been granted with leave to move for a dissolution without answer, if the defendant doe.s answer it will be considered on the mo- tion, 185. Delay in applying for an injunction affords a strong reason for refusing it, 185. The discretionary power of commission- ers to lay out a new road or street can- not be restrained by injunction. — IVorih- inston V. Bicknell, 187 ; Dijfcnderffer v. Hillen, .190 ; Pascault v. The Commis- sioners of Baltimore, 584. An injunction to stay the levying of what is due when the party insists on levying what is not due. — Jenifer v. Stone, 188. Where there are several defendants all must answer before there can be a mo- tion to dissolve ; but to this there are ex- ceptions. — Jones V. Magill, 190; Sleicarl V. Barry, 192 ; Williams v. Hall, 194 ; Chapline v. Betty, 197 ; Toitg v. Oliver, 199. When the chancellor is absent from the city where the court is held, an injunc- tion may be issued with the sanction of a disinterested solicitor, subject to tlie approval of the chancellor. — Steicart v. Berry, 191. An injunction cannot be dissolved on a consideration of the opposing title, without an answer to the interrogatories of the bill, 192. If there be a defect in the injunction bond, the injunctioii will not therefore be dis- 698 INDEX. solved without allowing time to give good security.- — Williams v. Hall, 194. The injunction bond should cover the whole amount of the supersedeas judg- ment, 194. The injunction cannot be dissolved if the answer be evasive, or does not deny the facts on which the plaintiff's equity rests,' 195. Although a defendant cannot directly coippel his co-defendant to answer, yet the plaintitf may be forced to urge for- ward, so as to enable the defendant to move for a dissolution. — Jones v. Ma- gill, 19S ; Tong v. Oliver, 199. The answer of an administrator if contra- dictory will not be sufficient to dissolve the injunction. — Tons; v. Oliver, 199. After the dissolution of the injunction the f)laintitf may proceed on his bill for re- ief at the final heai-iug. — Paul v. Nixon, 201. On a motion to dissolve, the /acfe set forth in the answer are alone to be regarded, not the opinions of the defendant. — Chase v. Manhardt, 335. If it appears that there still remains a dis- pute between the parties the injunction is continued, 336. Eut if there appears to be an overcharge or riere mistake in a judgment at law, it may be corrected without ordering a new trial, 350. If the facts on which the plaintiff's equity rests are positively denied, the injunc- tion must be dissolved. — Gibson v. Til- ton, 355. An injunction may be gianted and con- tinued as a suitable auxiliary to the appointment of a receiver. — William- son V. Wilson, 428. The mode of obtaining a dissolution of the injunction where the suit has abated by ■ the death of a party. — Griffith v. Bro- naugh, 548. ' No injunction will be granted to stay pro- ceedings at law until a bond has been given. — Billingsleaw. Gilbert, .566. The penalty of the injunction bond to stay proceedings at law should be at least double the amount of principal, interest, and costs, 566. If the surety be insufficient the party may be allowed time to 2,ive good surety ; but not if tiie court "lias been imposed upon, 566. Instead of a bond the defendant at law may deposite the amount with the re- fister, 566. ere the dissolution of an injunction has been obtained by fraud, it may be reinstated, 56S. An injunction to stay waste or trespass may be granted here in any case in which it would be granted according to the English authorities. — Duvallf. Wa- ters, 576. Where waste has actually been commit- ted, the plaintitf may under an injunc- tion bill have an account of waste com- mitted, 577. According to the English authorities an injunction cannot be granted to stay waste, if the title be denied, 570, 577. But in cases of patent right, nuisance, and some others, an injunction may be granted pendente lite at law, 577 — 584. Here an injunction maybe granted to stay waste pending an action at law, or a suit in this court to try the right, 580 ; The Attorney General v. Norwood, 581 ; Coale v. Garretson, 581 ; Flannagan v. Krips, 582 ; Gittings v. Dew, 583. But if the plaintiff fails or refuses to in- stitute a suit to establish his right, he can have no injunction to stay ti-espass upon land his title to which is denied. — Duvall V. Waters, 585. If after the plaintiff has filed his bill here to establish his right, waste is threat- ened or committed, he should apply here for an injunction by petition, not by bill, 585. An injunction to stay waste pending a suit to try the right will not prevent the occupying tenant from making the or- dinary uses of the land, 584. After a judgment at law the injunction may be perpetuated, dissolved, or lim- ited according to the extent of that judgment. — HilliJ. Bowie, 594. INSOLVENCY. A person in solvent circumstances may pay as he pleases, but when he falls into a condition of insolvency that privilege ceases, and his effects must be distri- buted equally or pro rata among all his creditors. — Williamson v. Wilson, 425. INVESTMENT. Money in court or in the hands of its trustee, may be invested so as to be made productive pending the litiga- tion. — Latimer v. Hanson, 56. ISSUE OF FACT. In a creditor's suit if a claim be strongly litigated and of difficult investigation, an issue may be sent out. — Ringgold v. Jones, 89. It is not indispensably necessary in any case that an issue should be made up ; it is only resorted to where the weight of the evidence can be better estimated by a jury. — Fornshill v. Murray, 485. JUDICIARY. The colonial courts of vice admiralty and their jurisdiction. — The Chancellor's case, 607 ; Hustings v. Plater, 613. A history of the independency of the ju- diciary, 607 — 615. The mode of constituting a chancellor INDEX. 699 "wTio receives no such commission as that ^ven to a judge, 623. A judicial salaiy is a compensation for services rendered, and must be secured during the continuance of" the commis- sion ; but may be reduced when the office is vacant, 621. As to the amount, duration of, and appro- priation of a judicial salaiy, 676. A judicial salary cannot be sold or mort- gaged, 621. A table exhibiting a comparative view of the amount of judicial salaries, 679. The duties of judge of the land office and those of chancellor exercised by the same judicial officer, 64S ; Cunning- ham V. Browning, 309. JUDGMENT. At common law as between party and party, a judgment binds from the first aay of the term ; but as against third persons it only operates as a lien upon the real estate from the day on which it is signed, and upon the personalty from the day on which the fieri facias is put into the hands of the sheriff. — Jones v. Jones, 448. A judgment in favour of the State ope- rates as a lien upon lands from the com- mencement of the suit, 445. An absolute judgment against an execu- tor or administrator is conclusive evi- dence of a sufficiency of assets. — Dor- sey V. Hammond, 472. JURISDICTION. A power given by will to appoint com- missioners to make partition cannot au- thorize the chancellor to proceed ex parte. — Howard's case, 367. The case as set forth in the bill must ap- pear at the hearing to be of such a na- ture as to fall within the jurisdiction of a court of chancery. — Estep v. Wat- kins, 489. Consent cannot give jurisdiction where the court has none. — Iglehart v. Armi- ger, 528. A ship in the harbour of Annapolis was held to be within the jurisdiction of the colonial court of vice admiralty. — Hast- ings V. Plater, 613. LAND In England all land held directly or indi- rectly of the king — the mode of obtain- ing an estate of Inheritance, or a lease for years of the king. — Cunningham v. Browning, 301—303. No land can be absolutely revested in the king, or the title of any one in posses- sion devested without office found, 302. The discoverer of escheatable land usu- ally rewarded with a lease thereof, 303. The lord proprietar}' absolute owner of the soil which he sold or gave to indi- viduals in pai'cels, from whom they were continually reverting by their fail- ing to comply with the terms of sale, or by forfeiture or escheat, 305, 306. Formerly in all, and now in some particu- lar cases, an inquest of office was ne- cessary to ie%^est in the proprietary or in the State lands which had been granted to individuals, 306. The discoverer of esc beatable land is re- warded with a portion of its value, 307. The acts of confiscation invested the State with the title to the lands without office found, 307. The State takes all land subject to the in- dividual rights which had been acquired from the lord proprietary-, 307. Office found necessary to devest a title held by an alien, Sec. 307. The mode of obtaining a patent grant of land from the land office, 308—326; Hopper v. Coleston, 323. Origin and nature of the land office as con- nected with the court of chancery, 308. The five different kinds of land warrants, 310 ; Fowler v. Goodivin, 328. Proceedings on an application for land in the land office, other than those under a caveat, 314. The grantee is entitled to whatever falls wiitliin the tract described in his patent ; and therefore is entitled to alluvion, accretions, and insular formations. — Ridsely v. Johnson, 316. A sufficient description gives an incipient legal title, and before a patent issues it isan imperfect legal right, not an equi- table interest. — Cunningham v. Brown- ing, 324. A patent gives a perfect legal title, which, by relation, takes effect from the com- mencement of the incipient title, 325. What is deemed a sufficient description so as to be regarded as a binding incipient title, 327 ; Fowler v. Goodirw, 327. An explanation of the term location as applied to land, 329. LEGACY. An annual sum given for maintenance takes effect from the death of the testa- tor. — Rebecca Owings' case, 296. The bequest of an annual sum charged upon land in the hands of the holder is a legacy.the payment of which equity willenforce, 296. Where a person is about to make his will devising his property to a person, and another prevents it by promising to convey the property or pay the money, and the testator in consequence thereof docs not so make his will, the promise is valid and may be enforced. — Cole- gate D. Owings' case, 404. LIEN. A judgment at common law operates, aa 700 INDEX. between the parties, as a lien upon the real estate from the first day of the term ; but by statute it only so operates as against purchasers from its date. — Jones V. Jones, 447. Although the lien liistcns upon the real estate by the judgment, yet if the case has abated by the death of either party, no execution can issue until it has been revived, 448. The lien of a judgment does not fasten upon personal estate until tha fieri facias has been actually delivered to the she- riff, 448. A judgment in favour of the State ope- rates as a lien upon its debtor's real es- tate from the commencement of the suit, 445 ; Hodges v. Mullikin, 515. The nature of a vendor's lien, and how it differs from other liens.— Moreton v. Harrison, 438 ; Iglehart i;. Armiger, 522. An assignment of the bond or note given to secure the payment of the purchase money does not carry with it the vend- or's lien, but is a tacit relinquishment of it. — Iglehart v. Armiger, 524. There may be two or more equitable liens upon the same land, as well as two or more mortgages, 526. On a sale under a decree the court is the vendor, and as such the holder of the equitable lien, 527. If the purchase money be not paid, the court under its equitable lien may order a resale at the risk of the purchaser. — Mullikin y. Mullikin, 541. LUNATIC. A woman may be appointed committee of a lunatic. — Gibson's case, 141. A lunatic cannot sue hy prochein amy; but without being so found lunatic may, under circumstances come in with other persons as co-plaintiffs, who may be appointed to receive the relief as her trustees. — Rebecca Owings' case, 293 — 295. Without an inquisition no one can be ju- dicially restrained as a lunatic, 293. The ordering of an inquisition is discre- tionary, and a person who is in fact non compos mciiiis maybe protected without an inquisition, 294. Although a father may appoint a guardian to his infant child, yet he cannot ap- point a guardian of his adult lunatic child, 295. On the death of a lunatic, who has been permitted to sue with others as her trustee, the suit abates ; and the trus- tee's authority ceases as to all purposes, but that of closing his accounts, 298. A suit which has been dismissed by undue influence upon a plaintiif in her dotage, may be reinstated and conducted by her solicitors. — Colegate D. Owings' case, 372. ] A person in dotage or an imbecile adult may sue by next friend, 373 ; Roihwell V. Bouahcll, 373. The person and property of one in dotage, though not declai-ed a lunatic may be protected by the court. — Colegate D. Owings' case, 373 — 375. In order to ascertain the mental condition of a party, medical professors may be ordered to visit him and make report to the court, 375. The maxim of the English law, that no man of full age shall be in any plea to be pleaded by him received by the law to stultify himself and disable his own person, considered and rejected, 376. Under the general legal terra, non compos mentis, is comprehended every species of mental derangement which incapa- citates a man from making a legal con- tract, 334. Non compos mentis, as in idiocy, as in de- lerium, as in lunacy, and as in dotage, 386—389. The becoming a lunatic does not release a contracting party from his liabilitj' ; and therefore the court may appoint a trustee to convey in his name in speci- fic performance of his contract. — Cole- gate D. Owings' case, 405. A lunatic defendant may have a guardian ad litem appointed to answer for him. — Roihwell v. Boushell, 373. MARRIAGE. The statute of frauds relates only to agree- ments made upon consideration of mar- riage. — Ogden V. Ogden, 287. Marriage alone is not a part performance of such an agreement, 288. A letter may under certain circumstances be deemed a binding contract within the meaning of the statute, 2SS. A contract of marriage is the parent not the child of civil society. — Fornshill v. Murray, 4SJ. If a marriage be valid where celebrated, it is valid every where, 485. It should be solemnized in the face of a church, or with the blessing of a cler- gyman, 481. General reputation with some exceptions is deemed sufficient evidence of a mar- riage, 482. A divorce can only be effected by an act of the General Assembly, 482. A county court may inquire into the va- lidity of a marriage, and declare it void, 483. The court of chancery may perhaps an- nul a marriage which has been pro- cured by abduction, terror, and fraud, 483. After the death of husband or wife there can be no judicial proceeding had for the purpose of bastardizing the issue, or barring dower or courtesy, 433. INDEX. 701 When a party founds his claim upon the validity of a mairiac;?, or the legitimacy of any one, such validity or lej^itimacy must be decided by the court, 484. MONEY. Money ordered to be paid out to the attor- ney in i'act, or to the solicitor of the party. — Hoye v. Penn, 40. Money will not be paid to the mere e^uar- dian ad litem of the defendant. — Corric V. Clarke, 86. Money may be brought into court by a trus- tee under a decree if he doubts as to its proper application. — V/ells v. Roloson, 456. To obtain an order upon a defendant to bring money into court, before the final hearing, it must appear, that he who asks it has an interest in the money, that he who holds it has no equitable right to it, and the facts as then shewn must be open to no further contro- versy. — McKim V. Thompson, 156. After a bill filed if the purchaser, being in Eossession, exercises acts of ownership e may be compelled to bring the pur- chase money into court, 161. Where it is agieed, that a debt shall be secured by negotiable notes payable six months after date, and the party fails to give the notes, the debt shall bear inter- est from the day when the notes, had they been given, would have fallen due. Chase v. Manhardt, .341. A debt shall not carry interest during the time the debtor is legally restrained from paying it, 342. If a creditor receives or recovers the prin- cipal so as not to relinquish his claim to interest, he may afterwards sue for and recover the interest, 348. Where there has been no decree to ac- count, but the sum has been ascertained by the auditor by consent, the interest ought not to be made principal .i.s in other cases. — Hoye v. Penn, 34. Where a decree for a sale expressly or tacitly affirms the validity of the plain- tiff's claim, interest upon it is a subject of further directions. — Strike's case, 70'. In a crerlitor's suit the claims as adjusted carry interest until paid, if the proceeds be sufficient to ])ay all. — Millar v. Ba- ker, 148. In a creditor's suit each claimant is en- titled to a proportion of the interest arising on the purchase money of the estate sold, according to the sum stated by the auditor to be then due him. — Low V. Conner, 469. MORTGAGE. Decree to redeem directing an account to be taken of the rents and profits and waste while in possession of tlie mort- gagee, allowing for repairs and lasting improvements. — Rawlings v. Stewarlt 22. To ascertain the true nature of the contract the court may look into all the contem- poraneous agreements and dealings be- tween the parties. — H. K. Chase's case, 225. The distinction between a mortgage and a sale with a covenant ibr repurchase, 225. If the husband and wife join in making a mortgage her right of dower can be affected only to the extent of the mort- gage, and she may call on the personal representative of the husband to dis- charge the mortgage, 227. Not less than twenty years can operate as a bar of a mortgage or equitable lien although the bond or note may be barred by twelve or three years. — Lingan v. Henderson, 282. A holder of an equitable lien cannot be compelled by the usual notice to come in under the decree in a creditors suit, but if he does come in the purchaser will take clear of his claim. — Millar v. Baker, 148. A decree to redeem may be made to result in a foreclosure. — Colegate D. Owings' case, 404 ; Etchison v. Dorsey, 537. Where the defendant fails to answer, and the mortgage debt is established by the mortgage and the plaintiff's affidavit, no commission need be issued ; the bill may be at once taken pro confesso. — Claphamv. Clapham, 127. A responding defendant will be permitted to shew pa}^ments either before a de- cree or after before the auditor, 127 . NE EXEAT. A we exeat as well as an injunction may be granted upon the same bill, and at the same time. — Brysonv. Petty, 182. ORDERS. An Older to take testimony and to shew cause as to the sufiiciency of an appeal bond. — Ringg9ld's case, 6. A special order affirming the auditor's re- port in part, and directing a distribu- tion accordingly. — Hoye v. Penn, 36. Further directions are those oixiers given lor the purpose of following out tlic equity which has been substantially es- tablished by the decree. — Strike's case, 69. Where a decree declares certain convey- ances to be void and directs the property to be sold, it virtually establishes the plaintiff's claim, leaving interest, rents and profits, allowances for improve- ments, and every thing in relation to the claims of other creditors who may come in for furtlier directions, 70. The form of an order md to have the bill takcnpro confesso. — Burch v. Scott, 114. 702 INDEX. An order to ^ive notice of a motion to dissolve an injunction at the then next term. — Jones v. Magiil, 180. An order appointing a receiver. — Hannah K. Chase's case, 214; Williamson v. Wilson, 428. An order to take testimony respecting claims in a creditor's suit, 434. An order calling on the administrator of a receiver to account, 438. An order overruling pleas and requiring an answer by a given day. — Moreton v. Harrison, 496. PARTITION. The mode of making partition of an in- testate's estate under the act to direct descents. — Hughes' case, 46. Where the parties take by purchase, par- tition may be made by the common law in chancery, although some of them be infants. — Corse v. Polk, 233 ; Wells v. Roloson, 456. In such case a sale may be made of the land if necessary, 233, 456. The commissioners may award to each his part, or if not, it may be done by lot by the court, 233. A sum of money awarded by way of equality of partition, may be declared to be a lien upon the share of him di- rected to pay, 234. A testamentary direction, that the chan- cellor shall appoint persons to make a partition cannot give jurisdiction in any way, much less authorize an ex parte proceeding. — Howard's case, 367. The parties should each recommend per- sons to be appointed commissioners to make partition, 368. The costs are borne equally or in propor- tion to the respective shares of each. — Hughes' case, 50. On a sale to effect a division of a real es- tate, no one of the distributees or his assignee can take any thing until he has satisfied all that is due from him to the others.— MuUikin v. MuUikin, 542. PARTNERSHIP. A partner can only be admitted as a credit- or against the es'tate of a deceased partner for his share of the surplus, after all the concerns of the partnership have been fully settled.— i^iftga-o/f^ v. Jones, 139. At the instance of a partner alleging that the firm is insolvent, and that his copartners are wasting the effects, a receiver may be appointed! — Williamson r. Wilson, 423. A partnership for a limited time may be dissolved before the expiration of the time by death or insolvency, 424. PARTIES. A decree affectina; the rights of one not a party is, as to him, fraudulent, and he may be relieved by original bill. — Burch V. Scott, 120. Where the property of several defendant? has been sold under a decree to satisfy a debt, leaving a sui-plus, any one of them may obtain an order directing a distribution of such surplus among them. — Hoye v. Penn, 38. The want of proper parties may be taken advantage of by demurrer, by plea, or at the hearing. — R. Owings' case, 292. Persons having no interest in the matter may be permitted to come in as co- plaintiffs with a person who is in fact jion compos mentis, in order to take care of his interests, 29.3—295. No part of the personal estate of a de- ceased debtor can be applied in pay- ment of his debts without making his executor or administrator a paity to the suit. — Jones v. Jones, 460. PETITION. Where a matter can only be brought be- fore the court by petition, if the matters therein set forth be not denied on oath, they must be taken to be true. — H. K. Chase's case, 212. PLEAS AND PLEADING. If a defendant pleads and answers to the same matter, his answer overrules his plea — and the same principle holds in case of demurring and ausweiing, or demurring and pleading to the same part. — Hannah K. Chase's case, 217. A plea of the statute of limitation to a bill to recover the purchase money of land. — Lingan v. Henderson, 246. There may be a plea of limitations to some one or more separate and distinct parts of the plaintiff's several causes of suit, 278. More precision required in a plea than a bill — a plea must be certain, exactly applicable to the case, and tender a material issue, 280. A plea of the statute of limitations of three years does not apply to a vendor's lien : "therefore as against such a lien it must be rejected, 280 ; Moreton v. Harrison, 500. Where the bill states facts which if true Avould take the case out of the statute of limitations, a plea of the statute must be sustained bv an answer deriy- ins such facts, 282, 493. A defendant may in equity as well as at law plead several distinct pleas. — Moretonr. Harrison, 493 ; Pddgelyv. Warfield, 494. Duplicity in one and the same plea is a vice in pleading in equity as well as at law. — Moreton r. Harrison, 496. Pleadings in equity are not so strict as at law ; yet in equity they must be sub- stantially sufficient. — Lingan v. Hen- derson, 280. The case as set forth must be of equitable cotjnizance as contradistinguished from that of common law, or a demurrer will lie or the bill may be dismissed at the hearing, 255. INDEX. 703 If any of tlie essential component facts of the case be not proved, or be dis- proved, the bill must be dismissed, 255. If the cause of suit as stated did not exist when the bill was filed, or has been ex- tinguished or barred, the bill must be dismissed, 255. Where there are a plurality of defendants, and the subject in controversy is di- visible, there may be a decree against all for a part, or if they are disjunc- tively or separately liable tliere may be a decree against each, 256. If the defence of any one defendant goes to the whole of one and the same cause of suit, the bill must be dismissed, al- though as against some others it might have been taken pro coiifesso, 255, 266. A defendant who can be in no way held liable cannot be allowed to put in a de- fence against the whole or any part of the case, 276. PRACTICE. A party may by petition object to the sufficiency of an appeal bond, and be allowed to take testimony and have the obligors called on to shew cause. — Ring- gold's case, 5. The principles and practice of this court derived from that of England, 18. Upon a defendant's being returned sum- moned he may appear and demur, plead or answer. — Cmcellv. Sebrey, 18. A defendant failing to appear, demur, plead, or answer, after having been summoned, may be attached, 18. All sheriffs to attend and make return of process, IS. Where process is prayed against several defendants they must all answer or the case be in a situation to have the bill taken pro confesso, before tliere can be any decree. — Hoye v. Penn, 33, 34. Where two or more sue as joint creditors, the proportion due to each may be ad- justed after the sale has been made and the proceeds brought in, 37. The surplus of the proceeds of sale may be awarded to the representatives of the debtor in proportion to their respective interests, 39. Money orderetl to be paid to the attorney in fact or solicitor of the party, 40. The trustee under the decree has the con- trol of the suit on the bond against the purchaser, 41. If a purchaser has no design to baffle the court and is unable to comply, he may be dischar2:ed on payment of costs. — Deaver v. Reynolds, 50. A trustee under a decree may be ordered to invest money, and on failins to do so or to bring it into court, may be charged with conipound interest. — Latimer v. Hanson, 53. Cases brought here from a county court must be followed out as if they had originated here without revising or re- versing any previous order or decree. — Strike's case, 67. Further directions are those orders given for the purpose of fbllow'ing out the equity established in substance by the decree, 69. In a creditors suit if a claim be strongly litigated and of difficult investigation, an issue may be sent out to be tried by a jury. — Ringsold v. Jones, 89. An order to produce books, &.c. can only be obtained by a party interested in such as he particularly specifies, against a party to the suit, 90. A plaintiff cannot be allowed to split up his claim and bring a separate suit on each part, or to introduce any addition to it after a decree for a sale. — Strike's case, 95. There is no publication of depositions — all objections to them are open, and may be taken at the hearing, 96. Where it is desired, that the auditor should state an account from the proofs some of which are objected to, such objec- tion must be first disposed of, 96. Contracts between a solicitor and suitor for professional services cannot be in- troduced into or blended with tlie cause of suit, 98. A form of an order Tim to have the bill takenpro confesso. — Burch v. Scott, 114. Orders and decrees may be altered or re- scinded during the term ; after that only by original bill or bill of review, 120. The filing of a bill of review or an origi- nal bill to set aside a decree does not of itself suspend its execution, 125. A bill of review for newly discovered mat- ter filed without leave may be dismissed on motion. — Carroll v. Pairan, 125. A defendant may, on motion, obtain further time to answer, 125. After the lapse of tlie time allowed by an order of publication against an absent defendant, he must appear and also an- swer, or the bill may be taken pro con- fesso. — Clapham v. Clapham, 126. During the term an interlocutory decree may be set aside on appearance with- out answer under the general powers of the court. — Hephvmw MoUison, 127. A decree by default for more than is dlie may after the term, if the plaintiff has lost no testimony, be set aside to let in a defence upon the merits. — Burch v. Scott, 129. Where a suit has abated by death, to be so entered, and not brought forward on the docket.— Hall I'. Hall, 132. A female defendant having married, her husband may be made a party, and an attachment issued against both to en- force an answer. — Taylorv. Gordon, 132. A s^ibpcena ad respond eiidvm may be serv- ed by the sheriff or by any person ; but if by any but a legal officer the ser- 704 INDEX. vice must be proved. — Hoye v. Penn 29 ; I\ii/lor v. Gordon, 132. It is enough if an affidavit to an answer be as positive as would sustain a prose- cution for perjury. — Coalc v. Chase, 137. The origin, powers and duties of trus- tees appointed by the court to sell pro- perty. — Gibson's case, 139. Notice of an order nisi for the ratification of a sale under a decree directed to be given by advertising in a newspaper, and also by setting up at the courthouse door. — Ex parte Margaret Black, 142. When a case is set for hearing on bill and answer, all the facts stated in the an- swer, as well those in avoidance as those responsive, must be taken to be true. — Estep v. AVatkins, 48S. The plaintiff may set the case down for hearing on bill and answer, because he thereby admits every fact contained in the answer to be true. — Paul v. Nixon, 201. Where a matter can only be brought be- fore the court by petition, if the facts therein set forth be not denied on oath they must be taken to be true. — H. K. Chase's case, 212. If a defendant pleads and answers to the same matter his answer overrules his plea; and the same principle holds in case of demurring and answering, or demur- ring and pleading to the same part, 217. An answer sworn to before a justice of the peace in the District of Columbia, who was certified to be such at the time, received. — Lingan i'. Henderson, 240. A certificate of the printer that an order of publication was published as dii-ected deemed sufficient, 240. An order that a commission issue unless by a day the opposite party name and strike, 240. It must be shewn by the bill, that the de- fendant is a nonresident, or that the case is such as to authorize an order of publication instead of a subpmna, 245. An order of publication, as the substitute of a subpoena, is passed as of course, and is taken at the peril of the plaintiff, 245. An order of publication must go against the wife as well as the husband, or she will not be bound, 246. A defendant cannot object before the com- missioners that the eviilence is not such as is required by the statuteof frauds, 24S. An auditor's report confirmed directing an application of the proceeds with a propor- tion of interest. — Wells v. Rolosori,45G. Money brought in and deposited in bank as usual cannot be drawn out but by a special order, 457. A commission to audite accounts may go to any place most convenient to the parties. — Dorspy v. Hammond, 4fi5. After a claim has been submitted and re- jected, the order will not be rescinded to let in new proof upon any ground which would not warrnnt a bill of re- view or a rehearing, 473. Notice of the hearing of contested claims in a creditors suit may be given by pub- lication. — Spurrier v. Spurrier, 476. Proof of the publication of an order for creditors to come in, of an order of ratification nisi, &.c. may be made by the printer's certificate, or by the pro- duction of the newspapers, 475. Where the chancellor doubts the fact or the testimony is obscure, an issue may be sent out to be tried. — Fornshilly. Murray, 485. The act of 1820, ch. 161, does not apply to abatements after a decree ; such cases may be revived by subpcena scire facias. — Allen v. Burke, 544. After the return of a subpcena scire facias, the case may on motion be ordered to stand revived, 546. The act of 1820, ch. 161, gave a new mode of proceeding only in those cases where a proper bill of reviver will lie. — Griffith V. Bronaugh, 547. The mode of taking the answer of an adult or infant defendant. — Snowden v. Snowden, 550. The mode of proceeding by publication against a nonresident infant defendant. Burd V. Greenleaf 556. The origin, nature, and extent of the rule which may be laid calling on the plain- tiff to give security for costs. — Mayer V. Tyson, 561. The sufficiency of an injunction bond may be objected to, and further time allowed to put in good security. — Bil- lingslea i'. Gilbert, 566. The form of a commission to make parti- tion of lands under the act to direct descents. — Hughes' case, 47. The sheriff to execute a summons for wit- nesses to appear before commissioners to take testimony. — Bryson v. Petty, 182. The form of a subpcena scire facias to re- vive. — Allen V. Burke, 546. PPvINCIPAL AND INCIDENT. A gift, assignment, or bequest of the principal, carries with it all its benefi- cial incidents. — Iglehart u.Armiger, 524. PRINCIPAL AND SURETY. Mere delay without fraud or collusion can- not affect the rights of a creditor against either principal or surety. — Hoye v. Penn, 30. Whcrf" two or more are equally or jointly liable either as principals, or as sureties, the property of each may be directed to be sold in the first instance, so as to cause the burthen to bear upon each in due proportion, 32. In ordinary money bonds there being no dis- tinction betwecnprincipal andsurety,and beinsi alike bound, a case can rarely occur in which the ono who is in fact surety may be discharged because of the laches of the obligee. — Hoffman v. Johnson, 105. INDEX. 705 A surety in a common money bond may come into equity to compel his princi- pal to pay or jelieve him from his lia- bility ; but not in the case of a bond of indemnity, 105. The liability of one who stands as surety on negotiable paper, is regulated by peculicir commercial law, 105. In case of a bond for the performance of services, if there be any undue laches, the surety will be discharged, 106. Where a creditor receives a chose in ac- tion for the purpose of obtaining pay- ment from it, he is bound to use due diligence for that purpose ; and on fail- ing to be ready to reassign, 106 ; Dor- sey V. Campbell, 357. A trustee under a decree and his surety called on to pay or shew cause. — Mul- likin V. Mullikin, 529. A purchaser under a decree and his surety called on to pay or shew cause, 541. PRODUCING BOOKS. An order to produce books, &c. can only be obtained by a party interested in such as he particularly describes. — Ring- gold V. Jones, 90. The application must be made on oath ac- cording to the act of 1798, ch. 84, to pro- duce books, &c. — Williams v. Hall, 196. Although the books be held under the di- rection of a trustee who objects, they must be produced, 196. PUBLICATION. After an order of publication against an absent defendant, he must appear and cJso answ-er, or the bill may be taken pro confesso. — Clapham v. Clapham, 126. An order of publication is the substitute for a subpana ; hence it must appear by the bill, that the case is such as to authorize such order. — Lingan v. Henderson, 245. The wife as well as the husband must be warned by such order or she will not be bound, 246. If the case be in fact such as does not allow of such an order the decree will be void ; hence the party takes the or- der as of course at his peril, 246 ; Snow- den V. Snowden, 558. As to publication against absent infant defendants. — Burd v. Greenleaf, 556. PUBLIC RECORDS. An affidavit to an answer to a bill in chan- cery of this State, or the like, is an authentication called for by the jiidicial power here, and as such is parcel of the records of this State, and not within the act of congress providing for the authen- tication of records, &.c. of other States. Gibson v. Tilton, .353. Such authentications and the executions of commissions to take evidence al- lowed and executed by the comity of all nations, and to be encouraged as between the States of this Unionj 354. 89 Although a person cannot be punished here for a false oath taken abroad ; yet if such authentication be spurious a party who introduces it may be punished for such an imposition upon the court, 355. RECEIVER. The appointment of a receiver does not involve a decision upon any right — it can only be made at the instance of a party who has an acknowledged inter- est or a strong presumption of title in himself alone or in common with others ; and where the property itself or its rents and profits are in dangerof being materi- ally injured or totally Tost. —H.K.Chase's case, 213 ; Williamson v. Wilson, 422. Where lands are charged with the pay- ment of an annual sum, a receiver may be put upon it as a means of enforcing payment. — Rebecca Owings' case, 297. The power to appoint a receiver is now as well established and of as great utility as any which belongs to the court. — Williamson v. Wilson, 420. A receiver may be clotlied with authority to take and hold property, to collect debts, &c. so as to meet the exigency of the case, 421. He is an officer of the court — his ap- pointment alters no right, not even so as to prevent the running of the statute of limitations, 421. The appointment of a receiver is as little open to abuse as einy other judicial pro- ceeding, 422. A receiver may be appointed before an- swer at the instance of a partner alleging that the firm is insolvent, and that his copartners are wasting the effects, 422. The appointment does not of itself divest any one of possession ; the possessor may shew cause against a delivery, 424. A proper person is selected on the recom- mendation of the parties and on con- sideration of all circumstances, 427. A receiver may be compensated by a commission, and allowed for all expenses incurred in the defence and preserva- tion of the property on vouchers being produced, 433. He is bound so to keep the property as that it may be easily traced, delivered up, or accounted for, 436. He may be proceeded against in a sum- mary way, or his bond sued on here by scire facias, or at law by action, 436. On the death of a receiver his personal re- presentatives may be proceeded against summarily to enforce payment or de- livery-, 437. On a final and full account a receiver or his representatives may be discharged and his bond cancelled, 439. RELIGION. A devise to a religious society without the leave of the legislature is void. — Murphy v. Dallam, 529. 706 INDEX. REMOVED CASES. Cases brought here from a county court must be followed out as if they had origi- nated here, without revising or reversing any previous order or decree, except in the regular way. — Strike's case, 67. RENTS AND PROFITS. An occupying tenant is liable for rents and profits whether he knows of the adverse title or not.— Strike's case, 71. May be recovered in equity where there is any difficulty at law, or where the title is merely equitable ; after the title has been established by the decree, rents and profits may be a subject of further direc- tions, 72. The account in some cases is carried back only to the filing of the bill, in others to the commencement of the title, 73. A mortgagee or rightful holder is chargeable only with actual receipts ; but a wrongful holder is accountable for the full value or what might have been made, 73. A claim by a bona fide possessor for im- provements may be discounted from that made against him for rents and profits or for waste, 79 ; Rawlings v. Carroll, 76. RESURVEY. The right to take in contiguous vacancy, by a warrant of resurvey from the land office, is incident to the legal title only. Hoffman v. Johnson, 110. REVIEW. There can be no bill here in the nature of a bill of review as understood in Eng- land.— Burch V. Scott, 122. A bill of review, its nature, either for error apparent or newly discovered matter, 122 . The filing of a bill of review or of an original bill to set aside a decree does not of itself suspend the execution of a decree, 12.5. A bill of review for newly discovered mat- ter filed without leave may be dismissed on motion. — Carroll v. Parr an, 125. The allegation of the fact, that the matter is newly discovered on which an appli- cation is made to file a bill of review should be then controverted and finally determined so as not to be drawn in question after the bill has been filed. — Hodges V. MuUikin, 506. If the discovery of the new matter was made so long before the decree as to have admitted of an application to have it brought in, a bill of review will not be allowed, 511. The party must have used reasonably active cliligence in searching for and bringing in his proofs, or a bill of re- view will not be allowed, 511. Although a bill of review may be refused to a party because of his own demerits, yet it may be granted with a view to the protection of the interests of others, 513. REVIVOR. Rules to be observed on the application of the representative of the deceased party to be let in under the act of 1820, ch. 161, to revive on an abatement by death. — Labes v. Monker, 130. The mode of reviving given by the act of 1820, ch. 161, applies only to cases of abatement by death, not to abatement by the marriage of a female plaintifi'. — Hall V. Hall, 132. That new mode is confined to cases where a proper bill of revivor will lie except as to a devisee, 132. The act of 1820, ch. 161, does not apply where a subpcena scire facias is the pro- per mo^de, 133 ; Allen v. Burke, 545. Where a suit has abated by death, to be so entered and not brought forward on the docket, 132 note. If the suit abates after a decree affecting both real and personal property, it may be revived by the heirs or personal re- presentatives or by either. — Colegate D. Owings' case, 409. There may be a revival for costs, 409. After a decree to account either party may revive. — Griffith v. Bronaugh, 548. ROADS. A mill race not a building within the mean- ing of an act of Assembly for opening-a new road. — Worthingtonv. Bicknell,187 . SALES UNDER A DECREE. Where it appears that the person reported as the purchaser had no design to baffle the court, he may be discharged on pay- ment of costs. — Deaver v. Reynolds, 50. Where the property of a debtor has been sold for an amount equal to the whole claim the debtor is discharged, notwith- standing any subsequent depreciation or failure in collecting the proceeds of sale. — Hoye v. Penn, 64. The trustee may be directed to convey to the assignee of the purchaser on the payment of the purchase money, 36,39. Under a decree for a sale, in a creditors suit, the then growing crop should not be sold. — Taylor v. Colegate, 365. On a sale under a decree the court is the vendor, and as such the holder of the equitable lien.— Iglehart ?;.Armiger, 527. If the purchase money be not paid the court upon its equitable lien may order a resale at the risk of the purchaser. — MuUikin v. Mullikin, 541. SOLICITORS. Money may be paid out of court to a so- licitor of the party entitled to it. — Hoye IK Penn, 40 note. A commission allowed to solicitors accord- ing to an admitted special agreement. — Strike's case, 63, 95. A contract between a solicitor and suitor for professional services cannot be in- INDEX. 707 troduced into and blended with a pend- ing suit, 98. A solicitor cannot be permitted at any time to divulge the secrets of his cli- ent without his consent. — Hannah K. Chase's case, 222. A solicitor may refuse to act further for his client, but he cannot go over to the opposite part}', 222. SPECIFIC PERFORMANCE. On a bill to obtain a legal title according to a bond of conveyance, the defendant may be ordered to produce an act of Assembly to confirm the conveyance. — Raniin9:s v. Carroll, 75. Verbal proof in any respect essentially different from the vsTitten contract, or of the written part of it cannot be re- ceived. — Ogden V. Ogden, 287. If it be doubtful whether a letter, con- cerning a contemplated marriage, was intended as an agreement to pay a por- tion or not, the court will not decree a performance, 288. Where the plaintiff by his bill offers to per- form his part, and the answer admits or sets out the agreement which is proved, there may be a decree against each with- out a cross bill. — Dorsey v. Campbell, 359 ; Watkins v. Watkins, 359 ; Long v. Gorsuch, 361 ; Etchison v. Dorsey, 536. STATUTE OF LIMITATIONS. After the claim of a creditor has been contested upon its merits, the heir can- not be allowed to rely upon the statute of limitations. — McMechen v. Chase, 85. In a creditors suit if the statute of limi- tations be not specially objected to a claim, it cannot be taken advantage of. — Strike's case, 91. Tn a creditors suit the statute of limitations maybe relied on in bar of a claim brought in under the decree, by any one of the original parties or by a co-creditor, 93. The policy of the statute is, that there should be an end to litigation — it goes to shew, either that the claim never existed, or that it has been satisfied. — Lingan r. Henderson, 272 ; Moreton v. Harrison, 501. The statute applies onlyby analog}^ in equi- ty : if the party would have been barred at law he shall be barred in equitj-, 273. There are various circumstances which will take a case out of the statute or prevent its operation, 273. A promise or acknowledgment takes a case out of the statute because of its being a renewmcnt of the contract ; and therefore where there is a plurality of defendants, it must come from all or from a then partner or person compe- tent to contract for all, 277. The statute of limitations may be availa- ble against only a part of the cause of suit, 278. Such a plea cannot be received to enure only to the benefit of him who pleads it against a bond, note, or the like, 278. Where the purchase money has been se- cured by an equitable lien, a bond, and a note ; twenty years only is a bar to the lien, twelve years of the bond, and three years of the note ; but if the bond or note be so barred on suit, that can- not affect the lien in equity, 280, 500. A partial payment takes the case out of the statute of limitations. — Moreton v. Harrison, 493. On a plea of the statute, if the bill alleges any fact which would take the case out of the statute, such fact must be denied by an answer in support of the plea. — Lingan v. Henderson, 282 ; Moreton v. Harrison, 493. A plaintiff may take advantage of the statute for the protection of his inter- ests. — Watkins u. Dorsett, 532. There is no saving in the act limiting ap- peals in favour of persons non compos mentis. — Colegate D. Owings' case, 408. TRUSTEE UNDER A DECREE. A trustee who has obtained judgment against a purchaser upon his bond may have the same land sold under a fieri facias upon such terms as he may deem best on consulting with the parties con- cerned. — Hoye V. Penn, 41. A trustee may be required to invest mo- ney in his hands, and on his failing to do so or to bring it into court, may be charged with compound interest. — Lati- mer i;. Hanson, 53. He is not bound to accept or to continue in the office ; but if he does do so, he must obey the orders of the court, 56. This court has the power, independently of any act of assembly, to employ a trustee to execute its orders or decrees by a sale or otherwise. — Gibson's case, 139 ; Pue V. Dorsey, 139. A trustee is regarded as the legal ministe- rial officer of the court, 139. A feme sole may be employed as a tnis- tee, 141 ; Ex parte Margaret Slack, 142. In a creditors suit the widow may be ap- pointed trustee, so that the commis- sions may be saved to her and her chil- dren. — Gibson's case, 141. The register of this court, the clerk of a court, an infant, a feme covert, a non- resident, or an officer of the army or navy cannot bo appointed trustee, 143. A trustee being appointed during plea- sure may at any time be removed for cause, 143 ; Mackubin r. Brown, 412 ; IMullikin r. Mullikin, 539. In the selection of a trustee recommenda- tions are heard, and all circumstances considered. — Gibson's case, 143. Where the decree directs the property to be advertised for sale, the trustee must so put it into tlie market ; but after that 708 INDEX. he may sell as he can, 144; Mackubin V. Brown, 415. He cannot give notice to creditors with- out an order from the court. — Gibson's case, 144. Commissions to trustees are regulated by act of Assembly and by rule of court, 145—147. A trustee may employ an auctioneer to whom a fee of live dollars may be al- lowed for each separate sale, 147. The commissions of a trustee may be increased, diminished, apportioned, or withheld accordinsj to circumstances, 147 ; Millar v. Baker, 149. If a trustee fails to bring in or account for the money, bond, or notes, he may be charged with the whole amount of the sales.— Mackubin v. Brown, 416. Bonds and notes may be assigned to the parties in satisfaction of their claims, but it is most usual to suffer the trustee to hold them for collection, 416. By holding the trustee liable the court neither pai-ts with any lien, nor exone- rates any one else, 417. A delinquent trustee cannot be let in to have the benefit oi' a discount as against any claimant in the case, 417. Where a report of the auditor has been affirmed, and the trustee directed to dis- tribute the proceeds accordingly, he must distribute the amount in hand ac- cording to that proportion, and the resi- due in the same way as received. — Iglehartw. Armiger, 521. A trustee and his surety maybe called on to bring the money into court or shew cause.— Mullikin v. Mullikin, 539. VENDOR AND VENDEE. Land sold in a body, by a designated name, or by the acre, there can be no claim for deficiency. — Hoffman v. John- son, 109 ; Murdoch v. Beal, 109. But it is otherwise if it be sold by the tract containing so many acres more or less, 109. To every grant of land from the State there is an implied warrant\- to make up the specified quantity to the holder, 110. A holder of the ZegaZ title may by a war- rant of resurvey take in any contigu- ous vacancy, 110. A vendee has a right to, and is bound to take all incidents to the land he purchases, and therefore must take land which the vendor has included by a warrant of re- survey. — floffman ?\ .Johnson, 110. Land devised to bo sold was sold by the executor imder an apprehension, that ho was authorized to do so, tlie sale was af- firmed. — Ex pnrfp Marg:arrt. Black, 142. After a bill filed, if the purchaser, being in possession, exercises acts of owner- ship, he may be compelled to bring the purchase money into court. — McKimt>. Thompson, 161. A purchaser has a right to demand a sound legal title, unless it has been oth- erwise distinctly understood at the time of the purchase. — Stewart v. Barry, 192. To ascertain the true nature and meaning of a contract the court may look into all the contemporaneous dealings and agreements between the parties. — Han- nah K. Chase's case, 225. The forms by which a feme covert of full age may legally convey her right to real estate or bar her right to dower, 228. The origin and objects of recording con- veyances for land, 2.30, note. The usual receipt for the purchase money on a deed for land is evidence of the low- est order. — Lingan v. Henderson, 249. WASTE. A mortgagee in possession may be charged with, and made to account for waste. — Rawlings v. Stewart, 22. On a bill for specific performance the de- fendant being unable to make a vedid title was perpetually injoined from recovering the purchase money, and the plaintiff or- dered to account for waste beyond what might have been proper in the use of the land. — Raivlings v. Carroll, 76. The difference between waste and tres- pass. — Duvall V. Waters, 571. An injunction may be granted here to stay waste in any case in which it would be allowed by the English law, 576. The nature and office of a writ of estrepe- ment, 57.3. The writ of prohibition to stay waste, 572. Where waste has actually been committed the plaintiff under an injunction bill maj' have an account of waste, 577. There is no common law mode of pre- venting a threatened trespass, 573. WITNESSES. A summons for witnesses to depose before commissioners to take evidence must be served by the sheriff if required, upon which their attendance may be enforced by attachment. — Brijson v. Petty, 182. The policy of the law does not permit a solicitor to divulge the secrets of his client without his consent. — Hannah K. Chase's case, 222 ; Hodges v. Mullikin 509. A commission maybe granted to take the deposition dc bene esse of an aged and infirm witness. — Lingan i\ Henderson, 2.38 ; Rymer v. Dvlany, 238. A witness may be compelled to attend and give evidence under a commission sent here from another State. — Gibson v. Tilton, 354. WILLIAM & JOSEPH NEAL, LAW BOOKSELLERS, 174, MARKET STREET, BALTIMORE, Receive all the New English and American Law Publications as soon as they are issued. 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