(fenrll ffiaui ^rljnol library HaraljaU lEqmtg (Eallerttott (gift of IE. 31. iiatatjall, £.£.$. 1B94 CORNELL UNIVERSITY LIBRARY 3 1924 084 264 1 79 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924084264179 EQUITY PROCEDURE AS ESTABLISHED IN THE COURTS OF MARYLAND EDGAR G. MILLER, Jr , OP THE BALTIMORE BAH. BALTIMORE M. CURLANDER Law Publisher, 1897 l3£3£/3 Entered, according to Act of Congress, in the year 1897, by M. CURLANDER in the office of the Librarian of Congress, at Washington. PRESS OF GUGGENHEIMER, WEIL & CO., BALTIMORE, MD. PKEFACE. This volume is intended to be an exhaustive presentation of the decisions of the. court of appeals of Maryland upon the subjects embraced herein. For this purpose the author has examined the Maryland Reports, page by page, from the first volume of Harris and McHenry to 83 Maryland, inclusive. It has not, however, been thought advisable, except in special instances, to include matters which have not been considered in the decisions of the court of appeals or the court of chan- cery. The index has been prepared with much detail, and this has rendered unnecessary the insertion of a table of the ten thou- sand citations of cases. The statutes passed since the adoption of the code of 1888 have frequently been given in full, for convenience of refer- ence. The appendix contains the general equity rules, adopted by the court of appeals, (and a specially prepared index thereto,) and all the local equity rules that are obtainable in printed form. I am indebted to Mr. Wm. R. Brewer for the notes (bear- ing his name) which appear in certain chapters. EDGAR G. MILLER, Jr. ADDENDA. On page 332, in note 1 to sec. 266, the case of Martin v. Evans, 84 Md. — , is merely cited. In this case it is decided that a decree dismis- sing a bill, without words of qualification, is conclusively presumed to be upon the merits. When the opinion was published, the page had been put in type, and could not be lengthened. On page 332, in the eighth line of the notes, the words "for other" should read "further." On page 369, in the seventh line of the text, the word "they" should .read "it." On page 401, note 8 should follow the seventh line of the notes, and should read " 8 Stem v. Cox, 16 Md. 533, 538." TABLE OF CONTENTS. CHAPTER I. THE COURTS; THE JUDGES, CLERKS AND RULES. CHAPTER II. WHO MAY SUE AND BE SUED; AND HOW THEY APPEAR AND DEFEND. CHAPTER III. PARTIES. CHAPTER IV. THE BILL. CHAPTER V. PROCESS AND APPEARANCE. CHAPTER VI. . . DEMURRERS. CHAPTER VII. PLEAS. CHAPTER VIII. ANSWERS. CHAPTER IX. REPLICATION. CHAPTER X. GENERAL PRINCIPLES OF PLEADING; IMPERTINENCE AND SCANDAL; AMENDMENTS. CHAPTER XI. CROSS-BILLS; SUPPLEMENTAL BILLS; ABATEMENT AND REVIVOR. vi Table op Contents. CHAPTER XII. THE TAKING OF TESTIMONY. CHAPTER XIII. MISCELLANEOUS INTERLOCUTORY PROCEEDINGS. CHAPTER XIV. THE HEARING. CHAPTER XV. DECREES. CHAPTER XVI. COSTS. CHAPTER XVII. CORRECTION OF DECREES OTHERWISE THAN BY AP- PEAL. CHAPTER XVIII. APPEAL. CHAPTER XIX. CREDITORS' BILLS. CHAPTER XX. SALE FOR THE PURPOSE OF PARTITION. CHAPTER XXI. SALE OF INFANTS' PROPERTY. CHAPTER XXII. SALE TO BIND PERSONS NOT IN BEING. CHAPTER XXIII. SALE OF LUNATICS' PROPERTY. CHAPTER XXIV. PARTITION. CHAPTER XXV. FORECLOSURE OF MORTGAGES. Table of Contents. vii CHAPTER XXVI. SALES UNDER DECREES. CHAPTER XXVII. THE AUDITOR, AUDITOR'S ACCOUNT AND PROCEED- INGS IN REFERENCE TO CLAIMS. CHAPTER XXVIII. COMMISSIONS AND COUNSEL FEES. CHAPTER XXIX. INJUNCTIONS. CHAPTER XXX. RECEIVERS. CHAPTER XXXI. SPECIFIC PERFORMANCE. CHAPTER XXXII. MISCELLANEOUS PROCEEDINGS. APPENDIX. GENERAL EQUITY RULES. INDEX TO GENERAL EQUITY RULES BALTIMORE CITY EQUITY RULES BALTIMORE COUNTY EQUITY RULES CECIL COUNTY EQUITY RULES FREDERICK COUNTY EQUITY RULES MONTGOMERY COUNTY EQUITY RULES Maryland Equity Procedure. CHAPTER I. The Courts : the judges, clerks and rules. §i. The court of chancery. 2. The county courts as courts of equity. 3. Equity courts in Baltimore city. 4. Statutory jurisdiction as to lands, persons and amount. 5. The judges as chancellors. 6. Clerks of court. 7. Rules of court. 8. The equity rules. §1. The court of chancery.— The chancery court of England 1 has always been considered as the prototype of that of Maryland; and as courts of equity there was scarcely any difference between them. 2 The principles and powers of the English court at the time of the Revolution, not altered by our legislation, nor inapplicable to our political institutions, 1 See Pomeroy, Eq. Jur. sees. 1-39, as to the origin of equity juris- diction; and Phelps, Jur. Eq. sees. 1-10, for a synopsis of the his- tory of the English chancery court. The Maryland court is termed the ''court of chancery,'' or the "high court of chancery," in the various acts of assembly; as in the act of 1835, ch. 346. 2 Cunningham v. Browning, 1 Bl. 299, 301, 325-326; the chancery court of Maryland, as well as that of England, was originally resorted to as an ofUcina brevium. In cases of scire facias, to repeal letters patent, and in some others, in which the chancellor sat as a court of common law, his authority was substantially the same in both coun- tries; see this case for the history of, and proceedings in, caveats to land in the chancery court as a court of law; compare, also; the Chancellor's case, 1 Bl. 595, 648-650; Ringgold's case, 1 Bl. 5, 18-19; McKim v. Odom, 3 Bl. 407, 425; Baltimore v. McKim, 3 Bl. 453, 456- 466; Brown v. Wallace, 2 Bl. j85, 603; Townshend v. Duncan, 2 Bl. 45, 58; Duvall v. Waters, 1 Bl. 569, 577; Jones v. Badley, 4 Md. Ch. 167, §1 The courts. 2 were the same as those by which the Maryland court of chan- cery was governed. 3 The decisions of the English courts prior to the Revolution are in general binding authorities; subse- quent decisions, although entitled to great respect, are not re- ceived as absolute authority.* The office of chancellor 6 existed under the proprietary government 8 and was specifically recog- nized by the constitution of 1776. 7 By the constitution of 1851 it was provided that the then chancellor should continue in of- fice for a certain period after the adoption of the constitution, after which the office of chancellor should be abolished. 8 170; Jamison v. Jamison, 4 Md. Ch. 289, 294; Thompson v. McKim, 6 H. & J. 302, 332; Chase v. McDonald, 7 H. & J. 160, 197; compare California v. Southern Pacific Co., 157 U. S. 229, 248-249. s Amelung v. Seekamp, 9 G. & J. 468, 472. *Koontz v. Nabb, 16 Md. 549, 555; compare Declaration of Rights, 1851, art. 3; do. 1864, art. 4; do. 1867, art. 5. InThomson v.Wooster, 114U. S. 104, 112, note, it is said: "Refer- ence is made to the first edition of Daniell, (Chancery Practice,) pub- lished in 1837, as being, with the second edition of Smith's Practice, (published the same year,) the most authoritative work on English chancery practice in use in March, 1842," when the equity rules of the supreme court of the United States were adopted. "See in general the Chancellor's case, 1 Bl. 595. 618-627, 678-686;. Townshend v. Duncan, 2 Bl. 45, 58-60. "See Cunningham v. Browning, 1 Bl. 299, 308-310; the Chancellor's case, 1 Bl. 595, 649, and table in note on page 679; Townshend v. Dun- can, 2 Bl. 45, 58-59; Birchfield v. Brown, 1 Bl. 446-447, note case. Prior to the Revolution, the functions of a chancellor devolved upon the proprietary governors or their appointees; Phelps, Jur. Eq. sec. 19; the Chancellor's case, 1 Bl. 595, note to page 680; com- pare the argument of counsel in Manly v. State, 7 Md. 135, 142, 143 and page 146. As to the officers of the court of chancery, see Alex. Ch. Pr. 1-9; Deale v. Estep, 3 Bl. 433, 436-438. 'Constitution, 1776, 40, &c; Declaration of Rights, 1776, 30. The court of chancery was held at Annapolis; Townshend v. Duncan, 2 Bl. 45, 58; it had a jurisdiction co-extensive with the limits of the State; Binney's case, 2 Bl. 99, 144-145; Brooks v. Delaplaine, 1 Md. Ch. 351, 353; Maccubbin v. Matthews, 2 Bl. 250, 253-254; Alex. Ch. Pr. 9-13. 8 Constitution, 1851, art. 4, sec. 23; and it was further provided that no new business should originate in the court of chancery after the ratification of the constitution; see Estate of Rachel . Colvin, 3 Md. Ch. 278, 290-291. During the existence of the court of chancery, removals to that 3 The courts. §2 §2. The county courts as courts of equity.— The county courts were originally courts of common law merely. Prior to the year 1763 the chancellor alone exercised equity jurisdiction ; but by an act of that year equity powers were con- ferred on the county courts in certain cases. These powers were extended by various acts, and in 181 5 the county courts, as courts of equity, were vested with all the powers and juris- diction that could be exercised by the chancellor. 1 The consti- tution of 1851 provided that the circuit courts for the, counties should have and exercise in the several counties of the State all the powers which the then county courts had and exercised, or which might thereafter be prescribed by law; and that the court from the county courts sitting in equity were allowed by various statutes; see the acts of 1824, ch. 196; (Strike's case, I Bl. 57, 66, 67); 1827, ch. 196; 1831, ch. 309; 1835, ch. 346, &c. The removal was made upon suggestion by a party with an affidavit that the removal was not desired for purposes of delay; Alex. Ch. Pr. 13-14. In these cases the cause was proceeded with as if it had not been removed; Strike v. McDonald, 2 H. & G. .191, 261; Phelps v. Stewart, 17 Md. 231, 239. The removals ceased upoh the ratification of the constitu- tion of 1851, (art. 4, sec. 23,) on the first Wednesday of June, 1851, and the court of chancery ceased to exist on March 10, 1854; Brown v. Gilmor, .8 Md. 322, 326; Contee v. Pratt, 9 Md. 67, 73. The cases and proceedings therein pending were directed to be transmitted to the several counties and the city of Baltimore; constitution, 1851, art. 4, sec. 23; act of 1853, ch. 123; 1854, ch. 149, sec. 4; 1856, ch. 132, sec. 4. Under these acts the order for the removal transferred the jurisdiction from the chancery court; Brown v. Gilmor, 8 Md. 322, 327; and the jurisdiction passed as if no removal had taken place; Dugan v. Hol- lins, 11 Md. 41, 75; and the cause was proceeded in as if it had not been removed; Phelps V. Stewart, 17 Md. 231, 239; and as a continuance of the same cause; Glenn v. Hebb, 17 Md. 260, 281. In Manly v. State, 7 Md. 135, 145-146, it is said that the chancery court was abolished, but the system of equity jurisprudence was not otherwise disturbed than by transferring the jurisdiction to other courts. *Act of 1815, ch. 163, sec. 1; Brooks v. Delaplaine, 1 Md. Ch. 351, 353; Manly v. State, 7 Md. 135, 146; Alex. Ch. Pr. 9-12; where there was a conflict of jurisdiction, the general rule was that the court which first acquired jurisdiction should retain it for the purpose of giving full relief; Winn v. Albert, 2 Md. Ch. 42, 54-551 Albert v. Winn, 7 G. 446, 482-486; Brooks v. Delaplaine, 1 Md. Ch. 351, 354; Dunriock v. Dun- nock, 3 Md. Ch. 140, 150. §2-3 The coubts. * judges thereof in their respective circuits should have and ex- ercise all the power, authority and jurisdiction of the then court of chancery. 2 The constitution of 1864 conferred upon the circuit courts all the powers which the then circuit courts exercised, or which might thereafter be prescribed by law. 3 The constitution of 1867 contains similar provisions.* § 3. Equity courts in Baltimore city.— The superior court of Baltimore city was established by the constitution of 1851, with jurisdiction as a court of equity within the limits of the city. 1 This jurisdiction was continued by the constitu- tion of 1864, 2 but was taken away by the constitution of 2 Constitution, 1851, art. 4, sec. 8. The original county courts ceased to exist after the adoption of the constitution; Tucker v. State, 11 Md. 322, 329-331; McCabe v. Ward, 18 Md. 505, 509. In Slymer v. State, 62 Md. 237, 242-243, it is said that the circuit courts for the several counties may be properly described either as "of the county" or "for the county." See State v. Boyle, 25 Md. 509, 519-520, as to writs of error in criminal cases, from the equity courts, after the court of chancery was abolished. Compare Manly v. State, 7 Md. 135, 145-146; Davis v. State, 7 Md. 151, 163. Constitution, 1864, art. 4, sec. 25. Constitution, 1867, art. 4, sec. 20. By equity rule 1; code, art. 16, sec. 117; it is provided that the sev- eral regular terms of the equity courts for the return of process and other practical purposes shall be of two months' duration, and shall commence on the first Monday of January, of March, of May, of July, of September and of November of each year; amended by the act of 1890, ch. 424, by the addition of the words "and in Baltimore city shall commence on the second Monday of January, of March, of May, of July, of September and of November of each year." As to terms of court, see Hatton v. Weems, 12 G. & J. 83, 104; Nowland v. Glenn, 2 Md. Ch. 368, 369; Townshend v. Chew, 31 Md. 247, 249-250. See also rule 1 of the equity courts of Baltimore city. 1 Constitution, 1851, art.' 4, sec. 11; under the authority of the con- stitution the act of 1853, ch. 123, was passed, directing the removal of cases from the court of chancery to the superior court; Brown v. Gilmor, 8 Md. 322, 326-327; compare Manly v. State, 7 Md. 135, 145- 146; Davis v. State, 7 Md. 151, 163-164. From 1853, (act 1853, ch. 122,) to 1867, (constitution, 1864, art. 4, sec. 33, and constitution 1867, art. 4, sees. 28, 29,) the superior court and circuit court of Baltimore city had concurrent equity jurisdic- tion; see Ridgely v. Ridgely, 79 Md. 298, 303-304, as to the jurisdic- tion of the superior court of Baltimore city to annul marriages. Constitution, 1864, art. 4, sec. 33. 5 The courts. §3 1867 ; s which vested the then circuit court of Balti- more city with exclusive jurisdiction in equity. 4 The legislature was authorized by the constitution of 1851 to provide another court for Baltimore city, to have such juris- diction and powers as might be prescribed by law. 5 Under this authority, the legislature established the circuit court of Balti- more city, and conferred upon it concurrent jurisdiction with the superior court of Baltimore city in all cases in equity, and in certain- other cases, 6 and provided for the removal of causes, upon the application of a party, from the superior court as a court of equity to the circuit court. 7 The constitution of 1864 defined the jurisdiction of the court, 8 as did also the con- stitution of 1867, the latter declaring that the court should have exclusive jurisdiction in equity within the limits of the city and all such jurisdiction as the then circuit court of Baltimore city had; but no jurisdiction in applications for the writ of habeas corpus in criminal cases. 9 Under the authority con- ferred by the constitution, 10 the legislature, in 1888, established circuit court number two of Baltimore city, its powers and jurisdiction being concurrent with those then held and exer- cised by the circuit court of Baltimore city. 11 "Except that all cases depending in the superior court at the adop- tion of the constitution should be proceeded in and prosecuted to final decree in that court; constitution, art. 4, sec. 36; Orrick v. Boehm, 49 Md. 72, 97. Compare Greer v. Baughman, 13 Md. 257, 278. 4 Constitution, 1867, art. 4, sees. 28, 29; Orrick v. Boehm, 49 Md. 72, 97-98. 'Constitution, 1851, art. 4, sec. 12. 'Act 1853, ch. 122; "and generally such as have heretofore been conferred on the chancellor of this State so far as regards the fifth judicial circuit" (the city of Baltimore); code of i860, art. 29, sees. 55-58. Barth v. Rosenfeld, 36 Md. 604, 612-613. 7 Apt 1853, ch. 391. Constitution, 1864, art. 4, sec. 35. "Constitution, 1867, art. 4, sec. 29; Barth v. Rosenfeld, 36 Md. 604, €12. In Barth v. Rosenfeld, 36 Md. 604, 617, it was said that the juris- diction of the circuit court of Baltimore city is co-extensive with the limits of the city, and unless restrained by law the court may assemble wherever its convenience dictates. "Constitution, 1867, art. 4, sec. to. See also Capron v. Devries, 83 Md. 220, 224-225. "Act 1888, ch. 194; code of public local laws, art. 4, sees. 176-178. §4: The courts. 6 § 4. Statutory jurisdiction as to lands, persons and amount. —The code provides that whenever lands He partly in one county and partly in another, or partly in a county and part- ly in the city of Baltimore, that court shall have jurisdiction in which proceedings shall have been first commenced; provided, that all proceedings for any partition of real estate, to fore- close mortgages on land, or to sell lands under a mortgage, or to enforce any charge or lien on the same, shall be instituted in the court of the county or the city of Baltimore where such lands lie; or if the lands lie partly in one county and partly in another, or partly in one county and partly in the city of Bal- timore, then such proceedings may be commenced in >either county or in the city of Baltimore. 1 Where a sale or partition is had in any county where part only of the land lies, provis- ions are made requiring the filing and recording of certain of the proceedings, for sale or partition in the clerk's office of the court of the county or city of Baltimore where any other part of such lands lies. 2 Compliance with this provision of the statute is essential to the jurisdiction of the court over the sub- ject matter. The provisions are intended to keep persons ad- vised of proceedings taking place in a county where the lands do not lie, and which affect the lands, so that it may appear on the court docket of each county what is going on elsewhere about that property. The proper practice is to send a certified copy of each proceeding, as it is filed, to the court of the other 1 Code, art. 16, sec. 72. Only the first clause of the above section of the code was con- tained in the code of i860, art. 16, sec. 58. The other clauses of the section were added by the act of 1870, ch. 450, sec. 1, and by the code of 1888. See' Johnson v. Johnson, 52 Md. 668, 670-672, in which the act of 1870, ch. 450, was held to be not retroactive. The act does not affect sales made pursuant to powers contained in mortgages executed under the provisions of article 66 of the code; Walker v. Cockey, 38 Md. 75, 78. Similar provisions are made where lands of a deceased person are sold for the payment of his debts, or where lands are mortgaged; code, art. 16, sec. 74; see Johnson v. Johnson, 52 Md. 668, 670-672. Special provisions are made in suits for specific performance; code, art. 16, sec. 76; see post, "specific performance." 2 Code, art. 16, sec. 72. This provision originated in the act of 1868, ch. 348, and was amended by the act of 1870, ch. 450, sec. 1. Similar provisions are made with respect to sales of land of a 7 The courts. §4 county. 3 Whenever persons proper to be made defendants re- side, some in one county and some in another, or some in a county and some in the city of Baltimore, that court shall have jurisdiction in which proceedings shall have first commenced. When the defendants, or any of them, reside in a different county from that in which the land lies which is to be affected by a suit, the circuit court for the county (or Baltimore city,) where the land or any part thereof lies, shall alone have juris- diction. 4 Where defendants reside in different counties or in a county and the city of Baltimore, the court, where any one of the defendants resides, shall have jurisdiction, and the bill or other proceedings may be filed or had in such court." In di- vorce cases the code provides that any person desiring a di- vorce shall file his or her bill in the court either where the party plaintiff or defendant resides; or if the party against whom the bill is filed be a non-resident, then such bill may be filed in the court where the plaintiff resides. 6 It is provided by statute that the equity courts shall not hear, try, determine or give re- lief in any cause, matter or thing wherein the original debt or damages do not amount to twenty dollars, 7 which is held to mean exclusive of costs. 5 This does not, however, apply to a bill in equity to enforce a mechanics' lien claim. 9 . deceased person for the payment of his debts, or where lands are mort- gaged; code, art. 16, sec 74. 3 Murguiondo v. Hoover, 72 Md. 9, 13-21. 4 Code, art. 16, sec. 72; process may be sent to the counties or county wherein the defendants respectively reside, to be served by the sheriff of such county or counties upon the defendants named therein, and re- turnable as directed in the summons. The first clause in the text was in the code of i860, art. 16, sec. 58; the second clause appeared in the code of 1888. 5 Code, art. 16, sec. 73. Code^ art. 16, sec. 75, provides that "where all the defendants are non-residents the bill shall be filed in the court of the county or city where the property to be affected by such bill, or some part thereof, lies, or shall be at the time the suit is instituted." Compare Keyser v. Rice, 47 Md. 203, 21 r. *Code, art. 16, sec. 35. 7 Code, art. 16. sec. 91; Pentz v. Citizens Co., 35 Md. 73, 81; Rey- nolds v. Howard; 3 Md. Ch. 331, 333; compare Bellona Company's case, 3 Bl. 442, 446-447- "Phelps, Jur. Eq. sec. 19; Barroll, Md. Ch. Pr. 2. "Watts v. Whittington, 48 Md. 353, 357; because code, art. 63, sec. §5-0 The courts. 8 §5. The judges as chancellors.— It is provided that the judges of the several judicial circuits and the judge of the circuit court of Baltimore city shall each in his respective cir- cuit have and exercise all the power, authority and jurisdiction which the court of chancery formerly exercised, except in so far as modified by the code. 1 Each judge may grant injunc- tions or pass orders or decrees in equity at any place in his cir- cuit, to take effect in any part, of his circuit. 2 The judges are required to decide all cases within two months after argument or submission, 3 and, except in Baltimore city, are required to file their opinions in respect of any final decree or decretal order whenever the same shall have passed upon argument, oral or in writing. 4 The equity courts are deemed to be always open for the transaction of business therein. 6 § 6. Clerks of court. — The constitution provides for the election or appointment of clerks of courts in the several coun- ties 1 and in Baltimore city; 2 it also specifies their compensa- tion, 3 and authorizes them to appoint deputies. 4 The legisla- ture was directed to provide a simple and uniform system of charges in their offices. 5 The code contains detailed provisions 14, title "mechanics lien," provides that any person furnishing work, &c, shall be entitled to the lien, "without regard to the amount of his claim;" and by sec. 24 the proceedings to recover the lien may be by bill in equity. 'Code, art. 16, sec. 70; act of 1852, ch. 16, sec. 1. 2 Code, art. 16, sec. 71. 'Constitution, 1867, art. 4, sec. 23. 4 Code, art. 16, sec. 155; code of public local laws, art. 4, sec. 175. s Equity rule 1; code, art. 16, sec. 117. Compare the Chancellor's case, 1 Bl. 595, 677, 684, note; Towns- hend v. Duncan, 2 Bl. 45, 59; Duvall v. Waters, 1 Bl. 569, 576. [§6.]j 1 Constitution, art. 4, sees. 25-26. 3 Constitution, art. 4, sees. 37-38. 3 Constitution, art. 3, sec. 45. The salary of the trust clerk designated by the supremebench of Baltimore city, is provided for by the act of 1896, ch. 438. * Constitution, art. 4, sees, 26, 37; Harris v. Regester, 70 Md. 109, 123. 5 Constitution, art. 3, sec. 45; the charges are provided for by code, art, 36, sec. 12. 9 The courts. §6-7 as to the general duties and powers of the clerks of the various courts of the State. The principal provisions relating spe- cially to the clerks of the county courts as courts of equity, 3.nd to the clerks of the equity courts of Baltimore city, are as follows: 6 they have concurrent power with the judge to pass all orders nisi for the ratification of auditors' reports and ac- counts, but not final orders ; T to pass orders nisi for the ratifica- tion of sales made under decrees or orders of their courts, but not final orders; 8 and to pass and issue orders of publication to notify non-resident defendants. 9 They are particularly di- rected as to the manner of making up the transcript of the record of proceedings in appealed cases ; 10 and they may in cer- tain cases approve the securities in appeal 11 and other bonds. 12 § 7. Rules of court. — Independently of statute, every court of record has an inherent power to make rules for the transaction of its business; and by statute the judges of the courts both of law and equity may make such rules and orders from time to time for the well governing and regulating their respective courts and the officers and suitors thereof, and under such fines and forfeitures, as they think fit, not exceed- ing twenty dollars for any one offence. 1 Rules of court are 6 In general, it is provided by equity rule 2; code, art. 16, sec. 118; "The several clerks of said courts (the equity courts) shall receive and file all papers pertaining to said courts, respectively, and shall keep substantial dockets, and make all proper entries therein, of papers filed, and of the proceedings of the said courts as they occur, so that the docket entries shall always show, as near as possible, the real condition and progress of the proceedings." As to the right of examination of the papers in the care of clerks of courts, see Belt v. Prince George's, &c, Co., 73 Md. 289. As to the right of the clerk to act by deputy, see Harris v. Reges- ter, 70 Md. 109, 123-124. 7 Code, art. 17, sec. 28. See post, sec. 544. 8 Code, art. 17, sec. 29. (Under the direction of the supreme bench of Baltimore city, orders nisi upon reports of private sales may only be signed by the judge. — Brewer.) See also post, sec. 497, note- 9 61, and Biddinger v. Wiland, 67 Md. 359, 363. , Formerly when an infant was sued for a sale of his real estate, the parol was allowed to demur until the infant attained his majority; whereby the prosecution of the suit to a final decree was suspended until the infant's arrival at full age; Watkins v. Worthington, 2 Bl. 509, 519-520; Hammond v. Hammond, 2 Bl. 306, 330-336, 344, 352; Campbell's case, 2 Bl. 209, 224, 225; Tessier v. Wyse, 3 Bl. 28, 49, 51; Tise v. Shaw, 68 Md, 1, 7; Daniell, Ch. Pr. 165; but there was no sim- ilar provision with respect to married women defendants; Watkins v. Worthington, 2 Bl. 509, 520. 19 Who may sue and be sued. §15 him. The guardian cannot be appointed until the infant has been brought into court as a party defendant by some proper pro- cess. 2 The power of appointing guardians ad litem is incident to all courts, both of law and equity. 3 A guardian ad litem will always be appointed by the court upon petition of the infant in his own name 4 or upon petition of the plaintiff or any other party concerned. And in appointing guardians ad litem no person shall be appointed who may have any interest what- ever involved in the suit adverse to the infant. 5 The appoint- ment is made upon a petition setting forth the fact of infancy and that the infant has been returned summoned, or that an order of publication has been duly published. 6 The pro- ceeding by way of commission to assign guardian has been 2 Schouler, Dom. Rel. sees. 451, 452; Field on Infants, sees. 163-166, 305-315; Daniell, Ch. Pr. 160-163. Equity rule 9; code, art. 16, sec. 124; provides that "upon return of process as served, or upon proof of due publication of the order of publication as against non-residents" the court shall appoint a guardian ad litem for the infant or non-sane defendants. It is not usual in Baltimore city to appoint a guardian until the expiration of the time for appearance allowed by the order of publication, although the terms of the rule are "upon proof of due publication;" compare Cal- well v. Boyer, 8 G. & J. 136, 149-150. 3 Davis v. Jacquin, 5 H. & J. ioo, 110; guardians of the person and guardians ad litem are essentially different in their creation and powers. *Bush v. Linthicum, 59 Md. 344, 356. 'Equity rule 9; code, art. 16, sec. 124. In Snowden v. Snowden, 1 Bl. 550, 553, it is said that if a guardian ad litem refuses to act, or dies, another may be appointed. 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 to ap- pear and answer. In Baltimore city, in the appointment of a guardian ad litem for an infant or lunatic, it is in many cases convenient to appoint the deputy clerk as such guardian; in such cases it is customary for the solicitor asking the appointment to allow the clerk four dollars out of the ap- pearance fee, for his services in acting as guardian and filing the an- swer. No fee is allowed the guardian ad litem or his solicitor for filing the answer, &c, except where the court appoints the solicitor under equity rule 9; code, art. 16, sec. 124. "Carey's Forms, No. 800, pp. 657, 658; it is here said that where the petition is filed under equity rule 9; code, art. 16, sec. 124; the petition §15-16 Who may sue and be sued. 20 superseded by the method provided by the equity rule. 7 The guardian ad litem being appointed for the purpose of answer- ing and defending the suit, it is his duty not only to answer the bill, but to make the best defence he can according to the circumstances for the benefit of his ward. 8 He is so far con- sidered a party to the suit as to have the right of appeal on behalf of the infant for the purpose of protecting the lattex's interests. 9 § 16. Suits against married women. —Subject to a few exceptions, a married woman cannot be sued in equity, with- out the joinder of her husband as a co-defendant. 1 The most usual exceptions are in cases where the wife is defendant in a suit brought by the husband, 2 and where, by statute, she may be sued as if unmarried. 3 should allege that the infant has no guardian within the jurisdiction of the court, and pray for the appointment of a guardian ad litem; where there is a guardian within the jurisdiction, the petition should allege this fact and pray for an order requiring such guardian to appear, an- swer and defend; compare Davis v. Jacquin, 5 H. & J. 100, no. 7 Biddinger v. Wiland, 67 Md. 359, 363; as to this proceeding, see Snowden v. Snowden, 1 Bl. 550, 553-555; code, i860, art. 18, sec. 29; Alex. Ch. Pr. 31-33. 8 Snowden v. Snowden, 1 Bl. 550, 552; Hammond v. Hammond, 2 Bl. 306, 350-351; see the remarks in this latter case; compare Hunter v. Hatton, 4 G. 115, 124; Kingsbury v. Buckner, 134 U. S. 650, 680; White v. Joyce, 158 U. S. 128, 146-149. In Biddinger v. Wiland, 67 Md. 359, 363, an agreement by a guar- dian ad litem to submit the case to the court without argument, the testimony taken before the infant's answer to have the same effect as if taken after the answer had been filed, was approved; compare the in- stances in Hammond v. Hammond, 2 Bl. 306, 351. 9 Thomas v. Levering, 73 Md. 451, 461-462; otherwise, not being themselves able or competent in contemplation of law to take any step in the cause, they would be compelled in the absence of a regularly appointed guardian to submit, however unjust or oppressive a judg- ment or decree might be. 1 Story, Eq. PI. sec. 71; Daniell, Ch. Pr. 178-189; Hubbard v. Bar- cus, 38 Md. 166, 174; compare code, art. 45, sec. 18, as to suits against a married woman for her antenuptial debts. 2 As in actions of divorce. 3 As in cases against a married woman trader under code, art. 45, sec. 7; and when sued upon her covenants in leases under code, art. 45, sees. 14-16. See Stewart and Carey on Husband and Wife, articles 60, 61, &c. 21 Who may sue and be sued. § 17-18 § 17. Suits against lunatics. — A lunatic answers as of course by his committee without any special order for the pur- pose, but if the committee has any interest in the controversy or if there is no committee, the court will appoint a disinterested person as guardian ad litem} The equity rule now makes sim- ilar provisions for the defence of lunatics as for infants, de- claring that the court shall either require the committee, if there be one within the jurisdiction of the court, to appear, answer and defend, or appoint a guardian ad litem to answer and defend. 2 §18. Suits by and against corporations. — The power to sue and be sued in its corporate name is incident to every corporation. 1 The name of the corporation should be ex- actly stated, 2 although it is provided by statute that it shall be sufficient to describe the corporation by the name or title by which it is commonly known or by or under which its busi- ness is transacted. 3 An error in the name of the corporation in a suit against it may, however, be waived by the corporation iHewitt's case, 3 Bl. 184; Post v. Mackall, 3 Bl. 486, 488; Watkins v. Worthington, 2 Bl. 509, 520, 521. As to the liability of a lunatic to be sued at law, see Stigers y. Brent, 50 Md. 214, 220; compare Royston v. Horner, 75 Md. 557, 567- 568. 2 Equity rule' 9; code, art. 16, sec. 124; the court may appoint a solicitor to appear and defend for the non-sane defendant; see ante, sec. 15, relating to infants. [§18.] iDaniell, Ch. Pr. 20-26, 143-148; McKim v. Odom, 3 Bl. 407, 419; see pages 420, 426, as to the State, as a corporation, appearing by the attorney general. 2 Much importance seems to have been attached to the exact name of corporations in Binney's case, 2 Bl. 99, 106, 107; Bosley v. Susque- hanna Canal, 3 Bl. 63, 64-65; Baltimore Co. v. First, &c, Church, 13 Md. 117, 125-126; Tartar v. Gibbs, 24 Md. 323, 336-337; President v. State, 1 Md. 502, 503, 504; Bank v. Orme, 3 G. 443, 444; compare also Marine Bank v. Biays, 4 H. & J. 338, 339, 3441 Hagerstown Co. v. Cree- ger, 5 H. & J. 122, 123-124; Coulter v. Trustees, 29 Md. 69, 75. 3 Code, art. 23, sec. 301; the language of the statute is "any joint stock company or association;' - stated in Powhatan Co. v. Potomac Co., 36 Md. 238, 244, in which the objection that the "Potomac Steam- boat Company" was not alleged to be a corporation, was answered by this statute; compare also code, art. 75, sec. 36, in regard to misnomer §18 Who may sue and be sued. 22 as a mere misnomer; or be corrected by amendment. 4 The bill of a corporation need not be under its corporate seal; that it is the bill of the corporation is sufficiently vouched for by the signature of the solicitor. 5 The corporation, whether plaintiff or defendant, can appear only by attorney; it cannot appear in propria persona? It is not necessary that a bill should exhibit proof of the fact of incorporation. 7 at law; W. U. Tel. Co. v. State, 82 Md. 293, 305-397; Scarlett v. Acad- emy, 46 Md. 132, 152. 4 Binney's case, 2 Bl. 99, 107. 6 George's Creek Co. v. Detmold, 1 Md. Ch. 371, 381-382; compare Bethel Church v. Carmack, 2 Md. Ch. 143, 145-146, in which a bill was filed by a corporation against the majority of the members com- posing it. In Whyte v. Betts Machine Co., 61 Md. 172, 180, it is said that if the authority from a corporation to institute or prosecute proceedings be questioned, then, before adjudication had, it would be necessary to establish the existence of such authority from the corporation. "Osborn v. U. S. Bank, 9 Wheat. 738, 829-831; compare McKim v. Odom, 3 Bl. 407, 420. 7 See Whyte v. Betts Machine Co., 61 Md. 172, 179. CHAPTER III. PARTIES. The general rule ; classification ; exceptions. §19. Difficulty of the subject. 20. The basis of the rule. 21. The rule stated. 22. Who should not be parties. 23. Classification. 24. Necessary and proper par- ties. The doctrine of representation 29. 30. 31. 32. 33- 34- 35- 41. 42. 43- 44- 45- 46. 47- 48. 49- 50. SI- 52. 25. Formal parties. 26. Reason of exceptions to the general rule. 27. Persons beyond the juris- diction. 28. Other exceptions. The doctrine stated. 36. Executors and administra- 37. tors. Trustee in insolvency. 38. Partition; life tenant and 39. remaindermen. 40. In case of sale. Legislation. The general rule as to trus- tees. Parties in various cases Railway mortgage trustees. Trustee for the benefit of creditors. The equity rule. Corporations. Plaintiffs and defendants representing others hav- ing similar interests. Executors and administra- tors. General rule as to trust es- tates. Suits between trustee and beneficiary. Suits between trustee and stranger. In cases of assignment; assignor. Assignee. Assignee pendente lite. Corporations. Senior incumbrancers; the general rule. When the debt is not due. When the debt is due or uncertain. Junior incumbrancers; the general rule. 53- 54- 55- 56. 57- 59- 60. 61. 62. 63- 64. 65. 66. 67. Are not necessary parties. Are proper parties. Vacating deed. Vacating decree. Creditors' bills; plaintiffs. Creditors' bills; defend- • ants. Joint obligations; surety- ship. Exception in case of in- solvency. The equity rule. Bill to foreclose; plaintiffs. Bill to foreclose; defend- ants. Specific performance. Partners. Tenants and lessees. In other cases. § 19 Parties. 24 Parties in the federal courts. 68. Limitations upon jurisdic- 71. Indispensable parties. tion. r 72. Legislation and equity 69. Formal parties. rule. 70. Necessary parties. Miscellaneous. 73. Non-joinder; apparent or 78. Intervention; trust cases. not on the face of the bill. 79. Intervention; stockhold- 74. Non-joinder; when made ers. by the answer or at the 80. Intervention; creditors, hearing. 81. Intervention; in other 75. Non-joinder; making the cases; method of inter- objection on appeal. vening. 76. Misjoinder. 82. Making new parties. 77. Intervention; definition 83. Who is a party. and nature. 84. Position on record. The general rule; classification; exceptions. §19. Difficulty of the subject.— It is said that upon no subject are the decisions of the courts more various and apparently conflicting than upon the subject as to who should be parties 1 to suits in equity. 2 It is impossible to state a rule applicable to all cases. The courts have used different Ian- , guage in defining the doctrines; and the text-books, as well as decided cases, show a great variety of exceptions. 3 Much of the difficulty and confusion may be due to the loose and indefinite use of technical terms.* 1 Under the term parties are included all those who are directly in- terested in the subject-matter and have a right to make defence or to control the proceedings and to appeal from the judgment. This right involves also the right to adduce testimony and to cross-ex- amine the witnesses on the other side; Cecil v. Cecil, 19 Md. 72, 79-80; C. & O. Co. v. County Comms., 57 Md. 201, 225. 2 Crook v. Brown, 11 Md. 158, 171; Walter v. Riehl, 38 Md. 211, 215. Compare Strike's case, 1 Bl. 57, 84; Worthington v. Lee, 2 Bl. 678, 680. In Hallett v. Hallett, 2 Paige, (N. Y.) 15, 18, it is said: "Who are necessary parties to a suit is frequently a question of difficulty; and it is impossible to reconcile all the various decisions on this sub- ject, either with established principles or with each other." 3 In Calvert on Parties, 5, it is said that the decisions upon the proper parties to the suit are very indefinite, since the judges, in giving their judgments, have aimed to lay down the rule with sufficient accuracy for the case before them without attempting to pronounce a general rule applicable to all cases. 4 See post, sees. 24, 70. 25 Parties. § 20 §20. The basis of the rule. — In determining who should be parties to a suit, courts of equity are guided by two leading principles. 1 The first Is fundamental and based upon natural justice, that no decree respecting the life, liberty or property of any person, shall be made, unless that person have due notice of the suit and opportunity to be heard. 2 The second is a principle based upon expediency, and is peculiar to courts of equity ; that is, that in order to prevent multiplicity of suits, and to do complete justice, and not by halves, the decree should embrace a settlement of all the rights of all the parties interested, so that the matter in controversy may be finally settled. 3 Calvert on Parties, i; Story, Eq. PI. sec. 72; Foster, Fed. Pr. sec. 42; Phelps, Jur. Eq. sec. 24. 2 Hawkins v. Chapman, 36 Md. 83, 98-99; Holthaus v. Nicholas, 41 Md. 241, 264; Glenn v. Clapp, 11 G. & J. 1, 6; Gregg v. Mayor, &c, 14 Md. 479, 506; Bowen v. Gent, 54 Md. 555, 570; Jenkins v. Whyte, 62 Md. 427, 435; Handy v. Waxter, 75 Md. 517, 523; Ulman v. Mayor, 72 Md. 587, 593; Taylor v. State, 73 Md. 208, 220; Loeber v. Schroeder, 76 Md. 347, 351; Cecil v. Cecil, 19 Md. 72, 79; Windsor v. McVeigh, 93 U. S. 274, 277, 278; Gregory v. Stetson, 133 U. S. 579, 586; Mallow v. Hinde, 12 Wheat. 193, 198; California v. Southern Pacific Co., 157 U. S. 229, 249. Compare Trustees v. Rother, 83 Md. 289, 295. Persons who are directly interested in a suit and have knowl- edge of its pendency, and who are entitled to appear and make defense, but refuse or neglect to do so, are concluded by the proceedings as effectually as if they were parties named on the record; see this prin- ciple applied or declared in Riley v. First Nat. Bk., 81 Md. 14, 27; Albert v. Hamilton, 76 Md. 304, 310-311; Parr v. State, 71 Md. 220, 235-236; C. & O. Co. v. Co. Comms., 57 Md. 201, 225; and compare Alexander v. Leakin, 72 Md. 199, 203. In Burch v. Scott, 1 Bl. 112, 120, it is said that a decree obtained without making those persons parties whose rights are affected by it, is as to them fraudulent and void; see also McClellan v. Kennedy, 3 Md. Ch. 234, 256; Griffith v. Frederick Co. Bank, 6 G. & J. 424, 442. A judgment or decree in rem binds all persons whether parties or otherwise as to the particular point or matter decided; Brown v. Smart, 69 Md. 320, 331; Cecil v. Cecil, 19 Md. 72, 80. 3 Calvert on Parties, 1; Pomeroy, Eq. Jur. sec. 114; Hawkins v. Chapman, 36 Md. 83, 99. It is the constant aim of courts of equity to do complete justice by settling the rights of al! persons interested in the' subject-matter of the suit, so that the performance of the decree may be perfectly safe to those who~are called upon to obey it, and also that future litigation may be prevented and a decree made which will bind all; Lucas v. §21 Parties. 26 §21. The rule stated. — The combination of these two principles 1 has resulted in the general rule that all persons should be made parties who are either legally or beneficially interested in the subject-matter and result of the suit. 2 All persons having an interest in the object of the suit ought to be McBlair, 12 G. & J. 1, 16; Crook v. Brown, 11 Md. 158, 170-171; Darne v. Catlett, 6 H. & J. 475, 483; Gregg v. Mayor, &c, 14 Md. 479, 506; Walter v. Riehl, 38 Md. 211, 215-216; Brian v. Thomas, 63 Md. 476, 483; Story, Eq. PI. sec. 72; Daniell, Ch. Pr. 190. In Story, Eq. PI. sees. 76, 76a, it ,is said in substance that the doctrine as to parties constitutes one of the most striking differences between the proceedings in courts of law, and the proceedings in courts of equity. The former generally require no more than that the persons directly and immediately interested in the subject-matter of the suit, and whose interests are of a strictly legal nature, should be parties; whereas in courts of equity all persons materially inter- ested in the subject-matter ought to be made' parties, that complete justice may be done and a multiplicity of suits prevented. See the instance in Oliver v. Palmer, 11 G. & J. 426, 449, and the remarks of the court; also Ridgely v. Iglehart, 6 G. & J. 49, 53; Evans v. Iglehart, 6 G. & J. 171, 204; Berry v. Pierson, 1 G. 234, 247; McKaig v. Piatt, 34 Md. 249, 260; Lynn v. Mount Savage Co., 34 Md. 603, 624. x In Story, Eq. PI. sec. 76, c, it is said that the general rule in relation to parties does not seem to be founded on any positive and uni- form principle. "It is a rule founded partly in artificial reasoning, partly in considerations of convenience, partly in the solicitude of courts of equity to suppress multifarious litigation, and partly in the dictate of natural justice, that the rights of persons ought not to be affected in any suit, without giving them an_ opportunity to defend them." However the rule may be stated, "we express but a general truth in the application of the doctrine, which is useful and valuable as a prac- tical guide, but is still open to exceptions, and qualifications, and limi- tations, the nature and extent and application of which are not and cannot independently of judicial decision be always clearly defined." 2 Cromwell v. Owings, 6 H. & J. 10, 14; Ridgely v. Iglehart, 6 G. & J- 49, S3; Darne v. Catlett, 6 II. & J. 475, 483; Watkins v. Worthing- ton, 2 Bl. 509, 523; Postal Co. v. Snowden, 68 Md. 118, 124; Cecil v. Cecil, 19 Md. 72, 79-80. All persons materially interested, either legally or beneficially, in the subject-matter of a suit are to be made parties to it, either as plaintiffs or defendants, so that there may be a complete decree; Story, Eq. PI. sec. 72; Beach, Eq. Pr. sec 54; Daniell, Ch. Pr. 190; Foster, Fed. Pr. sec. 42; California v. Southern Pacific Co.,' 157 U. S. 229, 251; Gregory v. Stetson, 133 U. S. 579, 586; Long v. Long, 62 Md. 33, 82, per Bryan, J. 27 Parties. § 21 made parties. 3 The rule as to parties is said to be founded upon convenience; it therefore may be made to yield when its rigid enforcement would be attended with difficulty and 3 Worthington v. Lee, 2 Bl. 678, 680. In Phelps, Jur. Eq. sec. 24, it is said: "The object of the rule is to do complete and not fractional justice, to make the performance of the decree safe to those compelled to obey it, and to prevent future litigation. To the extent that the rule is founded on natural justice, it is inflexible, and its violation in that respect is not a mere irregu- larity, but a jurisdictional defect. ' To the extent that the rule is founded upon policy, as distinguished from natural justice, it is the creature of courts of equity, is flexible in its application, and is con- trolled by important exceptions. Much must be left to the discretion of the court (subject, however, to appeal), in view of the character of the suit and its object, the nature of the interest in question and its extent, and other special circumstances of particular cases. In the exercise of this discretion, the court will require the plaintiff, if prac- ticable, to bring every person concerned in interest before it. But if the case be such as to admit of a sufficient decree as between the parties actually litigant, the circumstance that an interest exists in some other person whom the process of the court cannot reach, will not prevent a decree upon its merits. But such decree cannot, of course, bind the absent interest.'' The rule is sometimes stated as applying to all persons interested in the object or purpose of the suit; and again as to all persons inter- ested in the subject-matter of the suit. Story, Eq. PI. sec. 72, citing Calvert on Parties, p. 5, says: "It has been well observed that it is not all persons who have an interest in the subject-matter of the suit, but, in general, those only who have an interest in the object of the suit, who are ordinarily required to be made parties.'' But in sec. 76, b, it is said: "It has been suggested that it would be a more just exposi- tion of the general rule to declare that all persons interested in the object of the suit ought to be made parties. Undoubtedly this does furnish a safe and satisfactory guide in many cases of ordinary prac- tice; but it may admit of doubt whether it is universally true or whether it is not equally as open to criticism as the common formu- lary in which the rule is expressed;" and instances are given of cases not within the scope of the rule. In Adams Eq. 312, cited in Crook v. Brown, 11 Md. 158, 171, the answer to the question as to parties is referred to the character of the relief sought, and all persons interested in the relief are considered necessary parties. In Crook v. Brown, 11 Md. 158, 171, it is said: "The question must depend in a great measure upon the object as well as the subject of the bill, the relief sought, the privity between the parties and the manner in .which their several interests may have arisen." Compare also Van Keuren v. McLaughlin, 21 N. J. Eq. 163, 165. § 21-22 Parties. 28 inconvenience.* The rule, however, as expressed, is of little value in deciding upon the necessity of making parties in a particular case. It is difficult to determine who come within the general description of "all persons having an interest in the object of the suit"; 5 and it is impossible to state a general rule applicable to all cases. It is doubted whether the general definition as above expressed would remove a single diffi- culty in examining the subject. §22. Who should not be parties.— The rule as to par- ties is also stated in the negative. Thus it is said that the rule does not extend to all persons who may be consequen- tially interested in, or affected by, the suit; 1 nor is a person properly a party to a suit, between whom and the plaintiff there is no proper privity or common interest, but his liability, if any, is to another person; 2 nor a person against whom the *In Hammond v. Hammond, 2 Bl. 306, 347, the chancellor, in speak- ing of parties to a creditors' suit, said: "All persons having an interest in the object of the suit ought to be made parties. But as this rule results from a consideration of the advantage which all persons must have in the entire settlement of the matter in litigation, it is founded on convenience; and is therefore made to yield in cases of necessity, or where it is attended with any inconvenience which may safely be avoided." In Watkins v. Worthington, 2 Bl. 509, 524, the chancellor said: "This general rule that all persons interested must be made parties, is, however, made to yield where necessary in the instance either of plaintiffs or defendants; since the rigid enforcement of it would lead to perpetual abatements, and in many cases amount to an absolute denial of justice." In Worthington v. Lee, 2 Bl. 678, 680, the chancellor said: "Much must always depend upon the peculiar nature of the case; and how it may terminate." Compare Hallett v. Hallett, 2 Paige, (N. Y.) 15, 18. 5 Worthington v. Lee, 2 Bl. 678, 680. 6 Crook v. Brown, 11 Md. 158, 171. ^Story, Eq. PI. sec. 226; thus in the case of a bill by a creditor for payment of his debt out of the assets of a deceased debtor, whether it is a suit brought for himself alone, or on behalf of all others; in the former case all the other creditors may be consequentially affected by the decree; in the latter all the legatees and distributees; but none of them are necessary parties. In Calvert on Parties, 4, the doctrine of consequential interest is not favored. 2 Story, Eq. PI. sec. 227; thus in the case of a bill by a creditor 29 Parties. § 22 plaintiff waives his claim; 3 nor a sheriff;'' nor a mere witness 5 or agent or attorney. 7 In suits against corporations, a prac- tice of making officers parties for purposes of discovery has prevailed, 8 but is unnecessary now under the present rules of against an administrator for payment of his debt out of the assets; to such a bill a debtor to the estate is not ordinarily a proper party, be- cause his liability is solely to the administrator. In McKim v. Odom, 3 Bl. 407, 410, it was held that a bank having no connection with the case, other than as a holder of certain funds in controversy, was a proper party. In several cases the State has been held not a necessary or proper party, it having no interest in the suit; thus in Hoye v. John- ston, 2 G. 291, 319, it was held that in a proceeding filed by the holder of an equitable title to vacant land under the State, against the pat- entee of the same land, to vacate the patent as fraudulently obtained the State need not be made a party, having no interest in the case. In Mayor, &c, v. Gill, 31 Md. 37s, 394, it was held that in a bill by a taxpayer of Baltimore city, to restrain the issue of a loan alleged to be illegal, the State was not a necessary party. In C. & O. Canal Co. v. Blair, 45 Md. 102, 109, it was held that in a bill by a bondholder to direct an issue of duplicate bonds of the canal company, in place of certain ones lost, the State, although a mort- gagee of the corporation, was not an indispensable party, having no direct interest in the matter; see also Ridgely v. Iglehart, 6 G. & J. 49, 52; Bayne v. State, 62 Md. 100, 109. 3 Foster, Fed. Pr. sec. 56; Story, Eq. PI. sees. 139, 228; but this cannot be done to the prejudice of others who are defendants to the suit; see Dart v. Palmer, 1 Barb. Ch. (N. Y.) 92, 98. In Delaware Co. v. Diebold, 133 U. S. 473, 486, it was said that persons made parties defendant who disclaim all interest in the suit and against whom no relief is sought, are unnecessary parties. 4 Jones v. Jones, 1 Bl. 443, 461. 'Story, Eq. PI. sees. 234-235. 6 Calvert on Parties, 229; Daniell, Ch. Pr. 296; Beach, Eq. Pr. sec. 60; Story, Eq. PI. sec. 231; White v. White, 5 G. 359, 379-380; Wal- ter v. Riehl, 38 Md. 211, 221; Davis v. Simpson, 5 H. & J. 147, 149; Binney's case, 2 Bl. 99, 108; Mayor v. Harwood, 32 Md. 471, 481-482. 'Chase v. Manhardt, 1 Bl. 333, 335; Dudley v. Hurst, 67 Md. 44, 53. 8 McKim v. Odom, 3 Bl. 407, 420-421; Fulton Bank v. Sharon Canal, 1 Paige, (N. Y.) 219, 220; Harness v. Chesapeake Co., 1 Md. Ch. 248, 262. See also Story, Eq. PI. sec. 23s; Calvert on Parties, 79, &c; Foster, Fed. Pr. sec. 43; Beach, Eq. Pr. sec 61; Daniell, Ch. Pr. 296. Compare Reddington v. Lanahan, 59 Md. 429, 440; Binney's case, 2 Bl. 99, 108. § 22-23 Parties. 30 evidence. 9 The rule is summarized in the statement that no person ought to be made a party to a suit who has not an in- terest in the object of it, and against whom no relief can be granted. 10 §23. Classification. — The subject of the classification of parties falls into two divisions: first, as to the nature of the relation to a cause held by parties thereto; and, second, as to the necessity or propriety of making certain persons parties in particular suits. As to the nature of the relation to a cause held by the parties thereto, it is observed that parties may be either real or quasi parties. 1 . Real parties are in turn subdivided into actual parties and constructive parties. Actual parties are those who are properly summoned in a cause, or who volun- tarily appear thereto. Constructive parties are those who are brought into court constructively by publication. 2 "Quasi 9 The practice of joining as defendants other persons than the real parties in interest, for the purpose of discovery and costs seems to be . now limited to cases of fraud, and to persons who are strictly agents, including in that term solicitors and attorneys, or who are arbitrators; Story, Eq. PI. sec. 233, note c; to make solicitors or others parties to an action without seeking any relief against them except payment of costs or discovery, is vexatious; Burstall v. Beyfus, 26 Ch. D. 35, 41. Compare Chase v. Manhardt, 1 Bl. 333, 335. It has been the practice in the federal courts ever since patent litigation commenced, when a corporation is charged with infringe- ment, to join the chief executive officer of the corporation as a defend- ant; that is, charging the officer in general terms with the infringe- ment. The reason is that an injunction or other order of the court is much more apt to secure obedience if directed to an individual officer by name, than if it ran only against the agents and officers of the cor- poration by that general description; Beach, Eq. Pr. sec. 61. 10 Calvert on Parties, 77; Story, Eq. PI. sec. 231; Kerr v. Watts, 6 Wheat. 550, 559; Crook v. Brown, 11 Md. 158, 172; Wright v. Santa Clara Co., 12 Md. 443, 449; Hoye v. Johnston, 2 G. 291, 319; Wil- liams v. Savage Mnfg. Co., 1 Md. Ch. 306, 320; see Hodges v. Planters' Bk., 7 G. & J. 306, 309-310; Fitzhugh v. McPherson, 9 G. & J- Si, 74-75; Jones v. Slubey, 5 H. & J. 372, 383; compare Owens v. Crow, 62 Md. 491, 495-496; Mayor, &c, v. Ketchum, 57 Md. 23, 30; Maddox v. White, 4 Md. 72, 79. 1 This section is taken in substance from Phelps, Jur. Eq. sees. 29, 30, which see in full. Publication embraces two classes of cases: one where jurisdiction in rem is acquired over property in the State as against non-residents ■ 31 Parties. § 23-24 parties, or parties by representation, are interested persons not named as parties, being neither served with process nor warned by publication, but deemed to be sufficiently repre- sented for certain purposes of the suit by real parties holding special relations to them." 3 The second division, relating to the necessity or propriety of making certain parties in particular suits, embraces the rules which determine whether or not a suit is properly brought so as to be free from objection by the other parties thereto, and whether the decree passed therein is valid and binding against all attack from whatever source. 4 §24. Necessary and proper parties. — Almost all of the decisions upon the subject of parties have been addressed to the inquiry whether or not in the particular case before the court, certain persons were or were not so related to the sub- ject-matter or object of the suit as to render their presence as parties necessary or proper. In the exigencies of a suit, the questions generally are, who must be made parties and who may be made parties. It is natural therefore that parties should be divided into necessary parties and proper parties. There is also another class, known as formal or nominal and, second, where statutory jurisdiction in rem over the marriage status is obtained; Phelps, Jur. Eq. sec. 29; see post, sees. 119-120. 3 Phelps, Jur. Eq. sec. 30. *In 'Phelps, Jur. Eq. sec. 25, it is said that the element of "conveni- ence, discretion and flexibility accounts for the doubt and difficulty so often experienced in the practical application of the general rule as to parties. Notwithstanding the admitted difficulty, the correct application of the rule is often of vital importance, not only to the immediate suitors, but to those who come after them as purchasers or incumbrancers. Very few properties are offered for sale or mort- gage that have not, at some time or other, been sold under the de- cree of a court of equity. As a sale under such a decree passes only the title of the parties to the cause, and to such sales, although judicial, the rule caveat emptor in general applies, the question as to whether all the necessary parties have been properly made is a vital one to a purchaser and his assigns. Even the running of the statute of limita- tions for their protection may be prevented by the intervention of a protracted life-estate, and cases may be found where they have been dispossessed by remaindermen born after the sale was made." § 24 Parties. 32 parties. 1 Necessary parties are those without whom no de- cree can be effectively made determining the principal issues. 2 Proper parties are those without whom a substantial decree may be made, but not a decree which shall completely settle all questions and adjust all rights involved in the litigation. Or, more briefly: necessary parties are those without whom no decree can be rendered. Proper parties are those whose presence renders the decree more effectual. 3 Some confu- !See post, sec. 25. 2 Phelps, Jur. Eq. sec. 38;' citing Pomeroy, Rem. sees. 329, 330: "To illustrate: in a foreclosure suit, the mortgagor is a necessary party, simply because no sale can be made behind his back, and other in- cumbrancers are not, because the sale can be made subject to their outstanding liens. But if the validity or extent of their liens be ques- tioned, or if for any reason the sale should not be of the equity of redemption alone, but of the unencumbered title, then all incum- brancers are proper parties; that is they are not necessary to a sale per se, although necessary to an effectual and satisfactory sale. It is possible, although it may not be convenient, for the judicial machinery to be put in motion without them. It is not even possible without the mortgagor, or his heirs, representatives or assigns. Story, Eq. PI. sec. 193." See post, sees. 49-51. In Bailey v. Inglee, 2 Paige, (N. Y.) 278, 279, it is said: "Per- sons are necessary parties when no decree can be made respecting the subject-matter of litigation until they are before the court, either as complainants or defendants; or where the defendants already before the court have such an interest in having them made parties as to authorize those defendants to object to proceeding without such par- ties;" approved in Penna. R. Co. v. Ryerson, 36 N. J. Eq. us, 116, and Wilkinson v. Dodd, 40 N. J. Eq. p 123, 130. 3 Pomeroy, Rem. sec. 330; Phelps, Jur. Eq. sec/38. In Taylor v. Webb, 54 Miss. 36, 42, it is said: "There is a wide dis- tinction between proper parties and necessary parties in equity pro- ceedings. The former term frequently embraces all who have any connection with the subject-matter of the litigation; the latter in- cludes only those whose interests are to be affected by the decree sought. No matter how intimate the connection of a party may be with the subject-matter in hand, he is never a necessary party where he is vested neither with the legal title nor with any beneficial interest which can be affected by the litigation. Under such circumstances the complainant is at liberty to join him or not at his pleasure; and whichever course he may take, the bill is subject neither to plea of misjoinder, nor to demurrer for non-joinder of parties." In Daniell, Ch. Pr. 246, it is said: "Where a person is in the 33 Parties. § 24-25 sion of thought has arisen from the use of the terms "neces- sary" and "proper" by the courts of various States* without clearly distinguishing the difference in the meanings; and also from the fact that State courts sometimes use the tech- nical terminology of the federal courts as synonymous with their own. 5 §25. Formal parties. — Formal or nominal parties are persons having perhaps a naked legal title but no equitable interest in the subject-matter or object of the suit. 1 Thus a husband against whom no relief is sought is a formal party in actual enjoyment of the subject-matter or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff's claims, he has an immediate interest in resisting the demand, and all persons who have such immediate in- terests are necessary parties to the suit." In Handy v. Waxter, 75 Md. 517, 523-524, in which property passing under a will was sold for purposes of partition, the court said that persons "who may even by possibility be entitled" are proper parties in order to give a clear title. 4 For parties in the federal courts, see post, sees. 68-72. 5 Thus in C. & O. Canal Co. v. Blair, 45 Md. 102, 109, it is said: "The State, therefore, has no such immediate and direct interest in the mat- ter as to require it to be made a party. The distinction 'between a proper and a necessary party may well be taken here, in view of the non- liability of the State to be sued. We only decide that the State is not an indispensable party.'' The terms "indispensable," "necessary" and "proper" parties are here used in reference to parties in a Maryland court; but "indispensable," (perhaps entirely a federal term), gen- erally means "necessary" as used in State courts; "necessary" in fed- eral courts means about the same as "proper" in the State courts. In Mattingly v. Grimes, 48 Md. 102, 107, the term "indispen- sable" is used; in Booth v. Robinson, 55 Md. 419, 439, and Wilkins v. Thorne, 60 Md. 253, 258, "essential;" in Hill v. Reifsnider, 39 Md. 429, 432, "necessary and proper;'' and other instances may be found. 1 Foster, Fed. Pr. sec. 51; Beach, Eq. Pr. sec. 55; post, sec. 69. In Chadbourne v. Coe, 10 U. S. App. 78, 83, following Wil- liams v. Bankhead, 19 Wall. 563, 574, it was said: "Formal parties are those who have no interest in the controversy between the immediate litigants, but have an interest in the subject-matter, which may be conveniently settled in the suit, and thereby prevent further litigation." §25-26 Parties. 34 a suit by his wife to enforce a marriage settlement; 2 simi- larly in a suit by the wife in reference to her separate estate; 3 a trustee with a legal title but having no interest in the contro- versy;'' the State in a' suit to vacate a patent claimed to be in fraud of the plaintiff's right. 5 The joinder of a mere nominal party will often be dispensed with if entire justice can be done without him. 6 Indeed it may be said that such persons may or may not be made parties, at the option of the plaintiff. 7 Although it is not error to join them, they may readily be omitted. 8 In the federal courts the, addition of merely for- mal parties does not oust the jurisdiction of the court, even if. they do not have the required citizenship, where it appears that the real controversy is between citizens of different States." §26. Reason of exceptions to the general rule.— - As the object of the general rule as to parties is to accomplish the purposes of justice between all the parties in interest, and as the rule is founded in some sort upon public convenience and policy, rather than upon positive principles of general juris- prudence, courts of equity will not suffer it to be so applied as to defeat its purpose. Hence in certain cases where cir- cumstances and the purposes of justice render the application of 2 Wormley v. Wormley, 8 Wheat, 421, 451. 3 Bridges v. McKenna, 14 Md. 258, 270. 4 As in Weaver v. Leiman, 52 Md. 708, 712. 5 Hoye v. Johnston, 2 G. 291, 319. Other instances may be found in Bacon v. Rives, 106 U. S. 99, 104; Walden v. Skinner, 101 U. S. 577, 589; Pacific Railroad v. Ketchum, 101 U. S. 289, 298-299. Compare Walter v. Riehl, 38 Md. 211, 221; Neale v. Hermanns, 65 Md. 474, 476; Grand, &c, Order, v. Merklin, 65 Md. 579, 583; Heck v. Vollmer, 29 Md. 507, 510; Mayor, &c. v. Har- wood, 32 Md. 471, 481; Bailey v. Inglee, 2 Paige, (N. Y.) 278, 279. "Hoye v. Johnston, 2 G. 291, 319; Bridges v. McKenna, 14 Md. 258, 270. 'Williams v. Bankhead, 19 Wall. 563, S7i ; Chadbourne v. Coe, 10 U. S. App. 78, 83. 'Phelps, Jur. Eq. sec. 37. »Walden v. Skinner, 101 U. S. 577, 589; Bacon v. Rives, 106 U. S. 99, 104. 35 Parties. § 26-27 the rule impracticable, exceptions are recognized, 1 from con- siderations of necessity or paramount convenience. 2 §27. Persons beyond the jurisdiction.— The prin- cipal exception is founded Upon the impracticability of making parties of persons who are beyond the jurisdiction of the court. To require such persons to be made parties would be equivalent to a dismissal of the suit, and amount to a denial of justice. Hence if it appears that the person who ought to be a party is out of the jurisdiction, that of itself con- stitutes a sufficient ground for dispensing with his being made a party, and the court will proceed to a decree without him; provided this can be done without manifest injustice to the absent person, and that an equitable and effectual decree can be made against those served with process. 1 This 1 Story, Eq. PI. sec. yy: in sec- 96, it is said: "The general rule being established for the convenient administration of justice, ought not to be adhered to in cases in which consistently with practical convenience it is incapable of application; for then it would destroy the very pur- pose for which it was established. The exceptions therefore turn upon the same principles upon which the rule is founded. They are re- solvable into this, either that the court must wholly deny the plaintiff the equitable relief to which he is entitled, or that the relief must be granted without making other persons parties. The latter is deemed the least evil, whenever the court can proceed to do justice between the parties before it, without disturbing the rights or injuring the interests of the absent parties." Compare Dame v. Catlett, 6 H. & J. 47s, 483; Watkins v. Worthington, 2 Bl. 5°9, 524- 2 McArthur v. Scott, 113 U. S. 340, 392. [§27.] iStory, Eq. PI. sec. 78; Daniell, Ch. Pr. 149-154; Foster, Fed. Pr. sec. 50; Palmer v. Stevens, 100 Mass. 461, 465-466. Thus the general rule is that all partners must be made parties to a bill against a co-partnership. But if one be a resident of a for- eign country, and the fact so appears, the court will ordinarily pro- ceed to make a decree against the partners who are within the jurisdic- tion; provided it can be done without injustice to the absent partner: Story, Eq. PL sec. 78. Under the former English practice the bill should allege that the person is out of the jurisdiction and should make him a party, and pray for process against him, so that he might be summoned if he came within the jurisdiction; Story, Eq. PI. sec. 44, note, and sec. 80; but § 27-28 Parties. 36 exception can only apply when the interests of such absent peiv sons, who are ordinarily necessary parties, will not be preju- diced by the decree, and when they are not indispensable to the just ascertainment of the merits of the case before the court. If the interests of the parties beyond the jurisdiction would be affected by the decree made in their absence, the suit is unavoidably defective. In some such cases the objec- tion will be fatal to the whole suit; in others the suit may pro- ceed as between those who are parties to it. 2 . §28. Other exceptions. — There are several other in- stances of exceptions to the general rule; thus where per- sons who would be necessary parties are unknown to the plain- tiff, and the fact is so charged in the bill, and the bill seeks a discovery of those persons for the purpose of bringing them before the court. 1 Where a deiendant made an agreement that a bill should be filed against him by certain persons as plaintiffs, he is estopped from afterwards objecting that a certain other person, who should be a party, is omitted. 2 Where the parties are exceedingly numerous and it would be it is sufficient if the fact of non-residence appear in the bill; Palmer v. Stevens, ioo Mass. 461, 466. 2 Palmer v. Stevens, 100 Mass. 461, 465-466; Story, Eq. PI. sec. 81; Foster, Fed. Pr. sec. 50; an instance is in Browne v. Blount, 2 Russ. & Myl. 83, where the person whose interests were sought to be af- fected by the decree was absent, and the case could not therefore proceed. In Worthington v. Lee, 61 Md. 530, 544, it was said that all of the persons within the reach of the court might be required to execute a renewal of the lease referred to in the case. "But as to such of the parties as may be beyond the jurisdiction and control of the court, the decree can only stand as an adjudication upon the subject- matter." iStory, Eq. PI. sec. 92; compare Campbell v. Poultney, 6 G. & J. 94, 102. It has been held that when the interest of an absent person is evidently very small, he may be dispensed with upon the principle de minimis, &c. ; Foster, Fed. Pr. sec. 57. 2 Cromwell v. Owings, 6 H. & J. 10, 16. An exception to the general rule is also said to exist in cases 37 Parties. §28-29 impracticable to join them without great delay and incon- venience, the court will not insist upon their being made parties. 3 The doctrine of representation. §29. The doctrine of representation stated. — The most important limitation upon the general rule as to parties is that expressed by the doctrine of representation. 1 This limitation is so thoroughly engrafted upon the general rule that it has been considered as consolidated with the rule itself. 2 Parties by representation are interested persons not named as parties in the suit, but deemed to be sufficiently repre- sented for certain purposes of the suit by parties thereto holding special relations to them. 3 The doctrine is said to be always founded upon the fact that persons to be affected by the decree have a common interest with those before the court, and the rights of absent persons would therefore be protected. 4 where an interest has been divided among a great number of persons for the purpose of preventing a plaintiff from obtaining relief; such persons may be omitted as parties from the bill, and the case may pro- ceed in their absence. Thus if a mortgagee makes conveyances in trust in order to entangle the title, and to render it difficult for the mortgagor to redeem, it will not be necessary to make all the per- sons who have interests in such trusts parties. The court defeats the fraud by refusing to enforce the general rule'; Calvert on Parties, 73; Story, Eq. PI. sec. 194; Foster, Fed. Pr. sec. 54. 3 Story, Eq. PI. sec. 94; compare sec. 40, post. iThe doctrine of representation is sometimes considered as an exception to the general rule; as in Foster, Fed. Pr. sec. 45; but it is scarcely an exception, since the absent person is in fact in court through his representative by whom his interest is protected or his claim enforced; Calvert on Parties, 20. 2 In Phelps, Jur. Eq. sec. 27, it is said: "It may tend to simplify a somewhat involved subject to so formulate the rule as to comprehend the exceptions. We will then have the following: All persons inter- ested in the object of the suit must be made parties, either actually, constructively or by representation. In this consolidated form the rule will be subject to but one important qualification, to be consid- ered under the head of multifariousness." 3 Phelps, Jur. Eq. sec. 30; Story, Eq. PI. sees. 142, &c. ; compare Lucas v. McBlair, 12 G. & J. 1, 14, 15; Cecil v. Cecil, 19 Md. 72, 79. 4 Bowen v. Gent, 54 Md. S55> 570-571; in this case there was no party to the case whose interests were not adverse to those of the person § 30 Parties. 38 §30. Executors and administrators.— The general rule is that the executor is the proper representative of all persons interested in the personal estate, and has the duty cast upon him by law of protecting it. 1 Executors may sue or be sued, as sufficiently representing the creditors, legatees and distributees, for whom they are trustees. They are the whose rights were sought to be bound by the representation; and the doctrine could not therefore apply. In Calvert on Parties, 19, it is said that the general rule as to parties is "founded upon the advantage which all persons interested will derive from the completeness of the decree and from the entire settlement of a matter in litigation; in other words it is founded upon convenience; and the same principle , guides our courts of equity in their mode of putting the rule into operation as they never allow it "to produce any inconvenience which can safely be avoided. With this view they have adopted the principle of representation." On page 64 it is said that representation is a mode in which for the sake of convenience the court allows the several interests to be pro- tected, with a view to make a complete decree. On page 74 it is said that in cases of representation there is a departure in form, but not in substance, from the usual rule as to parties. Compare McArthur v. Scott, 113 U. S. 340, 394-395- The cases in which the doctrine of representation is applied may, for convenience, be considered in the following classes: 1. Where parties represent persons not parties, in certain official capacities: as executors, administrators and trustees in insol- vency. 2. Where parties represent persons not parties by reason of their relation to them otherwise than in an official capacity; as a life- tenant representing a remainderman. 3. Where a trustee represents the beneficiaries; this is treated as a separate class, because of its importance, although strictly it is a division of class 1. 4. Where a corporation represents its stockholders. 5. Where parties are assumed to represent persons not parties by reason of community of interest; as (a) Plaintiffs assumed to represent others, as in creditors' bills, &c. ; or (6) Defendants assume to represent others, as in a suit against a numerous class. Compare Calvert on Parties, chapter I, sec. II. JGordon v. Small, 53 Md. 550, 556; compare Little Sisters, &c, v. Cushing, 62 Md. 416, 419; and see McArthur v. Scott, 113 U. S. 340. 396; Daniell, Ch. Pr. 224; Foster^ Fed. Pr. sec. 45; Schouler on Ex- ecutors, sec. 239. Any interest which persons named as executors, but who have 39 Parties. § 30-31 regular representatives of all those interested in the personal assets f and may in some cases, represent persons not in esse, as in a suit for the construction of a will. 3 Thus in a 'bill against an executor for an account of the estate it is not necessary or proper to join either a pecuniary or residuary legatee, or the next of kin, as parties, however much interested such persons may be in defeating the claim upon which the suit is founded, as the. executor represents them aM. 1 So also in a suit against an administrator who was said to be a debtor to the estate, where counter-claims were filed, the dis- tributees were not proper parties. 5 §31. Trustee in insolvency. — A trustee in insolvency represents all creditors of the insolvent, being the person ap- pointed by law for that purpose. 1 He represents for example not only the creditors existing at the time of a fraudulent con- veyance by a debtor, but also subsequent creditors having a renounced the office, may have in the case is represented by the exec- utor accepting the office; Peters v. Van Lear, 4 G. 249, 264. -Lucas v. McBlair, 12 G. & J. 1, 14-15 ; Drovers' Bank v. Hughes, 83 Md. 355, 361. In McArthur v. Scott, 113 U. S. 340, 396, it is said^ "The execu- tor is the principal and the necessary representative of the estate vested in him, and of all those interested in it; 'the executor,' said Lord Hardwicke, 'in all cases sustaining the person of the testator, to defend the estate for him, creditors and legatees;' " compare RoBards v. Lamb, 127 U. S. 58, 62. 3 McArthur v. Scott, 113 U. S. 340, 402. 4 Gordon v. Small, 53 Md. 550, 556; in this case a grantor executed a declaration of trust and delivered a promissory note to the trustee for the benefit of S. Upon the death of the grantor, S. filed a bill against the executor and the trustee to compel the collection of the note from the executor; and then amended the bill by making the legatees and next of kin of the deceased, parties. It was held that the executor alone was a proper party, and that the legatees and next of kin were improperly joined. t But the court did not decide as to the necessity of making the residuary legatee, under the circumstances, a party. 5 Whiting v. Whiting, 64 Md. 157, 160; the fact that the distributees were brought into the case by supplemental bill was immaterial. !Haugh v. Maulsby, 68 Md. 423, 427; Manning v. Carruthers, 83 Md. 1, 9; Diggs v. McCullough, 69 Md. 592, 609; compare Magruder v. Peter, 11 G. & J. 217, 246; Duvall v. Speed, 1 Md. Ch. 229, 235-236; § 31 Parties. 40 right to attack such a conveyance. 3 He is the representative of the rights and interests of all parties concerned in the es- tate. 3 In a proceeding by creditors to set aside fraudulent conveyances made by a debtor who has passed into insolvency, the trustee is a necessary party to the suit. If the trustee has died, a new trustee must be appointed in order to proceed with the suit. The theory of the insolvent system regards the trus- tee as the mutual representative of the rights and interests of both the debtor and his creditors, and any such proceeding by creditors, designed to affect those rights and interests, must embrace the trustee as a party to it.* Waters v. Dashiell, I Met. 455, 474; Daniell, Ch. Pr. 224-225; Foster, Fed. Pr. sec. 45. The trustee also represents the debtor; Jamison v. Chesnut, 8 Md. 34, 39; and the bankrupt, although interested in the residue, need not be rnade a party in a suit respecting the estate; Daniell, Ch. Pr. 224-225. 2 In Diggs v. McCullough, 69 Md. 592, 609, (followed in Manning v. Carruthers, 83 Md. 1, 9,) it was said: "The trustee in insolvency repre- sents all the creditors, and may undoubtedly sustain any proceeding which the creditors might prosecute to vacate fraudulent conveyances made by the insolvent;" and that if the creditors thus represented by the trustee became such after the execution of the impeached con- veyance, and if the conveyance was made with the intent to defraud those who should thereafter become creditors, there is no reason for holding that conveyances so made cannot be successfully attacked by the trustee. ■''Buckey v. Snouffer, 10 Md. 149, 160, per Mason, J. *Jamison v. Chesnut, 8 Md. 34.39; Haugh v. Maulsby, 68 Md. 423, 428; Swan v. Dent, 2 Md. Ch. hi, 114; Waters v. Dashiell, 1 Md. 455, 473-474- In Jamison v. Chesnut, 8 Md. 34, 39, which was a suit by cred- itors to set aside a conveyance as fraudulent, after the debtor made application for the benefit of the insolvent laws, and before the suit was instituted, the trustee in insolvency died, and no successor was appointed. In this state of the case, the bill was filed to vacate the conveyance. It was held that before this proceeding could be regu- larly instituted it was the duty of the creditors, dr some other inter- ested party, to have applied for the appointment of a new trustee, who should thereupon have been made a party to the equity pro- ceeding. While the trustee must be a party to the proceedings, yet it is not necessary that he should appear on the record as a plaintiff, al- though he may of course be such. When the trustee is made a' de- fendant in a suit where creditors are plaintiffs, he can as effectually 41 Parties. § 32-33 §32. Partition; life tenant and remaindermen. — In the case of a partition 1 of land, by division of the land itself, the tenant for life of each share represents the remaindermen whether in esse or not, as the interest of the latter is not other- wise affected than by being changed from an estate in common to an estate in severalty ; and a partition so made cannot after- ward be disturbed. 2 §33. In case of sale. — But in the absence of statutory provisions, the tenant for life does not represent remainder- men, born or unborn, except in the case of partition simply, as above stated. Thus, when a proceeding is for a sale of land held by one for life with remainder over to his children, the latter, if not parties to the suit, are not bound by the decree, maintain his rights as if he were a plaintiff; Haugh v. Maulsby, 68 Md. 423, 427-428. In Swan v. Dent, 2 Md. Ch. in, a bill was filed to set aside a deed fraudulently made by a grantor who afterwards applied for the benefit of the insolvent laws, and the trustee was made a defendant. The chancellor set the deed aside, and his decree was affirmed in Richards v. Swan, 7 G. 366. 1 See Story, Eq. PI. sees. 144-147; Daniell, Ch. Pr. 228; Calvert on Parties, 48-53, i8a-io8;""Foster, Fed. Pr. sec. 45; Freeman on Coten- ancy, &c, sec. 482. 2 Shreve v. Shreve, 43 Md. 382, 402; Downin v. Sprecher, 35 Md. 474, 481; McArthur v. Scott, 113 U. S. 340, 401. In Gaskell v. Gaskell, 6 Sim. 643, the head note is: "A tenant for life of an undivided share of an estate with remainders to his unborn sons in tail may file a bill for a partition and the decree will be binding on the sons when in esse." In McArthur v. Scott, 113 U. S. 340, 401, it is said: "In the case of a strict partition, by division of the land itself, it is sufficient to make the present owner, or, in some cases, the tenant for life of each share, a party, because the interest of those who come after him is not otherwise affected than by being changed from an estate in common to an estate in severalty. In the case of a partition by sale of the land, and a division or investment of the proceeds according to the interests in the several shares, the interests of all persons in the proceeds correspond to their respective interests in the land, and are secured by the decree of sale. But a decree for partition of either kind, which cuts oft" remaindermen, not then in esse, from having when they come into being any interests in either land or proceeds, does not bind them." § 33 Parties. 42 not being represented by the life-tenant. 1 A decree which cuts off remaindermen not then in esse, from having, when they come into being, any interest in either land or the proceeds 1 In Downin v. Sprecher, 35 Md. 474, a testator devised an un- divided interest in land to his "daughter during her life and after her decease to her male children, &c." At the death of the testator, the daughter had two sons living, and three others were subsequently born. ■ A bill was filed by the other devisees against the daughter, (the tenant for life,) and others, including the two sons then living, praying for a sale of the land, which was duly had under decree, and the property was conveyed to the purchaser. After the death of the life-tenant, her five sons brought ejectment against the purchaser. The question arose whether the decree of sale was binding upon the three sons not parties to the bill, and not in esse when it was filed, so as to divest them of title to the land. It was held that the tenant for life did not represent the remaindermen. On page 481 it is said: "No case has been cited and we have found none where it has been decided the tenant for life was a sufficient party to represent the estate, except in cases of partition simply, or where the object of the suit was to col- lect debts or enforce a charge or lien upon the land." On page 482: "It would be an unwarranted extension of the rule of representation to apply it to this case in order to affect the rights of parties not in being and not parties to this bill. Such application is justified by no ex- press adjudication, nor by the reasons upon which the doctrine was originally established." The court quoted at length from Calvert on Parties, in reference to tenants in tail, &c, but held that the rule therein stated was not applicable to this case. In Shreve v. Shreve, 43 Md. 382, the will of a testatrix contained a clause which the court construed as giving each child an estate for life in certain land, with remainder over to the children of such child. In a case for partition to which the children of the testatrix were par- ties, one of the children obtained by process of election and not by partition, possession of the whole estate and paid for the same in part; but the grandchildren, who were not born at the time of the suit, were, of course, not parties. In a bill to quiet title, brought by the child who had taken the estate by election, it was held that the inter- ests of the grandchildren were not represented in the case brought before they were born, and that their interests were not taken from them. If there had been a simple partition, each life-tenant would have sufficiently represented his children; but the process of election was different. As to election, see post, sec. 442. In Long v. Long, 62 Md. 33, a testator died in 1824, and devised real property to trustees, directing that his daughters should during their respective lives receive' the income of their shares and after their deaths their respective shares should be divided between their respec- tive children. In 1833 all the persons in interest then living became parties to a suit, in which a decree for the sale of the property was 43 Parties. § 33 thereof, is not binding upon them. 2 So also in a creditors' bill for the sale of the real estate of a deceased debtor, a re- passed, and a sale was made. Certain children of the daughters (the children being unborn at the time of the decree) never having received any of the proceeds of the sale, filed a bill in 1880 claiming their re- spective interests in the land. The question was whether these chil- dren were bound by the decree passed in 1833, they being then unborn. The court said, page 67: "It would seem to be clear that if some one of the real or substantial parties to the cause (in 1833) did not hold such relation to the property, and to these plaintiffs as contingent remainder- men, as made him a legal representative of the inheritance, so as to bind it by recovery against him, these plaintiffs were not represented in that proceeding, and are therefore not bound by the decree. * * * The children of the testator, holding equitable life estates in the shares that were devised to the grandchildren in remainder, were parties, but they did not certainly as devisees represent the inheri- tance; and the acting trustee, holding the legal estate in the free- hold only for the lives of the equitable life tenants, with no powers, in his character as trustee, to enable him to sell or convert the real estate into money, clearly could not legally represent those entitled in remainder to the inheritance, as the law then existed. * * * It is a settled principle that where a person is seized in fee of an estate which is liable to be defeated by a shifting use, conditional limitation, X3T executory devise, the inheritance is not represented in a court of equity by the person who has the fee thus liable to be defeated, except as against himself and those who take under him. Goodess v. Wil- liams, 2 Y. & Coll. N. R. 595. And the reason of that principle applies here in all its force. It follows, therefore, that the inheritance, the fee simple estate in remainder, as to the present claimants, was not represented by any competent party to that proceeding." But this only applies to the real estate, and not to any personal or leasehold estate, as to which the trustee was the sole representative; p. 68; quoted in Dunnington v. Evans, 79 Md. 83, 92; Drovers' Bank v. Hughes, 83 Md. 355, 361. See also Timanus v. Dugan, 46 Md. 402, 419; Dunnington v. Evans, 79 Md. 83, 92. 2 McArthur v. Scott, 113 U. S. 340, 401; in this case it is also said that in the case of an estate tail, Lord Redesdale held it to be suffi- cient in order to bind the contingent remaindermen, to bring before the court the first tenant in tail, and if no tenant in tail is in being, then the first person entitled to the inheritance; and if no such person, then the tenant for life. The reason is said to be that, "where all the parties are brought before the court that can be brought before it, and the court acts on the property according to the rights that appear, without fraud, its decision must, of necessity, be final and con- clusive. The necessity of the case being the only reason for this, it follows that where the successive estates are equitable, and supported § 33-35 Parties. ±i mainderman in esse must be made a party, not being repre- sented by the life-tenant or executor. 3 §34. legislation.— Provisions are now made by statute au- thorizing the sale or lease of property limited over to un- born remaindermen, and directing the investment of the pro- ceeds of sale or the limitation of the reversion and rent so as to enure to the benefit of those who would be entitled to the land sold or leased. 1 §35. The general rnle as to trustees. — If the powers and duties of a trustee are such as to constitute him the repre- sentative, of the beneficiaries, 1 the latter are not necessary par- by a legal estate devised in trust, the trustees also are necessary par- ties." The decisions of the Maryland court of appeals upon the repre- sentation of unborn remaindermen by the life tenant in partition suits by way of sale, are not in entire accord with the rulings elsewhere; see Freeman on Cotenancy, &c, sec. 482. 3 Bowen v. Gent, 54 Md. 55s, 570; it is said that the suits of credit- ors form no exception to the rule that requires all parties in interest who are in esse to be brought into the case. In Mc Arthur v. Scott, 113 U. S. 340, 401, it is said: "Another class of cases is that of creditors who are entitled to present pay- ment of their debts whoever may be the future owner of the estate. For instance, in a bill to enforce a debt charged upon real estate devised to one for life with contingent remainder to his unborn son, the exec- utor and the tenant for life are sufficient parties, because, as was said long ago by Lord Hardwicke, if there is no one in whom the estate of inheritance is vested it is impossible to say the creditors are to re- main unpaid and the trust not to be executed until a son is born." Compare Downin v. Sprecher, 35 Md. 474, 479, 481. [§34-] 1 Acts of 1862, ch. 156, and 1868, ch. 273; code, art. 16, sec. 198; as to the proceedings under this statute, see post, sees. 411-414. [§35-] 1 Kerrison v. Stewart, 93 U. S. 155, 160; in this case it is said: "It cannot be doubted that under some circumstances a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subjected to such obligations that those for whom he holds will be bound by what is done against him as well as by what is done by him. The difficulty lies in ascertaining whether he occupies such a position, not in determining its effects if he does. If he has been made such a representative, it is well settled that his beneficiaries are not neces- sary parties to a suit by him against a stranger to enforce the trust, 45 Parties. § 35-36 ties to an action by or against him in relation to the trust es- tate. Whether in a given case a trustee is such a representa- tive is to be determined from a consideration of the instru- ment by which, and the purposes for which, he was appointed. The question can usually be decided by considering whether the trustee has an unqualified power to sell and give receipts ; if he has, he represents the beneficiaries. 2 §36. Railway mortgage trustees. — The doctrine is frequently applied in proceedings relating to railway mort- gages, where a trustee holds the security for the benefit of bondholders. This principle is said to be not a new one de- veloped by the necessities of that class of cases, but an old one long in use under analogous circumstances. 1 In such or to one by a stranger to defeat it in whole or in part. In such cases the trustee is in court for and on behalf of the beneficiaries; and they, though not parties, are bound by the judgment, unless it is impeached for fraud or collusion between him and the adverse party." Compare McArthur v. Scott 113 U. S. 340, 396; Williams v. West, 2 Md. 174, 196; Bolgiano v. Cooke, 19 Md. 375, 396, as stated, also, in Downin v. Sprecher, 35 Md. 474, 482; Williams v. Williams, 63 Md. 371, 401; and see Story, Eq. PI. sec. 150; Johnson v. Robert- son, 31 Md. 476, 488. In Lucas v. McBlair, 12 G. & J. 1, 15, the following quotation is made from Story, Eq. PI. sec. 143: "Where real estate had been purchased by a joint fund raised by a subscription in shares of more than two hundred and fifty subscribers, and the property had been conveyed to certain persons as trustees for the subscribers, and after- wards a bill was brought against the trustees for the sale of the real es- tate, under a mortgage made in pursuance of the trust, it was held not necessary for the subscribers to be made parties to the bill; for the trustees, by the very nature and constitution of such a trust, must be held sufficiently to represent the interests of all the subscribers, and a different doctrine would be attended with intolerable hardship and inconvenience, as it might be impossible to make all the sub- scribers parties." 2 See post, sec. 38; Daniell, Ch. Pr. 221-223; Smith v. Gaines, 39 N. J. Eq. 545, 550. 1 Kerrison v. Stewart, 93 U. S. 155, 160. Thus, bondholders are bound by a release by the trustee of all errors committed concerning a decree, and releasing the right of appeal from the decree in an action of foreclosure; Elwell v. Fosdick, 134 U. S. 500, 513; so where a railway company and the trustee were parties to a suit in which the bonds and mortgages were annulled, § 36-38 Parties. 46 cases, whatever binds the trustee in any legal proceedings which he carries on to enforce the trust, binds the benefi- ciaries, although they are not actual parties to the suit; being represented by the trustee, they are bound by the decree so long as it stands unreversed. 2 §37. Trustee for benefit of creditors. — Similarly a trustee for the benefit of creditors who sells property free from the claims of creditors so far represents their rights as to en- able him to contest for their benefit the claim of a mortgagee to a preference in the distribution of the proceeds; and the creditors themselves are not necessary parties to a bill to en- join the trustee from selling the mortgaged property. 1 §38. The equity rule. — In order to cure the difficulties found to arise from the application of the general rule requir- ing trustees and beneficiariesto be parties, 1 an English chancery order of 1841 2 provided that trustees with certain powers should represent the beneficiaries of real estate held in trust in the same manner as executors and administrators represent the bene- ficiaries in suits concerning personal estates. This rule was followed by a similar one in the federal courts in 1842. 3 The principle was adopted in Maryland in 1883 by the equity rules, and was extended also to personal estate. The Maryland rule 4 provides that "in all suits concerning real or personal the bondholders were bound by the decree; Beals v. Illinois, &c. R. Co., 133 U. S. 290, 295; so where the trustee forecloses a mortgage, the bondholders are bound thereby; Richter v. Jerome, 123 U. S. 233, 246; and if the trustee himself be a bondholder individually, he is individually bound, since as trustee he represents himself; Cor- coran v. C. & O. Co., 94 U. S. 741, 745. 2 Richter v. Jerome, 123 U. S. 233, 246; Brown v. Chesapeake, &c, Co., 73 Md. 567, 581-582, per Alvey, C. J. See also Tome v. King, 64 Md. 166, 181; State v. Brown, 64 Md. 199, 207; Tyson v. Applegate, 40 N. J. Eq. 305, 311. [§37.] iSixth Bldg. Assn. v. Willson,4i Md. 506, 513; compare Cow- man v. Colquhoun, 60 Md. 127, 131. [§38-] ^ee post, sec. 42. 2 Orders in chancery of 1841, order 30; Daniell, Ch. Pr. 222, and note; Story, Eq. PI. sec. 150, note, and sec. 217; Hill on Trustees, 544. 3 U. S. eq. rule 49; Foster, Fed. Pr. sec. 45. 4 Equity rule 32; code, art. 16, sec. 160. 47 Parties. § 38-39 « estate, where the entire estate sought to be affected by the decree or order prayed for, is vested in trustees, under any deed, will or other instrument, with an immediate and un- qualified power of sale, coupled with the right to give receipts, such trustees snail represent the persons beneficially inter- ested under the trust, in the same manner and to the same ex- tent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested under the trust, parties to the suit; but any party interested may, upon his own application, be allowed to come in and be made a party to such proceeding, and the court or judge thereof may, upon consideration of the matter on the hearing, if it should be deemed proper, order such persons, or any of them, to be made parties." §39. Corporations. — In actions against corporations, when the court obtains jurisdiction over the corporation, every stockholder in his corporate capacity becomes thereby a party to the cause and is represented by the president and directors, who are intrusted with the management of the corporate in- terest of all the stockholders. The stockholders in their in- dividual capacities are not necessary parties to the proceeding. 1 Stockholders, however, do not represent the corporation. 2 The stockholder is bound by a decree of a court of equity a Glenn v. Williams, 6o Md. 93, 115-118; in this case a Virginia cor- poration became embarrassed by debts, and upon a creditors' bill ■ filed in that State against the corporation and certain of its officers, an account was taken of the debts due by the corporation and they were decreed to be paid; an assessment was made by the court upon the stockholders and the trustee was directed to collect the same by suit or otherwise. Suit was brought by the trustee against the de- fendant, a stockholder, and the latter urged that the decree was in- valid as against the stockholders, because they were not parties to the proceeding in their individual capacities and had no opportunity to defend against the decree. It .was held that in contemplation of law the stockholders were before the court in all the proceedings touch- ing the corporation of which they were members, and that the decree was conclusive as against them. To the same effect is Lycoming Fire Ins. Co. v. Langley, 62 Md. 196, 214. 2 Swan Co. v. Frank, 148 U. S. 603, 610. § 39-40 Parties. 48 against the corporation in enforcement of a corporate duty, although not a party as an individual, but only through repre- sentation by the company. 3 But in a contest between stock- holders of a corporation, some seeking to prevent certain ac- tion by the corporation as beyond the corporate powers, and others desiring to sustain it, the corporation cannot, it seems, be considered as representing any of such stockholders.* 40. Plaintiffs and defendants representing others having similar interests. — The doctrine of representa- tion is also applied in certain cases where plaintiffs may sue as representatives of a class, in behalf of themselves and all others similarly situated, and where defendants may be sued as representing others having similar interests. 1 With 'Hawkins v. Glenn, 131 U. S. 319, 329; in this case it is also said: "A stockholder is so far an integral part of the corporation that in view of the law he is privy to the proceeding touching the body of which he is a member; Sanger v. Upton, 91 U. S. 56, 58"; Glenn v. Liggett, 135 U. S. 533, 544. 4 In Gregg v. Mayor, &c, 14 Md. 479, 505, a stockholder sued a cor- poration to restrain payment of a dividend which had been declared. Other stockholders, not parties, petitioned to become parties defend- ant in order to defend the case and secure the dividend. It was said that the corporation did not represent the petitioners any more than it did the plaintiff. "The president and directors bind the members when acting within the charter powers; if they go beyond, the mem- bers may enjoin them, and the bill here is framed on the supposition that the dividends are not warranted by the charter. * * * It is not merely a controversy between these complainants and the company, but between the complainants and all stockholders claiming the divi- dends, the company being the holder of the common funds of all. As among the corporators, it does not represent all of them when they have opposite views of the company's powers." *In Story, Eq. PI. sec. 126, it is said that in these classes of cases all the parties stand, or are supposed to stand, in the same situation, and have one common right or one common interest, the operation and protection of which will be for the common benefit of all and cannot be to the injury of any. It is under such circumstances and with such objects that the bill is permitted to be filed by a few on behalf of themselves and all others, or against a few and yet to bind the rights and interests of the others. In Smith v. Williams, 116 Mass. 510, 512, the plaintiff sued on behalf of himself and of all other persons having like interests in a fund. The court said that "how far such persons should be made 49 Parties. § 40 respect to plaintiffs 2 the most usual cases are those by credi- tors on behalf of themselves and others, either in creditors' bills strictly so-called, 3 or in suits to set aside fraudulent con- veyances. Instances of other suits of this nature are those brought by certain members of an unincorporated associa- tion on behalf of all the members, 4 or by some shareholder of a corporation on behalf of all other shareholders B or by a taxpayer on behalf of all other taxpayers. 11 In re- gard to defendants, when they are very numerous and parties to the suit depends largely upon the discretion of the court, considering on the one hand the difficulty and expense of joining them, and on the other the paramount importance of having such a repre- sentative of the interests concerned as may enable the question at issue to be fairly tried." In such suits the bill must state that it is filed on behalf of the plaintiffs and all others similarly situated, and that the latter are numer- ous and many unknown; Story, Eq. PI. sec. 116; but if defective in this respect the bill may be amended at the hearing; Richmond v. Irons, 121 U. S. 27, 51. Where a suit is brought by or against a few indi- viduals as representing a numerous class, that fact must be alleged of record, so as to present to the court the question whether sufficient parties are before it to properly represent the rights of all; McAr- thur v. Scott, 113 U. S. 340, 395. Compare Pomeroy, Rem. sees. 388-401. 2 Beach, Eq. Pr. sees. 63-64; Foster, Fed. Pr. sees. 46-47, 49; Dan- iell, Ch. Pr. 236-245; Calvert on Parties, 28-48. 3 See post, sees. 373-392. In Railroad Co. v. Orr, 18 Wall. 471, 474-475, it was held that one bondholder could not sue on behalf of others when there were only fifteen in all and the mortgage was made directly to them. 4 Story, Eq. PI. sees. 107-108; Birmingham v. Gallagher, 112 Mass. 190, 192; Smith v. Swormstedt, 16 How. 288, 302-303. Compare Mears v. Moulton, 30 Md. 142, 145-146, as to suits by members of unincorporated associations. 3 Story, Eq. PI. sees. 109-113; compare Gregg v. Mayor, &c, 14 Md. 479, 505- "As in Mayor, &c, v. Keyser, 72 Md. 106, 108; Baltimore, &c, R. Co. v. Pumphrey , 74 Md. 86, 103-104; Peter v. Prettyman, 62 Md. 566, 568. See also Kelly v. Mayor, &c, 53 Md. 134, 140-141. It is provided by U. S. equity rule 48, as follows: "Where the parties on either side are very numerous, and cannot without manifest inconvenience and oppressive delays in the suit, be all brought be- fore it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and 4 §40-41 Parties. ' 50 are jointly liable, suit may in many instances be brought against some as representing all of the class. In such cases, the bill must state the fact that the defendants are numerous, and that they are sued as representatives. 7 The inconvenience of bringing a large number of persons before the court is the basis of the rule. If the defendants are not numerous, they must all be sued. 8 It must appear that the defendants are so numerous that it is difficult to make them all parties, and that a sufficient number are made to ensure a trial of the rights of all. 9 Thus, the officers of a voluntary association having a large number of members may be sued as representatives of the association. 10 In suits of this nature, it seems, in some cases, that a decree against the representatives of the class will to a certain extent, be binding against persons not actual parties to the suit, the court taking care that sufficient persons are before it, honestly, fairly and fully to ascertain and try the right in contest. 11 But it is also held that the decree shall be without prejudice to the rights and claims of all the absent parties. 12 Parties in various cases. §41. Executors and administrators. — In general it is said that whenever the personal assets of a deceased person may be affected by the decree, the executor or administrator should be a party. 1 No decree can be made affecting the the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties." 'Foster, Fed. Pr. sees. 48, 49; Beach, Eq. Pr. sees. 63, 64; Daniell, Ch. Pr. 272-277; Mc Arthur v. Scott, 113 U. S. 340, 395. See the instances in Hills v. Putnam, 152 Mass. 123, 125; Com- missioners v. Gellatly, 3 Ch. D. 610, 615; Smith v. Swormstedt, 16 How. 288, 302-303; Ay res v. Carver, 17 How. 591, 593. 8 Story, Eq. PI. sees. 94, 96; see the instance in Smith v. Williams, 116 Mass. 510, 512. 9 Calvert on Parties, 45. "Van Houten v. Pine, 36 N. J. Eq. 133, 138; McFadden v. Murphy, 149 Mass. 341, 342. "Story, Eq. PI. sec. 120. 12 McArthur v. Scott, 113 U. S. 340, 395; U. S. equity rule 48. 1 Story, Eq. PI. sec. 170. If the executor renounces his office he need not be made a 51 Parties. § 41 estate until the legal personal representative is made a party. 2 Thus in all cases respecting the trusts of a will affecting the personalty, the executor must be a party; so also in a bill for the construction of a will; no suit to set aside a will is binding upon those not parties to it unless the executor is a party. 3 party; Peters v. Van Lear, 4 G. 249, 264; Daniell, Ch. Pr. 226, 227, note. No suit for the administration of an estate can proceed to final decree even where the executor is out of the jurisdiction, or no execu- tor has been appointed, until an appointment of a personal repre- sentative has been made within the jurisdiction; Mc Arthur v. Scott, 113 U. S. 340, 403; Story, Eq. PI. sec. 179. An executor de son tort is not a sufficient representative of the estate; Roswell v. Morris, L. R. 17 Eq. 20, 22-23. 2 Jones v. Jones, i Bl. 443, 460; in this case a creditors' bill was filed to obtain a distribution of a fund in a sheriff's hands arising from an execution sale of the real estate of a deceased debtor. The admin- istrator was not a party, and in his absence the case could not pro- ceed to a decree. In Baltimore Retort Co. v. Mali, 65 Md. 93, 94, it was held that the administrator of a decedent is a necessary party to a suit to com- pel the transfer of stock standing upon the books of a corporation in the name of the decedent in order to render the decree effective to bind the estate of the deceased. In Foos v. Scarf, 55 Md. 301, 312, the property of the decedent was leasehold. In a suit as to the ownership of the same it was held that if any interest reverted to the estate, the administrator was a necessary party before a decree for sale could be passed. In Ridgely v. Bond, 18 Md. 433, 449-450, it was held that where a decree sought to be revived directed land to be sold for distribution among the parties entitled, not as heirs only, but as incumbrancers also, some of the parties claiming large liens, these incumbrances are personal assets, and the personal representatives of their deceased owners must be made parties to the bill of revivor. 3 Mc Arthur v. Scott, 113 U. S. 340, 396; Story, Eq. PI. sec 171. In Story, Eq. PI. sec. 91, it is said that where a personal repre- sentative of a deceased person is a necessary party, but no such • representative has been appointed, the court will proceed to a decree, if it can be done without prejudice; and if not, it will postpone the case until the proper parties can be made; compare Beach, Eq. Pr. sec. 62; Foster, Fed. Pr. sec. 58. See also Jamison v. Chesnut, 8 Md. 34, 39, in which the plain- tiff sued to vacate a deed made by a person who had gone into insolvency, but whose trustee had died; it was held that before the bill could be filed, the plaintiff should have applied for the appoint- ment of a new trustee, who should be made a party to the case. In Mc Arthur v. Scott, 113 U. S. 340, 403, it was said that it has § 42 Parties. 52 §42. General rule as to trust estates.— The general rule is that in suits respecting the trust property brought either by or against trustees, the beneficiaries as well as the trustees are necessary parties. 1 And where the suit is by or against the beneficiaries, the trustees are necessary parties. 2 The trustees have the legal interest and therefore they are necessary par- ties; 3 the beneficiaries have the equitable title and ultimate been uniformly held that a suit for the general administration of the estate of a deceased person cannot proceed to a final decree even where the executor is out of the jurisdiction, or no executor has been appointed, until an appointment has been made within the jurisdic- tion. 1 Stewart v. Firemens Ins. Co., 53 Md. 564, 574; Hawkins v. Chap- man, 36 Md. 83, 98; Story, Eq. PL sec. 207; Beach, Eq. Pr. sec. 70; Daniell, Ch. Pr. 220; Foster, Fed. Pr. sec. 45; Vetterlein v. Barnes, 124 U. S. 169, 172; Carey v. Brown, 92 U. S. 171, 172; compare Hodges v. Mullikin, 1 Bl. 503, 513-514; Binney's case, 2 Bl. 99, 105. Exceptions are noted in that a beneficiary may bring a suit against one or all of the trustees for a joint breach of trust, the wrong being treated as several as well as joint; and that where one trustee sues another to replace funds misapplied, the beneficiary need not be made a party; and other cases; Story, Eq. PL sees. 212-217. 2 In O'Hara v. MacConnell, g3 U. S. 150, 154, a trustee having large powers over a trust estate was not made a party to a bill to set aside the deed of trust. The court said: "How the decree can clear the property of this trust without having the trustee before the court it is difficult to see. This was the object of the suit; but how can it be made effectual for that purpose in the absence of the person in whom the title is vested?"; quoted in McArthur v. Scott, 113 U. S. 340, 396. 3 In McArthur v. Scott, 113 U. S. 340, 396-402, the subject is elabor- ately considered. In Thayer v. Life Assn., 112 U. S. 717, 719, persons granted property to a trustee to secure a debt due to a third person, and the trustee under authority in the deed proceeded to sell the property; the grantor sued the third person to restrain a sale on the ground that the debt had since been paid. It was held that the trustee must be made a party, as the relief asked cannot be granted without his being before the court. If any of the trustees are dead, the survivors or survivor must be made parties to a suit respecting the subject-matter of the trust. If all the trustees are dead and the estate is one of inheritance, the heir or other proper representative in the realty, of the survivor, should be made a party; if the estate be not of realty, the personal representative of the survivor only need be made a party; Story, Eq. PL sec. 21 1- Hawkins v. Chapman, 36 Md. 83, 97-98; see Dent v. Maddox, 4 Md. 522, 526; Duffy v. Calvert, 6 G. 487, 517. 53 Parties. § 42-4=3 interest, and therefore they are necessary parties. 4 §43. Suits between trustee and beneficiary. — In suits between trustees and beneficiaries in reference to the ad- ministration of an estate, all the trustees and beneficiaries must in general be made parties. 1 Thus in a bill for the construc- tion of a will all the beneficiaries in being must be joined; 2 or for a general accounting of the estate, 3 but not if the suit be to recover a certain specific sum which has been set apart and ascertained. 4 In general it may be said that the trustee and the beneficiaries must all be parties to a suit in which the relations between them are to be investigated. 5 4 Story, Eq. PI. sec. 207; compare Tyson v. Applegate, 40 N. J. Eq. 305, 311; Duffy v. Calvert, 6 G. 487, 519; Binney's case, 2 Bl. 99, 105. ^erry on Trusts, sees. 875. 876; compare Gordon v. Green, 113 Mass. 259, 260. 2 Handy v. Waxter, 75 Md. 517, 523-524; Gordon v. Green, 113 Mass. 259, 260. Compare Evans v. Iglehart, 6 G. & J- 171, 204. In Hecht v. Colquhoun, 57 Md. 563, 566, followed in Cowman v. Colquhoun, 60 Md. 127, 134-135, it was said that in a proceeding by beneficiaries for the appointment of a new trustee in place of one deceased, it is not necessary that there should be an adverse proceed- ing against any one, and there need not, therefore, be any defendants to such a proceeding; and see page 136. 'Compare Perry on Trusts, sec. 881 ; Evans v. Iglehart, 6 G. & J. 171, 204. In Speakman v. Tatem, 45 N. J. Eq. 388, 390, the bill was by one of several beneficiaries against the trustee for an account of the trust estate. The court said that unless the remaining beneficiaries were made parties to the. suit they would not be bound by the account- ing had in it, and each beneficiary might maintain a similar suit and harass the trustee by several accountings; see the authorities collected in the note to this case. 4 Perry on Trusts, sec. 882; Hill on Trustees, 519; compare Speak- man v. Tatem, 45 N. J. Eq. 388, 391. To a suit against trustees to enforce the execution of a trust, beneficiaries claiming present interests directly opposed to those of the plaintiff should be made parties, in order that they may have the oppor- tunity themselves to defend their rights, and not be obliged to rely upon the defence made by the trustees, or to resort to a subsequent suit against the trustees or the plaintiff, or to take the risk of being bound by a decree made in their absence; Sears v. Hardy, 120 Mass. 524, 529- 530. Northampton v. Crafts, 145 Mass. 444^447; Perry on Trusts, sec. 875. In Williams v. Williams, 63 Md. 371, 401, the suit was by a § 44 Parties. 54 §44. Suits between trustee and stranger.— But where a suit is brought by a trustee against a stranger to the trust estate in reference to the trust property, and which suit in no wise affects the trustee's relations with the beneficiaries, it is not necessary to make the latter parties. 1 Thus when a suit is brought by a trustee to recover the trust property, or to re- duce it into possession, it is unnecessary to make the benefi- ciaries parties. 2 So also a trustee appointed by a decree to make sale of property is alone entitled to sue for the pur- chase money; the beneficiaries need not be parties. 3 In such a case there is no conflict of interest between the trustee and the beneficiary and no investigation into their relations with each other is required. 4 So also in a suit brought by a stranger against the trustee where the claim of the plaintiff against the trust estate antedates the creation.of the trust and the suit is not brought in recognition of the trust, but in hostility to it; in such case the action may be against the trustee who is the holder of the legal estate in the property, without joining the beneficiaries. 5 grantor against his grantee, under a deed in trust, to set aside the deed. After the suit was begun, a child was born to the plaintiff, and it was contended that the child should, have been a party defendant to the suit for the reason that there was a limitation in the deed to the "right heirs of said Ernault (the grantor) living at the time of his death." But it was held that the child, as contingent remainderman under the deed, was a mere volunteer, and its estate "must be defeated if the cir- cumstances in which the deed had its origin condemn it." 1 Stewart v. Firemens Ins. Co., 53 Md. 564, 574; in this case trustees- appointed by will misappropriated their trust funds; new trustees were appointed upon proceedings for that purpose, who brought suit against a corporation which had permitted a transfer of its stock to be made by the old trustees without authority. It was not necessary to make the beneficiaries parties to the suit. "The trustees have no adverse claim against the cestuis que trust, and the object of the bill is simply to secure their interests.'' See also Abell v. Brown, 55 Md. 217, 223. 2 Carey v. Brown, 92 U. S. 171, 172, citing a number of cases; Hill on Trustees, 545, note. Compare Story, Eq. PI. sec. 216; Van Bokkelen v. Tinges, 58 Md. S3, 57; Hecht v. Colquhoun, 57 Md. 563, 566; Hays v. Dorsey, S Md. 99, 102; Binney's case, 2 Bl. 99, 105. 3 Waring v. Turton, 44 Md. 535, 548-549. 4 9tory, Eq. PI. sec. 207, note b. 5 Vetterlein v. Barnes, 124 U. S. 169, 172; in this case a person as- 55 Parties. § 45 $45. In cases of assignment; assignor. — The as- signor is not a necessary party to a suit in reference to the in- terest assigned when the assignment is absolute and uncondi- tional, leaving no equitable interest whatever in the assignor, the extent and validity of the assignment not being doubted or denied and no liability remaining in the assignor to be affected by the decree. In such case the assignor is at most merely a nominal or formal party. 1 But if the assignment is not of this character the assignor is a necessary party. 2 And where all the equitable as distinguished from the legal interest has been assigned, it is not in every case necessary to make a person who has the mere legal interest a party. 3 signed life insurance policies to two trustees for the benefit of the as- signor's wife and children, and shortly afterwards was thrown into bankruptcy. The assignee in bankruptcy brought suit to set aside the assignment as fraudulent. It was held that the wife and children were not necessary parties to this suit, but were represented by the trustees. "In a suit brought against a trustee by a stranger, for the purpose of defeating the trust altogether, the beneficiaries are not necessary parties if the trustee has such powers or is under such obligations with respect to the execution of the trust, that those for whom he holds will be bound by what is done against him, as well as by what is done by him." See also Story, Eq. PI. sees. 149, 215; Beach, Eq. Pr. sec. 70; Foster, Fed. Pr. sec. 45: Williams v. Williams, 63 Md. 371, 401; Van Bokkelen v. Tinges, 58 Md. 53. 57. 1 Grand Order, &c, v. Merklin, 65 Md. 579, 583, quoting Story, Eq. PI. sec. 153; in this case a lessee of land assigned his interest to a third party, by which assignment he divested himself of all interest in the property: he also obtained a discharge in insolvency, by which he was fully released from all obligations created by the lease. A suit was brought by the assignee of the leasehold to declare the lease to be a mortgage and the lessee was not made a party. It was held that having divested himself of all interest or title in the sub- ject-matter of the suit, there was no necessity or utility in making him a party; see also Carroll v. Kershner, 47 Md. 262, 275; Whitney v. McKinney, 7 Johns. Ch. 144, 147. 2 Story, Eq. PI. sec. 153; Hill v. Reifsnider, 39 Md. 429, 432; Lynch- burg Iron Co. v. Tayloe, 79 Va. 671, 675. 3 Grand Order, &c, v. Merklin, 65 Md. 579, 583; the rule stated in Story, Eq. PI. sec. 153, that the assignor as the legal owner is in all cases a necessary party, where the equitable interest only is passed, seems to be too broad. § 40-47 Parties. 56 §46. Assignee. — An assignee, as the person having the beneficial interest, is a necessary party to a bill to enforce or set aside rights acquired under an equitable assignment; this being merely an application of the rule that the real parties in interest should be brought before the court whenever their interests are affected. 1 §47. Assignee pendente lite. — An assignee becoming such pendente lite is not a necessary party, as he is treated as a purchaser with notice and is subject to all the equity of the person under whom he claims ; but it is proper to make such assignee a party, and it is generally advisable to do so. 1 Such an assignee however has no absolute right to be made a party of his own motion, but may become such in the discre- 1 Story, Eq. PI. sec. 154; compare Light St. Co. v. Bannon, 47 Md. 129, 144; Crook v. Brown, n Md. 158, 170; Hall v. Maccubbin, 6 G. & J. 107, 109; Coale v. Mildred, 3 H. & J. 278. In Magruder v. Peter, 11 G. & J. 217, 246, the suit was by exec- , utors who had sold certain land, to compel payment of the balance of purchase money by a sale of the land and decrees against individuals for the deficiency. The purchaser gave promissory notes endorsed by sureties, and received a bond of conveyance from the executors, and then assigned the bond of conveyance to his daughters and the sureties on the notes. It was held that the two daughters and the sure- ties, to whom the bond of conveyance was assigned, were "material and necessary parties" to the suit, by reason of their "eventual re- sponsibility," if the funds from the sale of the land should prove insuffi- cient to discharge the debt. In Hill v. Reifsnider,-39 Md. 429, 432, the bill was by a judg- ment debtor against the holder of the judgment, to restrain execution. It appeared that although the judgment was entered in favor of the plaintiff, the real persons in interest were third persons to whose use the judgment had been entered. These persons were therefore neces- sary parties. [§47-] 1 Story, Eq. PI. sec. 156: "it is often important to bring such as- signees before the court as parties in order to take away a cloud hanging over the title, or to compel the assignee to do some act or to join in some conveyance. So that such assignee, although not a necessary party, may at the same time be a proper party at the elec- tion of the plaintiff;" and see Daniell, Ch. Pr. 281. In Schaferman v. O'Brien, 28 Md. ,565, 573, it was said: "It has also been objected that S. (a defendant) having conveyed the property mentioned in the deed to other persons, since the pen- dency of these proceedings, they ought to have been made parties. f> 7 Parties. § 47-48 tion of the court. 2 In cases of involuntary alienation, as in bankruptcy proceedings, it is said that the assignee must be made a party before the cause proceeds. 3 §48. Corporations. — The general rule is that a corpora- tion is an indispensable party to a bill which affects the cor- porate rights or liabilities. 1 Wherever the action is based upon the theory of the indebtedness of the corporation, it must be a If such a suggested fact could delay the cause, it might have become interminable;" and see Story, Eq. PI. sec. 194. -Mellen v. Moline, 131 U. S. 352, 371; in this case it is said: "Pur- chasers, of property involved in a pending suit may be admitted as parties in the discretion of the court; but they cannot demand as of absolute right to be made parties, nor can they complain if they are compelled to abide by whatever decree the co.urt may render within the limits of its power in respect to the interest their vendor had in the property purchased by them pendente lite. Eyster v. Gaff, 91 U. S. 521, 524; Union Co. v. Southern Co., 130 U. S. 565, 570-571; 1 Story, Eq. Jur. sec. 406; Murray v. Ballou, 1 Johns. Ch. 566, 574. As was said by Sir William Grant, in Bishop of Winchester v. Paine, 11 Ves. 194, 197, 'the litigating. parties are exempted from the necessity of taking any notice of a title so acquired. As to them, it is as if no such title ex- isted. Otherwise suits would be indeterminable; or, which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined' "; quoted in part in Sanders v. McDonald, 63 Md. 503, 509; compare ex parte R. Co., 95 U. S. 221, 226. In Stockett v. Goodman, 47 Md. 54, 60, assignees pendente lite asked to be admitted as parties in a foreclosure case; but the court refused. "If assignees pendente lite can claim the right of becoming parties, the litigation by successive assignments might be rendered interminable. They are assignees under a voluntary deed made to them pendente lite, and subject to all the equities of the defendant. They stand in no better position than the person under whom they claim, and can set up no defence which he cannot. Their rights are entirely in subjection to his, and to admit them as parties now would delay the complainant's proceedings and could not change the result;" citing Story, Eq. PI. sec. 156. Compare Foley v. Bitter, 34 Md. 646, 649; Rhodes v. Amsinck, 38 Md. 345, 350; Brown v. Thomas, 46 Md. 636, 641; Walsh v. Smyth, 3 Bl. 9, 27; Holthaus v. Nicholas, 41 Md. 241, 267; Rowland v. Prather, 53 Md. 232, 241. 3 Sedgwick v. Cleveland, 7 Paige, 287, 290-291 ; Davis v. Sullivan, 33 N. J. Eq. 569, 572; Story, Eq. PI. sees. 158 a, and 342; Beach, Eq. Pr. sec. 489; compare Eyster v. Gaff, 91 U. S. 521, 524; Mount v. Manhattan Co., 43 N. J. Eq. 25, 29. J Swan Co. v. Frank, 148 U. S. 603, 610. § 48 Parties. 58 party, in order to have a determination upon the question of the indebtedness. Perhaps the most important bills of this nature are creditors' bills to compel the payment of unpaid balances of subscriptions due the corporation by the sub- scribers to the capital stock; in all such cases the corpora- tion must be a party. 2 In actions against directors of a cor- poration for malfeasance in the management of its affairs, to the damage of the corporation and its stockholders, the corporation itself is the proper and primary party to complain ; but if the corporation fails or refuses to take the proper legal steps, a stockholder may sue in his own name ; 3 in such a case it is essential that the corporation should be made a defendant. 4 In any ordinary suit against the corporation to establish and recover a debt, the stockholders are not proper parties, except 2 Cook on Stock, &c, sec. 206. 3 Davis v. Gemmell, 70 Md. 356, 376; Booth v. Robinson, 55 Md. 419, 439; Porter v. Sabin, 149 U. S. 473, 478. In City of Davenport v. Dows, 18 Wall. 626, a bill was filed by stockholders against a municipality to restrain the collection of a tax alleged to be illegally imposed upon the corporation. The court said, p. 627: "That a stockholder may bring a suit when the corpora- tion refuses to act is settled in Dodge v. Woolsey, 18 How. 340, but such a suit can only be maintained on the ground that the rights of the corporation are involved. * * * Manifestly the proceedings for this purpose should be so conducted that any decree which shall be made on the merits shall conclude the corporation. This can only be done by making the corporation a party defendant. The relief asked is on behalf of the corporation, not the individual shareholder; and if it be granted'the complainant derives only an incidental benefit from it. It would be wrong in case the shareholder were unsuccessful to allow the corporation to renew the litigation in another suit, involving precisely the same subject-matter. To avoid such a result, a court of equity will not take cognizance of a bill brought to settle a ques- tion in which the corporation is the essential party in interest, unless it is made a party to the litigation ;" see also Porter v. Sabin, 149 U. S. 473. 478. 4 City of Davenport v. Dows, 18 Wall. 626, 627; Morawetz, Private Corp. sec. 257. In Booth v. Robinson, 55 Md. 419, 439, a bill was filed by share- holders of the Powhatan Company, a corporation, against some of the directors of the Company, against the corporation itself, and against another company, alleging that the defendants had fraudulently mis- managed the affairs of the Powhatan Company. In such a suit it is essential that the Powhatan Company be made a party defendant. In Wilkins v. Thome, 60 Md. 253, 258-259, a shareholder in a cor- 59 Parties. § 48-49 as they are represented by the corporation. So also in a suit by stockholders against other stockholders to enforce payment of subscriptions to the stock and to ascertain the debts of the corporation and to compel a ratable contribution for the payment of the same, the corporation should be made a party. 6 - In a suit to compel a corporation to transfer to the plaintiff stock standing on its books in the name of a third person, the corporation and the third person are each indis- pensable parties; 7 similarly when the suit is to compel a transfer of stock wrongfully issued by the defendant to him- self while in charge of the corporation's books. 8 So also when a creditor proceeds against its officers or stockholders who have divided its assets among themselves. 9 §49. Senior incumbrancers; the general rule. —As a general rule it is not necessary in a proceeding for the sale of property to make senior incumbrancers parties. 1 Thus in a bill to enforce a mechanic's lien, a mortgagee under a mort- gage prior in effect to the mechanic's liens was improperly made a party; unless the mortgagee in such case should come poration filed a bill against the president and other shareholders, alleg- ing fraudulent mismanagement of the affairs of the corporation with the intent to deprive the plaintiff of his rights. The contest related to the internal management of the corporation and the validity of the acts of those claiming to be its officers and stockholders. In such a case the corporation was an essential party to the case, although it was alleged that it had fallen into abandonment and decay, but had never been legally dissolved; compare Campbell v. Poultney, 6 G. & J. 94, 102. 5 Glenn v. Williams, 60 Md. 93, 116; compare Jones v. Keating, 55 Md. 145, 149. "Fiery v. Emmert, 36 Md. 464, 475. 7 St. Louis Co. v. Wilson, 114 U. S. 60, 62. 8 Kendig v. Dean, 97 U. S. 423, 424-426. 9 Deerfield v. Nims, no Mass. 115, as stated in Swan Co. v. Frank, 148 U. S. 603, 610; see Lyman v. Bonney, 101 Mass. 562. x The present rule is not exactly that stated by the chancellor in Wylie v. McMakin, 2 Md. Ch. 413, 417, as follows: "The general rule certainly is that all incumbrancers shall be made parties, whether prior or subsequent; and though cases may be found, where it has been held that a prior mortgagee need not be made a party, because his rights are paramount, it would not be safe in the face of opposing § 49-50 Parties. 60 in and consent to be made a party, a sale of the property to pay the mechanic's lien must be made subject to the mortgage. 2 So also in a proceeding for partition, a prior encumbrancer, as a mortgagee or judgment creditor, is not a proper party, as his rights cannot be affected and he cannot be compelled to join in the partition, nor can any reliet be prayed against him. 3 §50. When the debt is not due. — Where the prior incumbrance is not due, it is perhaps never necessary to make the incumbrancer a party, for the reason that the court has no power to force him to take his money before it is due. Thus in a proceeding for the sale of property under a second mort- gage, a senior mortgagee whose debt is not due should not be made a party. 1 Similarly in a suit to set aside a deed as in authorities of the highest respectability to say that such is the estab- lished law of this court;" quoted in Walter v. Riehl, 38 Md. 211, 216- 217; similarly stated in Ducker v. Belt, 3 Md. Ch. 13, 23; compare Speed v. Smith, 4 Md. Ch. 299, 304; Tome v. King, 64 Md. 166, 182. 2 Smith v. Shaffer, 46 Md. 573, 578. In Story, Eq. PI. sec. 193, it is said: "If indeed any incumbranc- ers (whether prior or subsequent) are not made parties, the decree of foreclosure does not bind them, as also, a decree of sale would not. The prior encumbrancers are not bound; because their rights are paramount to those of the foreclosing party. The subsequent en- cumbrancers are not bound, because their "interests would otherwise be concluded without any opportunity to assert or protect them." ' 3 Thruston v. Minke, 32 Md. 571, 574; Freeman on Cotenancy, &c, sees. 478, 479. In Jerome v. McCarter, 94 U. S. 734, 736, it was said that the general rule was that "in a suit by a junior mortgagee to foreclose a mortgage, prior mortgagees are not necessary parties. So it has been held in England. * * * Such, also, is the rule asserted in this country, where the bill of a junior mortgagee, as in this case, seeks only a foreclosure or sale of the equity of redemption. * * * The subject has been under consideration in Hagan v. Walker, 14 How. 37, in which it was shown that it is not necessary in all cases to make a prior mortgagee a party. And it is not easy to see why it should be in any case, when the decree asked cannot injure or affect him;" compare Woodworth v. Blair, 112 U. S. 8, 11. iWylie v. McMakin, 2 Md. Ch. 413, 417; the chancellor said: "he may prefer leave his money out on the security of the mortgage and if he does so, I do not know that there is any authority in this court to compel him to take it;" quoted in Walter v. Riehl, 38 Md. 211, 217. In Ellicott v. Ellicott, 6 G. & J. 35, 48, stated in Walter v. Riehl, 61 Parties. § 50-51 fraud of creditors, it is not necessary that a prior mortgagee whose debt is not due should be made a party. 2 §51. When the debt is due or uncertain. — But in some cases the desire of the court to make a final settle- ment of the rights of all parties interested, strongly enforces the necessity of making the prior incumbrancer a party. 1 It may be that under certain circumstances the justice of a case requires that a sale should be made free of incumbrances. 2 38 Md. 211, 218, the real estate of a deceased person was sold under a creditors' bill; a mortgagee who was not made a party was held not bound to come in and seek payment of his claim out of the proceeds of sale, but might cling to his specific pledge. This doctrine was reiter- ated in Brooks v. Brooke, 12 G. & J. 306, 318-319, in reference to prior incumbrancers not made parties to a bill by a subsequent mort- gagee for sale of the mortgaged premises; compare Duvall v. Speed, 1 Md. Ch. 229, 236. In Tome v. Merchants, &c, Assn., 34 Md. 12, 14, there was a foreclosure of a subsequent mortgage without making the prior mort- gagee a party. The proceedings were under the provisions of the code of i860, vol. 2, sec. 782, &c, (code of public local laws, art. 4, sec. 692, &c), relating to mortgages in Baltimore city. It was held that these provisions entitle the mortgagee to sell without making the prior mortgagee a party to the proceeding, and he has no right to inter- fere with the execution of the decree, the sale being made subject to his rights under his prior mortgage. See also the facts in Lenderking v. Rosenthal, 63 Md. 28, 35-36. 2 Walter v. Riehl, 38 Md. 211, 219; the court said: "from this review of the Maryland decisions on this point it is plain it is not in all cases like the present essential to the validity of a decree of sale to make prior incumbrancers parties. Whether in any such case they are necessary and indispensable parties (though proper to be made so) is a ques- tion still undecided." In Trego v. Skinner, 42 Md. 426, 431, the bill was filed to set aside certain conveyances alleged to be in fraud of creditors, and a building association holding a mortgage on a certain property, was not made a party. The court said: "No relief is asked against them (the association), their mortgage is not assailed, and their title under it is conceded to be valid. There is, therefore, no ground on which they can be regarded as a necessary party to the suit." iWylie v. McMakin, 2 Md. Ch. 413, 418; the chancellor said, p. 417: "I am not aware of any case decided by the court of appeals in which it has been held that either a subsequent or prior mortgagor whose debt is due, need not be brought before the court; quoted in Walter v. Riehl, 38 Md. 211, 217; see the*facts in Glenn v. Clapp, 11 G. & J. 1. 2 Walter v. Riehl, 38 Md. 211, 219; compare Lenderking v. Rosen- thal, 63 Md. 28, 36. § 51 Parties. 62 Thus where the debt secured by a prior lien was long over- due, and the amount of the debt could not be definitely- ascertained by bidders, it was proper that the lien holders should be made parties, so that the property could be sold free of all incumbrances, and that the bidders could know precisely what they were buying. 3 Where there is any sub- stantial doubt as to the amount due the prior encumbrancers, or as to the property covered by their liens, or if the bill seeks to affect their interests by praying for a sale of the entire property, and not of the equity of redemption alone, they seem to be necessary parties.* s McLaughlin v. Barnum, 31 Md. 425, 449-450, as stated in Walter v. Riehl, 38 Md. 211, 218-219; on page 449 the court said: "If this amount (of the debt) were ascertained or agreed upon, there would be no objection to decreeing the sale subject thereto." The lien holders were not decreed to be made parties, but the same practical results were obtained as if they had been made parties, by ordering a sufficient amount of the proceeds of sale to be set apart for their payment. In Thruston v. Minke, 32 Md. 571, 574-575, the bill was for sale for partition and the mortgagees were made parties. Although they might have objected, they did not, but acquiesced. They were there- fore bound, and as their debts were due, there was no objection to de- creeing a sale of the property free of incumbrances; compare also Gibson v. McCormick, 10 G. & J. 65, 101; and see Lenderking v. Rosenthal, 63 Md. 28, 35-36. In Tome v. King, 64 Md. 166, 181-182, it was said that where a subsequent mortgagee or other incumbrancer files a bill for the pur- pose of ascertaining the extent of the priorities, making a prior mort- gagee a party, but without offering to redeem, the prior mortgagee may be dismissed with costs. But if such prior mortgagee or incum- brancer, instead of asking to be dismissed, consents to sale and to take his principal and interest out of the proceeds, as he thereby adopts the suit and takes the benefit of it, he must contribute to the costs, &c; compare^ Thruston v. Minke, 32 Md. 571, 574; and see the facts in Reigle v. Leiter, 8 Md. 405, 415. 4 Story, Eq. PI. sec 193, note (o), page 194. In Hefner v. Northwestern Ins. Co., 123 U. S. 747, 754, it was said: "To a bill in equity to foreclose a second mortgage, although the first mortgagee is not a usual or necessary party when the decree sought and rendered is subject to his mortgage, yet at least when he holds the legal title and his debt is due and payable, he may, and when the property is ordered to be sold free of all incumbrances' must be made a party; and if he is, and the bill contains sufficient allegations, he is barred by the decree, the bill in such case being in 63 Parties. § 52 §52. Junior incumbrancers; the general rule. — While subsequent incumbrancers are not always necessary parties, it is generally proper to make them parties, with a view to a final settlement of the rights of all the persons in interest ;* the purpose is that there may be an end of suits, or to prevent a multiplicity of suits.-' Where such incumbrancers are not made parties, they are not bound by a decree passed in their ab- sence; 3 but if they are made parties they are concluded by the decree. 4 effect both a bill to foreclose the second mortgage and a bill to redeem from the first mortgage." In Jerome v. McCarter, 94 U. S. 734, 735-736, it was said: "It is undoubtedly true there are cases to be found in which it was ruled that prior incumbrancers were necessary parties to a bill for the foreclosure of a junior mortgage, but in most of these cases the cir- cumstances were peculiar. Where the effort of the junior mortgagee is to obtain a sale of the entire property or estate, and not merely of the equity of redemption, there is reason for making the prior in- cumbrancers parties, for they have an immediate interest in the de- cree. And so where there is substantial doubt respecting the amount of the debts due prior lien creditors, there is obvious propriety in making them parties, that the amount of the charge remaining on the land after the sale may be determined and that purchasers at the sale may be advised of what they are purchasing." . iHarris v. Hooper, 50 Md. 537, 547; in this case the court quotes the language of the chancellor in Haines v. Beach, 3 Johns. Ch. 464, as follows: "The necessity of making the subsequent incumbrancers parties, or holding their rights unimpaired, appears to be much stronger, and is indispensable to justice, in cases of decrees for sales, according to our practice; for otherwise the mortgagor would take the surplus money or the cash value of the equity of redemption, and defeat entirely the lien of the subsequent" creditor." And the court adds: "Besides, the subsequent incumbrancer is interested in the account, and entitled to examine the same, otherwise his rights might be defeated by collusion between the mortgagee and mortgagor." See also Story, Eq. PI. sec. 193; Beach, Eq. Pr. sec. 74. 2 Johnson v. Hambleton, 52 Md. 378, 382. 3 Harris v. Hooper, 50 Md. 537, 547, 548; in this case the bill was by creditors who held a judgment subsequent to a mortgage which had been foreclosed without making such creditors parties; the bill sought to set aside the decree of foreclosure; and the court held that as they were not parties to the decree of foreclosure they were not bound by the decree, and were in a position to have it annulled if fraud in the decree could be established. See also Ducker v. Belt, 3 Md. Ch. 13, 23. 4 Johnson v. Hambleton, 52 Md. 378, 382. By the expression that junior incumbrancers not parties are §53-54 Parties. 6* §53. Are not necessary parties.— In a suit by a senior mortgagee to foreclose a mortgage, it is not necessary to make subsequent lienors parties; the purchaser at a sale under the senior mortgage acquires all the title which the mortgagor had in the property at the time of recording the mortgage, unaffected by the subsequent liens. 1 In cases of decrees by consent in mortgages in Baltimore city there is no legal or equitable principle requiring a prior mortgagee to make subse- quent mortgagees or incumbrancers parties to the pro- ceedings. 2 And when a mortgage is foreclosed under a statu- tory power of sale the case is not one in which the principle ap- plies, requiring all persons having claims to the matter in con- troversy to be made parties. 3 §54. Are proper parties. — But in a suit to enforce an elder mortgage it is always proper that junior mortgagees should be made parties; and if application for that purpose be made to the co'urt while the proceedings are in -fieri, or if the court's attention is called to the fact that there are junior mortgages or incumbrances, it is the recognized practice for the court to direct such junior incumbrancers to be made parties. 1 "not bound by the decree'' is not meant that the decree is of no effect as to the junior incumbrancers and that they may proceed to enforce their junior liens as if there had been no foreclosure of the first lien; but that not being parties to the decree, they may attack it on any proper ground, such as fraud in obtaining the decree, that the prior lien had been satisfied before the decree, &c. 1 Leonard v. Groome, 47 Md. 499, 504-505; after a decree and sale, the omission to make 'such junior encumbrancers parties, is no valid objection to the ratification of the sale; citing Brawner v. Watkins. 28 Md. 217, a case at law. - 2 Carroll v. Kershner, 47 Md. 262, 276, citing Hays v. Dorsey, 5 Md. 99; post, sec. 476. 3 Warfield v. Ross, 38 Md. 85, 90; Chilton v. Brooks, 71 Md. 445, 448; post, sec. 461. [§54-1 Leonard v. Groome, 47 Md. 499, 505; Neal v. Rathell, 70 Md. 592, 599-600. In Johnson v. Hambleton, 52 Md. 378, 382, a senior mortgagee filed a bill of foreclosure and made all the junior lien-holders parties defendant; the court said: "that the junior lien-holders were proper parties to the suit cannot be questioned. By the very terms of the decree their interests are directed to be sold, and if their right to redeem is cut off by the sale, equity requires that their rights shall be protected in the distribution of the proceeds of sale." And on pages 65 Parties. §55 §55. Vacating deed. — In suits to vacate deeds tor fraud as against creditors, all the parties to the deed are in general necessary parties to the cause, without whom no decree can be passed. 1 Thus the grantor must be made a party defendant, as well on account of the fraud charged, as because of the title remaining in him for the benefit of creditors. 2 If however after making the deed, the debtor becomes a bankrupt, he need not be a party, as his title and interest are represented by the assignee in bankruptcy, 3 who must be made a party. 4 So also the grantee or grantees in such a deed must be made parties, having an interest to sustain the conveyance. If the original grantee has conveyed the property to others, the latter are necessary parties. 5 ' But it is not necessary to make the mere 384, 385, the court speaks of "the universal practice in the State in such cases to make all junior lien-holders parties, and make an end of suits, by paying all according to priorities under proceedings in favor of the eldest mortgagee.'' Compare Oliver v. Caton, 2 Md. Ch. 297, 302; Glenn v. Clapp, 11 G. & J. 1, 10, as stated in Holthaus v. Nicholas, 41 Md. 241, 263-264. *Ward v. Hollins, 14 Md. 158, 167, (stated in Walter v. Riehl, 38 Md. 211, 220); in this case it was held that "where the object of the pro- ceeding is to assail a deed either for the purpose of having it rectified or vacated, all the parties to the instrument are necessary and proper parties to the cause, without whom no valid decree can be passed." See Wait on Fraudulent Conveyances, sees. 128-139; Bump on Fraudulent Conveyances, sees. 556-557; Beach, Eq. Pr. sec. 72; Pom- eroy, Rem. sec. 347. See also Chadbourne v. Coe, 10 U. S. App. 78, 86; stated post, sec. 71; compare Buchanan v. Torrance, 11 G. & J. 342, 346; Gay- lords v. Kelshaw, 1 Wall. 81, 82; Mattingly v. Grimes, 48 Md. 102, 107; Albert v. Hamilton, 76 Md. 304, 310. 2 Lovejoy v. Irelan, 17 Md. 525, 526, (stated in Walter v- Riehl, 38 Md. 211, 220); in some courts, however, the contrary view is held; Taylor v. Webb, 54 Miss. 36; see Beach, Eq. Pr. sec. 72. 3 Buffington v. Harvey, 95 U. S. 99, 103. 4 Swan v. Dent, 2 Md. Ch. in, 114; Waters v. Dashiell, 1 Md. 455, 473-474; see also Farrow v. Teackle, 4 H. & J. 271; Jamison v. Ches- nut, 8 Md. 34, 39; ante, sec. 31. B Wait on Fraudulent Conveyances, sec. 131 ; Ward v. Hollins, 14 Md. 158, 167; see Mattingly v. Grimes, 48 Md. 102, 107. In Trego v. Skinner, 42 Md. 426, 432-433, (as stated in Brian v. Thomas, 63 Md. 476, 480,) it is held that where the sole object of a bill is to obtain satisfaction of plaintiff's judgments out of the land of the defendant, which they alleged he had conveyed in distinct parcels to different parties for the purpose of defrauding his creditors, 5 §55-56 Parties. 66 agent of the fraudulent grantor and grantee a party to the cause; although the agent, for example, received a fraudulent deed from the grantor and then conveyed to the ultimate grantee. 6 §56. Vacating decree. — A decree cannot be set aside upon the ground of fraud or for any other cause without having all the parties to the decree before the court. 1 Thus the plain- tiff in the suit in which the decree was rendered, is a necessary all the grantees in the several deeds may be joined as parties de- fendant with the debtor, although such grantees may have no common interests in the several parcels, and although no joint fraud is charged. In Dunham v. Ramsey, 37 N. J. Eq. 388, the suit was by cred- itors to set aside a mortgage from A. to B. The mortgage notes had been assigned by the mortgagee B. to third parties, who having an immediate interest in maintaining the lien of the mortgage, were necessary parties. "Walter v. Riehl, 38 Md. 211, 220-221; in this case a husband con- spired with his wife to defraud the former's creditors and in pursu- ance thereof the husband conveyed property to a third party, who soon afterwards conveyed it to the wife; but no fraud or confederation with the other parties was charged against the third party. It was held that he had no interest in the result of the suit and was the mere agent or instrument of the husband and wife and used by them as such in the consummation of their fraud, the sole object being to vest title to the property in the wife. The third party was therefore not a necessary party. In Davis v. Simpson, 5 H. & J. 147, 149, as stated in Walter v. Riehl, 38 Md. 211, 220, a trustee sold and conveyed property to a third person, who on the same day reconveyed it to the trustee. Upon a bill filed by a legatee, the sale and the deed from the trustee and the deed back to him were vacated as fraudulent. The third person was not made a party to this bill and it was held that it was not neces- sary for him to be a party, as he was the mere agent of the trustee and the deeds were executed solely for the purpose of vesting title in the trustee. See also Williams v. Williams, 63 Md. 371, 401; ante, sec. 43, note; Canton v. McGraw, 67 Md. 583, 585-587. iRalston v. Sharon, 51 Fed. Rep. 702, 712; it is here said that "it is contrary to every principle of equity jurisprudence for this or any other court to set aside a judgment or decree upon the ground of fraud, or any other cause, without having all the parties to such judg- ment or decree before the court;" see Marbury v. Stonestreet, 1 Md. 147, 162; Hodges v. Mullikin, 1 Bl. 503, 514; Beach, Eq. Pr. sec. 873. t>7 Parties. § 56-57 party defendant, and his absence is a fatal defect; 2 so in a bill to set aside a decree of foreclosure of a railroad, the trustees in the mortgages which were foreclosed, who were parties to the decree of foreclosure, are indispensable parties, as well as the railroad corporation whose property was foreclosed, and the purchaser thereof. 3 Similarly in a bill to restrain execu- tion of a judgment alleged to have been obtained by fraud, the judgment creditors are necessary parties.* §57. Creditors' bills; plaintiffs. — A creditors' bill may be filed by any one or more creditors, 1 or persons who are subrogated to the rights of creditors, 2 who have a common interest with other creditors in having the assets of the de- ceased applied to the payment of his debts. The plaintiff thus sues on behalf of himself and other creditors. 3 But to au- 2 Harwood v. Cincinnati, &c, R. Co., 17 Wall. 78, 80-81; Hoe v. Wilson, 9 Wall. 501, 503-504. 3 Ribon v. Chicago, &c, R. Co., 16 Wall. 446, 450-451. 4 Hill v. Reifsnider, 39 Md. 429, 432. In Buchanan v. Torrance, n G. & J. 342, 345-346, a bill was filed by sureties to have entered satisfied a judgment against them as sureties of a purchaser of land which had been sold under prior in- cumbrances created by the vendor. It was held that to grant the relief, the court must vacate the sale, and that this could not be done unless the purchaser was a party; or his heirs in case of his death. iBirely v- Staley, 5 G & J. 432, 450; see post, sees. 373-392. 2 Collinson v. Owens, 6 G. & J. 4, 10; in this case it was held that where an executor who has paid to creditors a greater amount of assets than he has received, and the personal estate is insufficient to pay the debts, he may be substituted to the rights of the creditors and file a bill for the sale of the real estate; Gist v. Cockey, 7 H. & J. 134, 139; Billingslea v. Henry, 20 Md. 282, 287; see also Hammond v. Ham- mond 2 Bl. 306, 388, 391; Ellicott v. Ellicott, 6 G. & J. 35, 47; Winder v. Diffenderffer, 2 Bl. 166, 201; Gaither v. Welch, 3 G. & J. 259, 263-264. Compare substitution by a purchaser from a devisee of real estate, in the place of creditors; Gibson v. McCormick, 10 G. & J. 65, 107-108. 3 As to who may or may not be made parties to a creditors' bill the general rule is that all persons having an interest in the object of the suit ought to made parties. But this rule is founded on conven- ience, and is made to yield in cases of necessity or where it may be attended with any inconvenience which may be safely avoided, upon the ground of there being a common interest among creditors which any one of them may sufficiently represent. Thus to avoid the great inconvenience of making all the creditors parties plaintiff, any one has been allowed to file a bill for himself and in behalf of all others of §57 Parties. 68 thorize such a suit it must appear that the relief sought by him is in its nature beneficial to all those whom he undertakes to represent. 4 Thus a vendor holding an equitable lien, claiming merely as such, has no common interest with the creditors at large, and cannot sustain a creditors' suit. 5 So also a mortgagee while retaining his mortgage security, cannot file a creditors' bill and demand payment of the mortgage debt out of the fund which should be appropriated to the satisfaction of the claims of the unsecured creditors. 6 If however a cred- itor who has a lien has also a claim beyond the extent of such lien, because of the deficiency of the property to pay the debt, or because of some other claim in addition to the debt, he may file the bill as to such claim on behalf of himself and others. So also a mortgage creditor after having exhausted the mortgaged estate by a sale, may come in against the other estate of his debtor for the deficiency pari passu with the other creditors. 7 his co-creditors; Hammond v. Hammond, 2 Bl. 306, 347; Strike's case, 1 Bl. 57, 84; Watkins v. Worthington, 2 Bl. 509, 523-524. ♦Hammond v. Hammond, 2 Bl. 306, 344-345, 350; and that the ob- ject of the bill is not merely to establish any existing priorities among them as creditors; on page 350, it is said that where a creditor may sue either for his own claim alone or as well on behalf of others as of himself, he should by an express averment in his bill make his elec- tion to sue in one way or the other; and where he sues only in his own name, but can only obtain the relief by suing as well on behalf of others, he must amend the bill. B Hammond v- Hammond, 2 Bl. 306, 345; see the instance given here; Ellicott v. Welch, 2 Bl. 242, 244-245; Andrews v. Scotton, 2 Bl. 629, 660; compare Tessier v. Wyse, 3 Bl. 28, 36. 6 Macgill v. Hyatt, 80 Md. 253, 258. A legatee has the right to call for a final settlement of the test- ator's estate, and to have his bill treated as a creditor's bill as re- gards the creditors of the deceased and to have them notified to bring in their claims, as the only means of getting his legacy clear of incumbrance; Addison v. Bowie, 2 Bl. 606, 622; Tessier v. Wyse, 3 Bl. 28, 36; Hammond v. Hammond, 2 Bl. 306, 386. 'Hammond v. Hammond, 2 Bl. 306, 345, 384; Macgill v. Hyatt, 80 Md. 253, 259; compare Worthington v. Lee, 2 Bl. 678, 683; Post v Mackall, 3 Bl. 486, 521-522; McCormick v. Gibson, 3 Bl. '499, 507 note case; (Brandy's Ed. p. 498.) 69 Parties. § 58 §5S. Creditors' bills; defendants.— As to the defend- ants, a creditors' bill is no exception to the general rule which requires all parties in interest who are in esse to be brought into the case. Thus all the heirs and devisees must be made parties in order to enable the creditors to obtain satis- faction out of the real assets. 1 If the deceased was a member of a partnership, the partners must be made parties in order to obtain from them that which forms a part of the assets of the deceased, 2 but it is not necessary to make a co-obligor of the deceased a party to the suit. 3 A general unsecured cred- itor cannot in a creditors' bill make a mortgagee of the de- ceased debtor a defendant and require him to accept the iBowen v. Gent, 54 Md. 555, 570; Hammond v. Hammond, 2 Bl. 306, 318, 347-348, where it is also said that the general rule would lead to following his estate beyond his personal representatives and bring- ing forward his debtors; but the rule is to stop short at the personal representatives, unless the justice due to the plaintiffs, or the peculiar circumstances of the case should require others to be called in. By statute it was provided that the heir at law only need be served with process, allowing the others to be called in by publication; act 1797, ch. 114; act 1831, ch. 311, sees. 10, 11; Hammond v. Ham- mond, 2 Bl. 306, 348; Watkins v. Worthington, 2 Bl. 509, 524. As to making the heir a party to a creditors' bill to charge land devised, see Hammond v. Hammond, 2 Bl. 306, 318. In Hammond v. Hammond, 2 Bl. 306, 388, it is said that although a lien creditor cannot be compelled to come into the case and receive satisfaction in discharge of his lien, merely on the usual notice to creditors, yet any other creditor may make him a party so as to have his incumbrance cleared away. In Gibson v. McCormick, 10 G. & J. 65, 101, the mortgagee was made a party and assented to a sale conveying his interest; see also Post v. Mackall, 3 Bl. 486, 495, and ante, sees. 49-54. In Post v. Mackall, 3 Bl. 486, 518, it is said that by coming in under a decree a judgment creditor of the executor cannot be com- pelled to part with any advantage his judgment has given him as against the personal estate, although he will not be allowed to levy a fieri facias. For the practice in regard to dower claims against the real estate made by a widow defendant, see Gibson v. McCormick, 10 G. & J. 65, 113; Simmons v. Tongue, 3 Bl. 341, 344; McCormick v. Gibson, 3 Bl. 499, 501-502, note case, (Brandy's Ed. 491-492) ; Lynn v. Gephart, 27 Md. 547, 569- 2 Hammond v. Hammond, 2 Bl. 306, 348. 3 Watkins v. Worthington, 2 Bl. 509, 524-525- § 58 Parties. 70 mortgage debt; such a creditor has no right to redeem the mortgage and be subrogated to the rights of the mortgagee. 4 Formerly there were many instance's of creditors' bills against the heirs of the deceased debtor alone, without making the executor or administrator a party. 5 But it js established that it is necessary for the personal representative to be a party, in order that the insufficiency of the personal assets may be properly ascertained. 6 There are, however, said to be two exceptions to the rule requiring the personal representative of the deceased debtor to be made a party; first, if the de- ceased left no personal estate whatever, and that fact plainly appears in the case, or the personal estate left by him was of so little value that no one has taken out letters of admin- istration; 7 and, second, if the executor of the deceased be dead and insolvent. 8 Another exception is to be noted in *McNiece v. Eliason, 78 Md. 168, 175-178; but the personal repre- sentatives of the deceased debtor may redeem. "See Watkins v. Worthington, 2 Bl. 509, 543, for instances. 6 Tyler v. Bowie, 4 H. '& J. 333; David v. Grahame, 2 H. & G. 94, 97; Mayor, &c, v. Chase, 2 G. & J. 376, 381; Hammond v. Hammond, 2 Bl. 306, 348; Tessier v. Wyse, 3 Bl. 28, 57; Macgill v. Hyatt, 80 Md. 253, 259-260. In David v. Grahame, 2 H. & G. 94, 97, it is said that it is neces- sary to make the personal representative "of the deceased debtor a party — the real estate being only answerable in the event of the in- sufficiency of the personal property to discharge the debts, which is necessary to be shown before a decree can be obtained for the sale of the real estate; and to that end it is proper and required that he who has the administration of the personal estate should be a party, other- wise it would be extremely difficult to come at the fact of insufficiency of the personal assets; and real property might often be subjected to the payment of debts, for which it was not liable." In Hammond v. Hammond, 2 Bl. 306, 348, it is said that the per- sonal representative may be a party either as plaintiff asking direction and indemnity, or as a suing creditor; or as a defendant, to have an account of the personal estate, that it may be first applied as far as it will go. 'Hammond v. Hammond, 2'Bl. 306, 348; stated in Macgill v. Hyatt, 80 Md. 253, 260; the fact of there having been no letters of adminis- tration taken out may be sufficiently shown by a certificate of the register of wills of the county in which the debtor died; compare Watkins v. Worthington, 2 Bl. 509, 522-523; Simmons v. Tongue, 3 Bl. 341. 352. 8 Hammond v. Hammond, 2 Bl. 306, 348; stated in Macgill v. Hyatt, 71 Parties. § 58-59 cases where a creditors' suit is engrafted upon another suit, to which the personal representative was not a party; in which event the creditors' suit may proceed without calling in the personal representative as an additional party." But the executor or administrator of a deceased executor or adminis- trator who has died without accounting for the assets of the deceased debtor should be made a party, together with the administrator dc bonis non of the debtor. 10 And where it is charged that by collusion between the personal representative of the debtor and some third person, the assets have been mis- applied or wasted, such third person should be made a party in order to obtain a decree against him. 11 §59. Joint obligations ; suretyship. — In the case of joint bonds or obligations, all the parties, obligors and obligees, are required to be made parties to the suit. 1 It is even said that where the bond is several as well as joint, all the obligors, whether principals or sureties, must be made parties, to avoid circuit}' of action in taking an account among themselves. The same rule also applies where one of the obligors is dead;* 8o Md. 253, 260; Birely v. Staley, 5 G. & J. 432, 454. In Tessier v. Wyse, 3 Bl. 28, 57-58, stated in Macgill v. Hyatt, 80 Md. 253, 260, the personal representative, under the circumstances of the case, was not required to be a party. 'Hammond v. Hammond, 2 Bl- 306. 346; post, sec. 377; compare Jones v. Jones, 1 Bl. 443, 460. 10 Hammond v. Hammond, 2 Bl. 306, 349; "not upon the ground that the executor of an executor is entitled to administration dc bonis non of the first deceased, but because of there being in respect of such assets, a privity and a mediate representation of, and indebtedness to, the first deceased;" see also Tessier v. Wyse, 3 Bl. 28, 57. "Hammond v. Hammond, 2 Bl. 306, 348; and on page 349, it is said: "So, too, where the executor is insolvent, and has not the means to sue. or will not act, a creditors' suit may be brought against him and other persons accountable to the estate." iBrian v. Thomas, 63 Aid. 476, 481, citing Story, Eq. PI. sec. 169: "It has been said that in regard to the obligors, this is only a rule of conven- ience, and to save- those who are severally charged, the trouble of a new suit for a contribution against those who are not charged, and not a rule of necessity; and, therefore, it may be dispensed with in certain cases. This is true. But then the exceptions all stand upon special grounds; and the rule is now firmly established, as one of general obligation, in this as well as in all other classes of cases.'' To §59 Parties. 72 for in such a case his personal representatives, as well as the survivors, must be made parties, whether the suit be brought for payment by the survivors alone or out of the assets of the deceased. 2 In a bill for relief against the surety, as such, the principal, and if he be dead, his representatives must be made parties. As a general rule it is said that where the rights of sureties are attempted to be affected, all co-sure- ties, counter-sureties, and the principals also, are necessary parties. 3 The surety is entitled to have the principal made a party so that the latter may assist in defending the case, and the same effect is Young v. Lyons, 8 G. 162, 168; compare Watkins v. Worthington, 2 Bl. 509, 522-525. In Byers v. McClanahan, 6 G. & J. 250, 258, it was said that the general rule is "where a debt is joint and several the plaintiff must bring each of the debtors before the court, because they are entitled to the assistance of each other in taking the account; another reason is that the debtors are entitled to a contribution where one pays more than his share of the debt." 2 Brian v. Thomas, 63 Md. 476, 481-482. 3 Brian v. Thomas, 63 Md. 476, 482, citing Story, Eq. PI. sec. 169; "Carroll v. Waring, 3 G. & J. 491, 500, per Bland, Ch. In Brian v. Thomas, 63 Md. 476, 480-483, a guardian died owing his ward certain money and leaving an estate insufficient for its payment. A. B. and.C. were sureties on the guardian's, bond. Of these, A. was dead, having in his life-time conveyed all his property to his two children by voluntary conveyances. B. was also dead, leav- ing a widow and children, and C. died after obtaining his discharge under the insolvent laws. A bill was filed by the ward, to have the voluntary deeds set aside and to have the property subjected to the payment of her claim. The administrator of the deceased guardian, and the widow and children of B. were joined as parties defendant with the grantees under the voluntary deeds. It was held that to prove the extent of the guardian's default, his administrator was a proper, if not a necessary, party to the suit. "Conceding for the sake of the argument, that the widow and children of the other deceased surety are not necessary parties to the suit, still we see no impropriety in making them such." It might appear that the deceased husband left property, and that the plaintiff was entitled to recover from the widow and children the property thus received. If such be the case the court could so frame the remedy as to secure contribution from the defendants and at the same time give them a decree against the ad- ministrator of the guardian, thus working out complete justice be- tween all the parties; compare Stem v. Cox, 16 Md. 533, 537-538. In Clagett v. Worthington, 3 G. 83, 94, it was said that in a suit by a party seeking to recover against one of several sureties in a trus- 7;5 Parties. § 59-60 in taking an account of what is due if the defense fails, and that the decree in that event may be primarily against him for payment, and that the amount may be conclusively fixed for which he will be liable over to the surety, if the surety should be compelled to pay the debt. 4 §60. Exception in case of insolvency. — An exception to the rule is that in the case of a joint and several bond if one of the obligors, either a principal or surety, is- insolvent, he need not be made a party. 1 The fact of insolvency must be dis- tinctly alleged, and not be left to inference, and must be proved. 2 tee's bond, where it does not appear that a certain deceased co-surety died insolvent, his personal representatives must be made parties. In O'Hara v. Shepherd, 3 Md. Ch. 306, 316, it was said of the trustee in insolvency of a principal on a guardian's bond: "His ab- sence presents an insuperable objection to adjudicating the question as between the ward and the parties to the bond of the first guardian. To any account between the ward and the surety in that bond, the principal or the trustee of the principal, he being insolvent, is a neces- sary party;" but see post, sec. 60. 4 Robertson v. Carson, 19 Wall. 94, 105; see also Carroll v. Waring, 3 G. & J. 491, 500, per Bland, Ch. ; Watkins v. Worthington, 2 Bl. 509, 522-523; Story, Eq. PI. sec. 169. 1 Young v. Lyons, 8 Gill, 162, 168, citing Story, Eq. PI. sec. 169; in this case five obligors on a bond, who had paid the obligation, sued one of the other sureties for contribution. The defendant objected that the other sureties and the personal representative of the principal were not made parties. The court held that if the other sureties and the principal's personal representative were insolvent, there was no ne- cessity for making them parties. It was, however, held that the allega- tion of insolvency as to the sureties was not definite enough to justify their omission from the bill; but that the averment of the insolvency of the principal was sufficient. In Griffith v. Parks, 32 Md. 1, 4, the estate of B., a surety on a guardian's bond, was being sold for distribution under a decree; the wards of the guardian intervened, alleging that the guardian was in debt to them, that he was insolvent, and that the other surety on the bond had died insolvent. Upon these facts the court held that the right of the wards to proceed against the funds of the estate of B. to obtain payment was clear; and that it was not essential that either the guardian or the representatives of the deceased surety should be made parties; citing Young v. Lyons, 8 G. 168, and Story, Eq. PI. sec. 168; compare O'Hara v. Shepherd, 3 Md. Ch. 306, 316; Watkins v. Worth- ington, 2 Bl. 509, 523; Coombs v. Jordan, 3 Bl. 284, 296-297. 2 Clagett v. Worthington, 3 G. 83, 94; compare Dart v. Palmer, 1 § 60-61 Parties. 74 Making such persons parties would be a wholly nugatory and unavailing act. 3 §61. The equity rule.— The principles above stated are however subject to the provisions of the equity rule that in all cases where the plaintiff may have a joint and several claim or demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such claim or demand all the persons liable thereto; but the plaintiff may proceed against one or .more of the persons severally liable. But the defend- ant may at once proceed by petition in the nature of a cross- bill, against such party as is liable jointly with him, and such party shall be permitted to make himself a party to the original cause, and defend the same, and the proceedings in the original cause shall after the service of such petition be conclusive as to such other party and if he shall appear thereto the same shall be conducted as if he had been made a party thereto in the first instance. 1 Barb. Ch. (N. Y.) 92, 96-97, in which it was said that the representa- tive of a certain person might be a necessary party "notwithstanding the allegation that he died insolvent. For that does not imply that he died entirely destitute of property, but only that his property was not sufficient to pay all his debts in full. The proper allegation in a bill where it is sought to excuse the complainant for not making the representatives of a deceased person parties to a suit, is that the de- cedent died insolvent and without leaving any assets for the payment of his debts." 3 Byers v. McClanahan, 6 G. & J. 250, 258; in this case the plaintiff sued the defendant to compel him to contribute his proportion of the money paid by the plaintiff to satisfy a debt for the payment of which they were joint sureties together with certain other persons, all of which latter, as also the principal, were insolvent. The defendant objected that there was a want of proper parties, and that the other sureties and the principal should be joined. The court said that only on two grounds could it be contended that they ought to be parties; either for the pur- pose of assisting in taking the account or for making contribution towards the plaintiff's indemnity; and held that on neither ground was it necessary to make them parties; the account being proved by a certain witness; and as the omitted persons were insolvent it was not necessary for them to be parties. 'Equity rule 31; code, art. 16, sec. 159; compare U. S. equity rule 51. 75 Parties. § 62-63 §62. Bill to foreclose ; plaintiffs.— All persons having an interest in the mortgage debt and who may be affected by the decree, should be made plaintiffs. 1 If the mortgagee alone has any interest, he is the only necessary party plaintiff; similarly with the assignee of the mortgage. 2 If the mort- gagee is dead, his personal representatives should bring the bill. 3 There can be no foreclosure unless all the persons en- titled to the whole mortgage money are before the court; thus a person entitled to a part only of the outstanding mortgage debt cannot file a bill to foreclose as to his own part of the money only; all the other persons in interest must be made parties. 4 Special statutory provisions regulate the foreclosure of mortgages in Baltimore city under an assent to a decree for sale, 5 and throughout the State under a power of sale. 6 §63. Bill to foreclose ; defendants. — All persons hav- ing an interest in the equity of redemption of real estate should be made parties defendant to a bill of foreclosure, whether they 1 Story, Eq. PI. sees. 199-202; Beach, Eq. Pr. sec. 73. See in general Jones on Mortgages, sees. 1368-1393. 2 Whitney v. McKinney, 7 Johns. Ch. 144, 146-147; as in Oliver v- Caton, 2 Md. Ch. 297, 298; compare McElderry v. Shipley, 2 Md. 25, 35. 3 In Worthington v. Lee, 2 Bl. 678, 684-685, it was held that upon the death of the mortgagee it was necessary to make both his heirs and personal representatives parties; since changed as to the heirs by stat- ute; 1833, ch. 283; see code, art. 16, sec. 156; Harnickell v. Orndorff, 35 Md. 341, 342-343- In Lannay v. Wilson, 30 Md. 536, 552, it was held that where a mortgage is made to several persons to secure the payment of a debt due to them jointly, and one of the mortgagees dies, the survivors may foreclose, and it is not necessary to make the heir or personal repre- sentative of the deceased mortgagee a party. 4 Story, Eq. PL sees. 199-202; Daniell, Ch. Pr. 212; Tyson v. Apple- gate, 40 N. J. Eq. 30s, 311; Hotel Co. v. Wade, 97 U. S. 13, 21. As to the representation of bondholders by a trustee in the fore- closure of mortgages, see ante, sec. 36. For an interesting case upon foreclosure by a receiver, see Tyson v. Applegate, 40 N. J. Eq. 305; and compare Kirkpatrick v. Corning, 38 N. J. Eq. 234. *Post, sec. 476. *Post, sec. 461- §63 Parties. 76 be the original mortgagors, 1 or their grantees, 2 heirs or devi- sees, 3 or otherwise interested. 4 If the mortgaged property- is leasehold estate, the personal representatives of the deceased mortgagor should be made parties. In case of assignment by the mortgagor of his entire interest, the assignee only should be made a party, 5 the mortgagor in such cases being neither a necessary or proper party, unless he has warranted the title 1 Kunkel v. Markell, 26 Md. 390, 407; see the suggestion here that the insolvency of the mortgagor may excuse his being made a party; and compare Worthington v. Lee, 2 Bl. 678, 680-685, upon the general subject of defendants in foreclosure cases; and see Jones on Mort- gages, sees. 1394-1442. In Terrell v. Allison, 21 Wall. 289, 292-293, it is said that the owner of the property at the time suit is brought for foreclosure, whether he be the original mortgagor or his successor in interest is an indispensable party. A decree without his being made a party will not bind him or parties claiming under him, although the latter may have acquired their interests after suit; see also Howard v. Mil- waukee R. Co., 101 U. S. 837, 848-849; Daugherty v. Deardorf, 107 Ind. 527, 528; and compare Fitzhugh v. McPherson, 9 G. & J. 51, 75; Cunningham v. Macon, &c, R. Co., 109 U. S. 446, 457. 2 Story, Eq. PI. sec. 197; Hefner v. Northwestern Ins. Co., 123 U. S. 747, 755; see Robertson v. Carson, 19 Wall. 94, 105-106. 3 Worthington v. Lee, 2 Bl. 678, 683-684; Story, Eq. PL sec. 193. 4 Story, Eq. PL sees. 193-198, and sec. 175; compare Kunkel v. Mar- kell, 26 Md. 390, 407; an instance is in Brown v. Hardcastle, 63 Md. 484, 485-488; and see Chambers v. Chalmers, 4 G. & J. 420, 443. In Christian v. Atlantic, &c, R. Co., 133 U. S. 233, 244, the court said: "A bill will not lie to effect a foreclosure and sale, or to obtain possession of, property belonging to the State; and for the very plain reason that in such a case the State is a necessary party, and cannot be sued. This was distinctly held by this court in Cunning- ham v. Macon, &c, R. Co., 109 U. S. 446." As to beneficiaries in a trust estate subject to a mortgage, see U. S. Trust Co. v. Roche, 116 N. Y. 120, 130; Johnson v. Robertson, 31 Md. 476, 491. Persons who claim adversely to both the mortgagor and mort- agee cannot be made parties with a view to settling their rights in the foreclosure case; Dial v. Reynolds, 96 U. S. 340, 341; Hefner v. North- western Ins. Co., 123 U. S. 747, 751-756; Wilkins v. Kirkbride, 27 N. J. Eq. 93, 95. The personal representative of a deceased mortgagor of real estate need not be a party defendant; Worthington v. Lee, 2 Bl 678 684. 6 Worthington v. Lee, 2 Bl. 678, 681-682; Story, Eq. PL sec. 197; see Oliver v. Caton, 2 Md. Ch. 297, 299. 77 Parties. § 63 to his assignee, or unless a personal judgment is sought against him; 7 but if the mortgagor has not been legally di- vested of his entire interest, he should be made a party. 8 If a mortgage is made by a husband and wife, the latter is a neces- sary party defendant in a bill to foreclose. 9 6 Robertson v. Carson, 19 Wall. 94, 105. In Worthington v. Lee, 2 .Bl. 678, 683, it was said that a mort- gagor whose equity of redemption had been sold under execution has an interest in the stating of an account, fixing his indebtedness, which required him to be a party. In Ayres v. Wiswall, 112 U. S. 187, mortgagors of land sold to various persons parts of the mortgaged property; a bill of foreclosure was filed against the mortgagors and all their grantees, praying for a sale and a decree against the mortgagors for the balance due after foreclosure. In Johnson v. Hambleton, 52 Md. 378, 380, the mortgagor, the assignee of the equity of redemption, the subsequent incumbrancers and their assignees were made parties. 7 Miner v. Smith, 53 Vt. 551, 552-553; compare Ayres v. Wiswall, 112 U. S. 187, 191-192. 8 Worthington v. Lee, 2 Bl. 678, 682; in this case a mortgagor's inter- est had been sold under execution; it was held that he might put the validity of this sale in issue by an action of ejectment; and hence he should be made a party as well as the purchaser at the sale; compare Kunkel v. Markell, 26 Md. 390, 407. 9 Johns v. Reardon, 3 Md. Ch. 57, 59, 65. In Pruden v. Williams, 26 N. J. Eq. 210, a mortgage had been made from P. to the plaintiff. Afterwards P. conveyed to W., who conveyed to A, who conveyed to B., who conveyed to K., each grantee covenanting to pay the mortgage debt. The plaintiff foreclosed, making only K. a defendant, she being the then owner. There was a deficiency and the plaintiff sued W., A., B. and K. for its amount. It was held that W., A. and B. were not necessary parties to the fore- closure suit, although they would have been proper parties, being liable for any deficiency. It was also held that P., the original mort- gagor, was not a necessary party to the deficiency suit, as with respect to him, those who assumed the mortgage debt stand in the position of principal, and he as surety. In Oliver v. Caton, 2 Md. Ch. 297, 302, a mortgagor had leased for ninety-nine years a part of the mortgaged land and the lessee had entered into possession. In a bill to foreclose the mortgage the tenant was not made a party. It was urged that the tenant claiming title under the person against whom the bill was filed was not a necessary party, as his rights were represented by the mortgagors before the court. But it was held that if it was intended to conclude the rights of such tenant, he must be made a party; and it is not unusual if the existence of their rights is suggested to the court at the hearing, to § 64 Parties. 78 §64. Specific performance. — In cases of specific per- formance 1 the general rule is that only those persons are proper parties who are parties to the contract or those who have been substituted in their place, as executors or heirs. 2 This general rule, however, has been somewhat enlarged in its scope. 3 If a purchaser assigns his entire interest in the con- frame the decree in such a manner as to expressly guard them from prejudice; Daniell, Ch. Pr. 263; compare also Light St. Co. v. Bannon, 47 Md. 129, 144; Thruston v. Minke, 32 Md. 571, 575. In Robertson v. Carson, 19 Wall. 94, 105-106, the bill was filed by a beneficiary to set aside a transaction by which the trustee loaned trust funds to B. on a mortgage, and afterwards released the mortgage; the property was then conveyed by B. to third parties, who mortgaged it to H. It was alleged that the release of mortgage was fraudulent, and that the debt was never paid by B. "If these allegations are maintained, the whole amount of the debt will be rehabilitated against B. He is en- titled to an opportunity to repel these imputations and to protect him- self if he can do so. His vendees are entitled to his aid. His defense is their defense. * * * The general rule is that a mortgagor who has parted with his interest in the mortgaged premise's need not be a party in a suit for foreclosure, unless he has warranted the title to his assignee. Whether there were such warranty by B. or not, we hold him to be an indispensable party by reason of the circumstances of the case;" citing, among other cases, Worthington v. Lee, 2 Bl. 678, 682; Ducker v. Belt, 3 Md. Ch. 13. H. the mortgagor was not made a party. "If he shall not be made a party and the complainants shall be successful, his rights will not be affected by the decree. In such case he can file a new and independent bill and renew the litigation as to all the questions touching the prior mortgage which are involved in this controversy. The complainant has the option to make him a party or to proceed without him and take the hazard of the consequences." iSee in general Pomeroy on Specific Performance, sees. 482-498; Waterman on Spec. Perf. sees. 50-87; Fry on Spec. Perf. sees. 165-269. 2 Johns Hopkins University v. Middleton, 76 Md. 186, 207; Crook v. Brown, 11 Md. 158, 172; Story, Eq. PI. sec. 226 b; Calvert on Parties, 291; Beach, Eq. Pr. sec. 71; Daniell, Ch. Pr. 230. See also Washburn Co- v. Chicago Co., 109 111. 71, 85-86; Willard v. Tayloe, 8 Wall. 557, 571-572. 3 Pomeroy, Spec. Perf. sec. 483; the rule restricting the proper par- ties to the suit to the original parties to the contract has been well settled in England; but in the United States the general doctrine is that "all persons who are interested in the enforcement of the con- tract must be, and those directly and specifically interested in the sub- 79 Parties. §64 tract of purchase, his assignee may sue the vendor; the as- signor is a proper party to such a suit.* If the vendor conveys the property to a purchaser with notice, the latter is a necessary party defendant. 5 The beneficiaries of trustees with power of sale who contract to sell, are not proper parties, not being parties to the contract. 6 An agent contracting in his own name is a necessary party to a bill by his principal. 7 The receiver of a corporation is the only necessary party defendant to a suit to enforce a contract of the corporation. 8 If the purchaser be dead, and the vendor sues for specific performance, the personal representative of the purchaser must be a party because the personal assets are primarily liable for the debt; 9 ject-matter may be joined as parties;" see the instances; compare the present English practice; Fry on Spec. Perf. sees. 165, 192-195. In Crook v. Brown, 11 Md. 158, 170, the purchaser sued the heirs of the vendor. It appeared that some third person had an interest in the property through the purchaser. The court said that if this third person purchased the property from the purchaser, the third per- son might proceed in equity against the other parties to obtain the legal title; "but it does not follow that when a purchaser files a bill against his vendor, the assignee or vendee of the complainants (pur- chaser) must necessarily be a party, merely because he has an interest in the property." It was, however, held that "all these parties may be said to be proper and necessary as having an interest in the sub- ject-matter of controversy." In Worthington v. Lee, 61 Md. 530, 536, it was said that the court cannot decree specific performance against parties, and enjoin legal proceedings by them, upon the mere assertion that they make some claim, whether that claim be well founded at law or not. See the facts in Powell v. Young, 45 Md. 494; Maughlin v. Perry, 35 Md. 352, 358; Crook v. Brown, 11 Md. 158, 172; Reynolds v. Howard, 3 Md. Ch. 331, 333- *Pomeroy, Spec. Perf. sec. 487; see ante, sees. 45, 46; see also Maughlin v. Perry, 35 Md. 352, 356. sPomeroy, Spec. Perf. sec. 493; as in Maughlin v. Perry, 35 Md. 352, 357; compare Smoot v. Rea, 19 Md. 398, 412; Light St. Co. v. Bannon, 47 Md. 129, 144; Coleman v. Applegarth, 68 Md. 21, 26. "Johns Hopkins University v. Middleton, 76 Md. 186, 207. 'Penna. R. Co. v. Ryerson, 36 N. J. Eq. 112, 116; Fry on Spec. Perf. sec. 258; Daniell, Ch. Pr. 196-197. "Express Co. v. Railroad Co., 99 U. S. 191, 199- »Story, Eq. PI. sec. 177; Calvert on Parties, 292-295; Beach, Eq. Pr. sec. 71; Daniell, Ch. Pr. 285. The heirs or devisees of the purchaser are also necessary parties § 64-65 Parties. 80 and the heirs or devisees also, because the conveyance must be made to them. 10 If the purchaser dies and the heirs of the purchaser sue the vendor, the personal representative of the purchaser should also be a party, for the heirs are en- titled to have the contract primarily paid out of the personal estate. 11 If on the other hand the vendor be dead, and his personal representatives seek a specific performance against the purchaser, the heir or devisee of the vendor should be a party, for he alone is competent to convey title. 12 And if the vendor be dead, and the purchaser seeks a specific performance, the heirs or devisees of the vendor should be made parties. 13 65. Partners. — Whenever a suit is brought by or against partners, all of them must be joined in the suit either as plaintiffs or defendants. 1 Thus in a bill for an account of a partnership, all the partners are necessary parties. 2 If one partner who would be a defendant dies, a bill to recover a joint debt against the personal representatives of the deceased must join the surviving partner; 8 but if the suit be against the surviving partner, the personal representatives of the deceased need not be made a party. 4 if the bill seeks to enforce a lien for the purchase money; Story, Eq. PI. sec. 177. 10 Pomeroy, Spec. Perf. sec. 496. "Pomeroy, Spec Peri. sec. 488; compare McKay v. Broad, 70 Ala. 377-378. 12 Pomeroy, Spec. Perf. sec. 490; Story, Eq. PI. sec. 160; see Morgan v. Morgan, 2 Wheat. 290, 298. By code, art. 93, sec. 81, the executor or administrator of a per- son who has sold real estate and died before receiving the purchase money may convey the real estate to the purchaser upon payment of the purchase money. 13 As' in Crook v. Brown, n Md. 158; Hubbard v. Johnson, 77 Me. 139, 141 ; in this latter case the plaintiff alleged that he had paid the purchase money and prayed for an account; the administrator of the vendor was held a necessary party. 1 Story, Eq. PI. sees. 167 and 178; see Fowle v. Torrey, 131 Mass. 289, 291 ; Palmer v. Stevens, 100 Mass. 461, 466. 2 McKaig v. Hebb, 42 Md. 227, 231; Bank v. Carrollton R. R., 11 Wall. 624, 630; Story, Eq. PI. sec. 218. 3 Story, Eq. PI. sec. 167; compare Pierce v. Tiernan, 10 G. & J. 253, 266. 4 Harwood v. Jones, 10 G. & J. 404, 421; a head note to this case SI Parties. § 66 §66. Tenants and lessees.— In a bill filed for sale of a ground rent for purposes of partition subject to a lease- hold estate, it is not necessary to make the owners of the leasehold parties, as the sale cannot affect their interests. 1 So in a similar proceeding for sale of real estate, tenants in pos- session of the property, holding only from year to year are not proper parties, as they are not affected by the decree of sale, the purchasers taking the property subject to their rights. 2 But occupying tenants and lessees claiming title under the party against whom a decree passes must be made parties if it is intended to conclude their rights thereby, and if the existence of their rights is suggested to the court at the hear- ing it will so frame the decree as to protect them. 3 A sub- lessee may be restrained from violating the stipulations of an original lease, without making the original lessee a party. 4 states: "All partnership property and responsibilities upon the death of one partner survive to the survivor; and in a bill in chancery in relation thereto it is not necessary to make the personal representative of the deceased partner a party." iBrendel v. Klopp, 69 Md. 1, 6; see in general Daniell, Ch. Pr. 200- 3ii, 263. 2 Thruston v. Minke, 32 Md. 571, 575; it is also said here that, "in cases of partition if one tenant in common has demised his undivided share in the estate for a long term, it is necessary that the tenant should be made a party to the bill in order that he may be required to join the lessor in the deed of severance; but in a case like the pres- ent, where a sale is to be made of the estate, no such necessity could ex- ist." 3 OHver v. Caton, 2 Md. Ch. 297, 302; the proceeding here was for the foreclosure of a mortgage; prior to the suit the mortgagor leased a portion of the land for ninety-nine years, and an assignee of the lease- hold was not made a party. It was held as above that if his rights were sought to be concluded, he should be joined;- compare Griffith v. Hammond, 45 Md. 85, 88-89. 4 Maddox v. White, 4 Md. 72, 79. In Boyle v. Peabody Heights Co., 46 Md. 623, 630, a sub-lease was made to G. who assigned the leasehold to the plaintiff. The lease contained a covenant for renewal, to compel the execution of which the bill was filed. The plaintiff also claimed the correction of a mis- description in the lease to G. It was held that the plaintiff was not entitled to relief upon the latter ground without making G. a party and requiring him to be united in the new lease, by which the erroneous description might be corrected. In Tongue v. Morton, 6 H. & J. 21, 24, it was held that in a pro- 6 § 67 Parties. 82 §67. In other cases. — In proceedings for the sale of real estate, all persons who by any possibility, may be entitled to an interest are proper parties, in order that a clear market- able title may be made to the purchasers; 1 a decree directing a trustee to sell and convey property free from the claims of the parties to the suit, and those claiming under them, does not affect the interest of one who is not a party to the pro- ceeding. 2 In a suit for partition, all the tenants in common are indispensable parties. 3 In vendor's lien- cases the heirs of the purchaser, if it is an intestate estate, and the devisees if it is devised, are necessary parties.* In a proceeding to va- cate a sale of land the purchaser, or in case of his death, his heirs must be made parties. 6 In a bill to enforce a mechanics' lien against houses which have been sold to a third person, the latter is an indispensable party. ceeding for the sale of land, a person in possession of the land claim- ing adversely to the parties to the decree, and which person was not a party to the decree, could not be affected by the proceedings, and could not be removed until this title was adjudged to be defective in the usual way; affirmed in Frazer v. Palmer, 2 H. & G. 469, 473; see the first mentioned case examined in Oliver v. Caton, 2 Md. Ch. 297, 301. Compare Mayor, &c, v. Chase, 2 G. & J. 376, 381, as to the necessity of making a tenant in possession of real estate a party to a petition to enforce payment of taxes, the tenant being chargeable with the payment of the tax. J Handy v. Waxter, 75 Md. 517, 523-524; compare Ridgely v. Igle- hart, 6 G. & J. 49, 53-54; Davis v. Clabaugh, 30 Md. 508, 511; Krone v. Linville, 31 Md. 138, 145. 2 Bowen v. Gent, 54 Md. 555, 570. 3 Freeman on Cotenancy, sec. 463; Barney v. Baltimore, 6 Wall. 280, 285. See also Dugan v. Mayor, &c, 70 Md. 1, 7. In Claude v. Handy, 83 Md. 225, 236, a partition case, it was said that the object of making the executors (of one of the cotenants) par- ties was evidently to bind them by the decree, as was done in Thruston v. Minke, 32 Md. 571. In Mitchell v. Farrish, 69 Md. 235, 238, it is intimated that in a sate for partition case it is not necessary to make the wife of a co-tenant a party; and see the cases cited. 4 Story, Eq. PI. sec. 177. See also Sewall v. Costigan, 1 Md. Ch. 208, 210; Fisher v. Shrop- shire, 147 U. S. 133, 145-146. "Buchanan v. Torrance, 11 G. & J. 342, 346. "Ortwine v. Caskey, 43 Md. 134, 136; and see Stem v. Cox, 16 Md. 533, 538-539. 83 Parties. § 68 Parties in the federal courts. §68. ^imitations upon jurisdiction.— In the federal courts certain peculiar rules governing the subject of parties have arisen, owing to the limited jurisdiction of those tribunals. The constitution provides that the judicial power of the United States shall extend to controversies "between citizens of dif- ferent States," 1 by which is meant controversies in which the parties on one side are all citizens of different States from those on the other side. 2 This limitation upon their juris- diction prevents the trial of cases in which all the plaintiffs are not citizens of different States from all the defendants. In the next place, until a somewhat recent statute, the federal courts could not obtain jurisdiction over real or personal property by publication, so that it was impossible to acquire control over non-residents. 3 In order to minimize the in- conveniences and embarrassments resulting from these two limitations upon their jurisdiction, the federal courts have sought to modify the general rule as to par- ties, without impairing the fundamental principle that no court can adjudicate upon a person's rights unless that person be actually or constructively a party. They have accom- plished this modification by declaring in effect that they will decree in spite of the absence of some parties in interest, pro- vided a proper decree can be passed without affecting the rights of those not before the court; 4 following and extending 1 U. S. Constitution, art. 3, sec. 2. A consideration of the principles governing the subject of par- ties in the federal courts seems desirable here, although, of course, the matter is outside of the scope of this volume, as a local work. 2 'Blake v. McKim, 103 U. S. 336, 337; Foster, Fed. Pr. sec. 18. 3 Act of Congress, approved June 1, 1872; Rev. Stat. sec. 738; act of Congress, approved March 3, 1875, ch. 137, sec. 8; Foster, Fed. Pr. sec. 97. 4 In Mallow v. Hinde, 12 Wheat. 193, 197, it was said: "It is contended that the rule which prevails in courts of equity generally that all the parties in interest shall be brought before the court, that the matter in controversy may be finally settled, ought not to be adopted by the courts of the United States, because from the peculiar structure of their limited jurisdiction over persons, the application of the rule in its full extent would often oust the court of its acknowl- edged jurisdiction over the persons and subject before it. It is true this equitable rule is framed by the court of equity itself and is sub- § 68-69 Parties. 84 the rulings of other courts upon this point 5 With these ideas in view, parties in the federal courts have been di- vided into three classes; first, formal parties; second, neces- sary parties ; and third, indispensable parties. t §69. Formal parties. — Formal parties are those who have no interest in the controversy between the immediate litigants, but have an interest in the subject-matter which may be conveniently settled in the suit, and thereby prevent further litigation. They may be parties or not at the option of the plaintiff. 1 This class of parties is the same as the class of for- mal or nominal parties in the State courts, and the same rules apply to each. 2 ject to its sound discretion. Accordingly this court, in Elmendorf v. Taylor, io Wheat. 167, has said: 'That the rule which requires that all persons concerned in interest, however remotely, should be made parties to the suit, though applicable to most cases in the courts of the United States, is not applicable to all. In the exercise of its discre- tion the court will require the plaintiff to do all in his power to bring every person concerned in interest before the court. But if the case may be completely decided, as between the litigant parties, the cir- cumstance that an interest exists in some other person, whom the process of the court could not reach, as if such party be a resident of some other State, ought not to prevent a decree upon its merits.' " B See ante, sec. 28. *In Williams v. Bankhead, 19 Wall. 563, 571, the above language is used in reference to formal parties. It is also said: "The general rule as to parties in chancery is that all ought to be made parties who are interested in the controversy in order that there may be an end of litigation. But there are qualifications of this rule, arising out of pub- lic policy and the necessities of particular cases. The true distinction appears to be as follows:" "First (indispensable parties) : Where a person will be directly affected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case is sub- ject to a special rule." "Second (necessary parties): Where a person is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached." 2 In Barney v. Baltimore, 6 Wall. 280, 284, it is said: "There is a class of persons having such relations to the matter in controversy, merely formal or otherwise, that while they may be called proper 85 Parties. §70 §70. Necessary parties.— Necessary 1 parties are those who have an interest in the controversy, but whose interests are separable from those of the parties before the court, and will not be directly affected by a decree which does complete and full justice between them. Such persons must be made parties if practicable in obedience to the general rule which requires all persons to be made parties who are interested in the controversy, in order that there may be an end of liti- gation; 2 but the rule in the federal courts is that if they are parties, the court will take no account of the omission to make them parties." "There is another class of persons whose relations to the suit are such, that if their interest and their absence are formally brought to the attention of the court, it' will require them to be made parties if within its jurisdiction, before deciding the case. But if this cannot be done, it will proceed to administer such relief as may be in its power, between the parties before it." "And there is a third class, whose interest in the subject-matter of the suit, and in the relief sought, are so bound up with that of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to entertain the suit, when these parties cannot be subjected to the jurisdiction." See also Shields v. Barrow, ly How. 130, 139; for instances of formal parties, see ante, sec. 25. ^he use of the word "necessary" in this sense is unfortunate, being liable to confuse. "Necessary" is almost synonymous with "indis- pensable;" Century Dictionary, vol. 4, p. 3951; vol. 3, p. 3063; Web- ster, Unabridged Dictionary; and worse, "necessary" as used in the federal courts is entirely different in meaning from "necessary" as used in the State courts, where it generally means "indispensable." 2 Chadbourne v. Coe, 10 U. S. App. 78, 83; it is also said in this case that the general rule is that persons falling within the definition of nec- essary parties must be brought in for the purpose of putting an end to the whole controversy; and this is the rule in most of the State courts. But in the federal courts this rule has been relaxed. The relaxation re- sulted from two causes; first the limitation imposed upon these courts by the citizenship of the parties; and second by their inability to bring in parties out of their jurisdiction by publication. The extent of the relaxation of the general rule in the federal courts is expressed in the 47th equity rule, declaratory of the previous decisions of the supreme court upon the subject. In Foster, Fed. Pr. sec. 52, it is said that it is difficult to mark the limits between this and the third class of parties, who are indis- pensable. The class of necessary parties includes those "having an § 70 Parties. 86 beyond the jurisdiction of the court, or if making them parties would oust the jurisdiction of the court, the case may proceed to a final decree between the parties before the court, leaving the rights of the absent parties untouched. 3 interest in the controversy so far separable from that of those before the court that a decree can be made and enforced which disposes of the matter in dispute between the latter without affecting their rights." 3 In California v. Southern Pacific Co., 157 U. S. 229, 249-250, the court quotes from Shields v. Barrow, 17 How. 130, 139, in which latter the case of Russell v. Clarke, 7 Cranch, 69, 98, is referred to as pointing out three classes of parties to a bill, as follows : "1. Formal parties. 2. Persons having an interest in the con- troversy and who ought to be made parties, in order that the court may act on that .rule which requires it to decide on, and finally deter- mine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed neces- sary parties; but if their interests are separable from those of the par- ties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a na- ture that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good con- science." These latter are termed indispensable parties. In Vattier v. Hinde, 7 Pet. 252, 263, it is said that it is the settled practice, if the case can be decided on its merits between those who are regularly before the court, to decree as between them. Although other persons, not within the court's jurisdiction, may be collaterally or incidentally concerned, who must have been made parties had they been amenable to its process, this circumstance shall not expel other suitors who have a constitutional and legal right to submit their case to the court; provided the decree may be made without affecting their interests. In Elmendorf v. Taylor, 10 Wheat. 152, 166, which was a suit to compel the conveyance of land, the validity of the plaintiff's entry was established, but it was contended that he was a tenant in common with others and ought not to be permitted to sue in equity without making his co-tenants parties to the suit. "This objection does not affect the jurisdiction, but addresses itself to the policy of the court." In Mallow v. Hinde, 12 Wheat. 193, 198, it is said of this case: "In that case, the right of the party before the court did not depend upon the right of the party not before the court; each of their rights stood upon its own independent basis." In Shields v. Barrow, 17 How. 130, 140, it is said: "As to par- ties having a substantial interest but not so connected with the con- 87 Parties. §71 §71 . Indispensable parties. — Indispensable 1 parties are those who not only have an interest in the subject-matter of the controversy, but an interest of such a nature that a final decree cannot be made without either affecting their interests, or leaving the controversy in such a condition that its final de- termination may be wholly inconsistent with equity.- A per- son is affected by a decree when his rights against, or lia- bility to, any of the parties to the suit is thereby determined. 3 troversy that their joinder is indispensable, see Cameron v. McRoberts, 3 Wheat. 591; Osborn v. Bank, 9 Wheat. 738; Harding v. Handy, 11 Wheat. 132." For various instances (some not very clear) see Foster, Fed. Pr. sec. 52. J The term "indispensable parties'' has perhaps the same meaning in the federal courts as the term "necessary parties" has in the State courts. 2 Chadbourne v. Coe, 10 U. S. App. 78, 83; this case illustrates the rule. The plaintiff alleging himself to be a creditor of W., sued to set aside certain conveyances by W. to C, as in fraud of the plaintiff as creditor; and that the property be sold. C. was a party, but W. by rea- son of his being out of the jurisdiction, was not a party. The court said that to entitle the plaintiff to relief the court must find and de- cree that W. was indebted to the plaintiff; that W. was insolvent; that the deed from W. to C. is fraudulent; that a certain agreement be- tween W. and C. is fraudulent; that the land be sold for the payment of the debt of W. "In the judicial determination of every one of these issues, W. is an indispensable party." ^Foster, Fed. Pr. sec. 53. In Barney v. Baltimore, 6 Wall. 280, 284-285, it was held that tenants in common in real estate, of which partition is asked in equity, have an interest in the subject-matter of the suit, and in the relief sought, so intimately connected with that of their co-tenants, that if these cannot be subjected to the jurisdiction of the court, the bill will be dismissed; see Freeman on Cotenancy, sec. 463. In Mallow v. Hinde, 12 Wheat. 193, 198, it was urged that the case could be properly decided without making parties of certain per- sons interested in the litigation, as the interests were separate. But the court said: "The complainants have no rights separable from and independent of the rights of persons not made parties. The rights of those not before the court lie at the very foundation of the claim of right by the plaintiffs, and a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties. We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of eauity, whatever may be their structure as to § 72 Parties. 88 §72. legislation and equity rule.— In a previous section 1 it has been stated that an exception to the general rule exists when a person who should be a party is beyond the jurisdiction of the court; and that such person may be omitted from the case if his interests would not be affected by the decree. In the federal courts this matter has been made the subject of statutory provision, declaratory 2 of the exception, authorizing jurisdiction. We put it on the ground that no court can adjudicate directly upon a person's right, without the party being either actually or constructively before the court;" quoted, in part, in California v. Southern Pac. Co., 157 U. S. 229, 249; and see Shields v. Barrow, 17 How. 130, 141. In Christian v. Atlantic, &c, R. Co., 133 U. S. 233, 243-246, and Cunningham v. Macon, &c, R. Co., 109 U. S. 446, 451-457, the classes of cases in which a State is not an indispensable party, although some interest of it may be more or less affected by the decision, are stated and distinguished. In Shields v. Barrow, 17 How. 130, a contract of compromise was made between the plaintiff and his debtor and the six endorsers of the latter's promissory notes, by which contract the liability of each endorser was agreed upon. The plaintiff sued to set aside the con- tract, making two of the endorsers parties, and omitting the debtor and the other endorsers, because they were citizens of the same State as the plaintiff, and could not, therefore, be sued in the federal court. The suit was held fatally defective, as the omitted persons were indis- pensable parties, and not merely necessary parties. "They had such a direct and immediate interest in the contract of compromise, and that interest was so entire and indivisible, that without their presence no decree on the subject could be made." In Coiron v. Millaudon, 19 How. 113, 115, a sale of mortgaged premises in Louisiana was made under proceedings in insolvency, and the heirs of the insolvent filed a bill to set aside the sale on the ground of irregularity. The mortgagees had been paid their share of the proceeds of sale and had an interest in upholding the sale. They were, therefore, indispensable parties, and the fact that they were be- yond the jurisdiction of the court is not a sufficient reason for omit- ting to make them parties. Neither the act of Congress of 1839, nor rule 47 of the supreme court enable the court to make a decree in their absence. Other instances are in Ribon v. Railroad Cos., 16 Wall. 446; Williams v. Bankhead, 19 Wall. 563; Robertson v. Carson, 19 Wall. 94; Hoe v. Wilson, 9 Wall. 501; and see Foster, Fed. Pr. sec. 53. 1 Sec. 27. 2 Barney v. Baltimore, 6 Wall. 280, 286; Shields v. Barrow, 17 How. 130, 140-142. 89 Parties. § 72 the court, in case some of the defendants are beyond the reach of process, to adjudicate the suit between those who are parties to it, without concluding or prejudicing those who are not parties. 3 The act relates solely to the non-joinder of persons not within the reach of the process of the federal court. 4 The equity rules of the supreme court of the United States also bear upon the subject, and enlarge the power previously exercised by providing that the court may proceed with the cause if necessary or proper parties are absent by reason of their being out of the jurisdiction, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court. 5 But notwithstanding the act of congress, and the equity rule, the court cannot proceed to a decree if a de- cree between the parties to a suit so far involves or depends upon the rights of an absent person, that complete and final justice cannot be done between the parties to the suit without affecting the rights of the absent person. In other words the act does not authorize the court to decree in the absence of an indispensable party, but only in the absence of a necessary or proper party. Neither the act nor the rule attempt to ; Act of Congress of February 28, 1839; Rev. Stat. sec. 737; this provides that where "in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within the district where the suit is brought or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties, not regularly served with process, or not voluntarily appearing to answer; and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement, or other objection to said suit." "Shields v. Barrow, 17 How. 130, 141; it does not affect any case where persons are not joined because of want of the required citizen- ship; see also Foster, Fed. Pr. sec. 50; Beach, Eq. Pr. sec. 58. 5 U. S. supreme court rule 47 provides as follows: "In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without § 72-73 Parties. 90 displace the. principle that no court can adjudicate directly upon a person's rights without his being actually or construct- ively before the court. 6 Miscellaneous. §73. Non-joinder; apparent or not on the face of the bill. — If the objection of want of necessary parties ap- pears on the face of the bill, the defendant may raise the point by demurrer, or by plea, or answer, or at the hearing. 1 making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties." 6 Shields v. Barrow, vj How. 130, 141, quoted in California v. South- ern Pacific Co., 157 U. S. 229, 250-251, in which it was held, in reference to this rule, that it was "only a declaration, for the government of practitioners and courts, of the effect of the act of Congress and of the previous decisions of the court on the subject of that rule." And it was said: "It remains true, notwithstanding the act of Congress and the 47th rule, that a circuit court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person, that complete and final justice cannot be done between the parties to the suit without affecting those rights. To use the lan- guage of this court, in Elmendqrf v. Taylor, 10 Wheat. 152, 167-168: 'If the case may be completely decided, as between the litigant par- ties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such party be a resident of another State, ought not to prevent a decree upon its merits.' But if the case cannot be thus completely decided, the court shall make no decree." To' the same effect are Gregory v. Stetson, 133 U. S. 579, 587; Coiron v. Millaudon, 19 How. 113, 115; Barney v. Baltimore, 6 Wall. 280, 286; Ribon v. Chicago, &c, R. Co., 16 Wall. 446, 450; Swan Co. v. Frank, 148 U. S. 603, 611; Greeley v. Lowe, 155 U. S. 58, 70. 1 Hawkins v. Chapman, 36 Md. 83, 99; Rebecca Owings' case, 1 Bl. 290, 292; Binney's case, 2 Bl. 99, 105; Gregg v. Mayor, &c, 14 Md. 479, 487, 489, approved in Holthaus v. Nicholas, 41 Md. 241, 267; Carey v. Brown, 92 U. S. 171, 172-173; Wilson v. Bellows, 30 N- J. Eq. 282, 284; Story, Eq. PL sees. 75, 236, 541; Beach, Eq. Pr. sec. 78; Foster, Fed. Pr. sec. 61; Dahiell, Ch. Pr. 287. The demurrer should point out the objection, so as to enable the plaintiff to amend by making the proper parties; a form of such demurrer is given in Story, Eq. PI. sec. 543, note; Dias v. Bouchaud, 10 Paige, (N. Y.), 445, 454. The objection may also be made by the court sua sponte; Story, Eq. PL sec. 75; Gregg v. Mayor, &c, 14 Md. 479, 488. In Pierce v. Tiernan, 10 G. & J. 253, 266, an agreement was 91 Parties. § 73-74 But if the absence of necessary parties does not appear on the face of the bill the objection must be made by plea or answer, setting forth the facts by which other persons named therein are made necessary or proper parties. 2 If no objection is made by the defendant, the court should sua sponte in the absence of an indispensable party, cause the bill to be amended; or should dismiss it without prejudice if the amendment be not made after opportunity given. 3 §74. Non -joinder; when made by the answer or at the hearing. — When the objection is made by the an- swer, it is now provided by the equity rules that where the de- fendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fifteen days after answer filed, to set down the cause for argu- ment upon that objection only. And if the plaintiff shall not set down the cause, but shall proceed therewith to a hearing, notwithstanding the objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the de- fendant's objection for want of parties be then allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties; but the court or judge thereof may, if it be thought fit, dismiss the bill. If, however, the cause be set down upon the objection taken, and, upon hearing, the objec- tion be allowed, the plaintiff shall have liberty to amend, upon paying the cost of amendment. 1 In case of an objection for want of proper parties made for made that no exception should be taken on account of the want of parties. 2 Carey v. Brown, 92 U. S. 171, 173, citing Story v. Livingston, 13 Peters, 359, 375; Schwoerer v. Boylston, 99 Mass. 285, 295; Daniell, Ch. Pr. 290. See also Jones v. Slubey, 5 H. & J. 372, 383- 3 Hoe v- Wilson, 9 Wall. 501, 504; as in Sixth, &c, Assn. v. Willson, 41 Md. 506, 508, 515, at the hearing. 1 Equity rule 35; code, art. 16, sec. 163; "the clerk at the instance of the plaintiff, shall make entry thereof in his docket in the following form: 'Set down upon the defendant's objection for want of parties.' " U. S. equity rule 52, from which the Maryland rule is taken, is sub- stantially the same, omitting, however, the last clause. A similar rule adopted in England, in 1841, (order 39, of August, 1841,) has since been abolished; Daniell, Ch. Pr. 290, 291, note. § 74 Parties. 92 the first time at the hearing of the cause, 2 the English chancery orders of 1841 allowed the court to make a decree saving the rights of the absent parties. 3 This rule has been adopted in the federal courts, 4 and has been also embodied in the equity rules. If the court sees that a person whose interests must be involved in a decree which it may be called upon to pass has not been made a party to the suit, it will even at the hearing suspend its proceedings until he has been brought in as a party. 6 . The purpose of the rule may be attained by having the necessary parties brought before the court at any time before the final decree is passed in the cause, 7 and when all 2 If the omitted parties are merely formal the court will be indis- posed to listen to the objection at the hearing, and if it can properly do so will dispose of the case upon its merits without requiring such formal parties to be joined; Story, Eq. PI. sec. 542. (So, also, where the objection is to a misjoinder; Trustees v. Wilkinson, 36 N. J. Eq. 141, 145). When delayed to the hearing, the objection receives far less favor from the court, and its allowance is said to depend to some extent upon sound discretion; Schwoerer v. Boylston, 99 Mass. 285, 2 95; Winans v. Graves, 43 N. J. Eq. 263, 277; the court may refuse to sustain the objection or to require the plaintiff to add new parties at that stage; Dias v. Bouehaud, 10 Paige, (N. Y.), 445, 459; the ob- jection will not prevail unless the defect be one that precludes a decree doing justice and determining the controversy; Miller v. Thompson, 34 Mich. 10, 12. 3 English chancery orders of 1841, 40; Story, Eq. PI. sec. 236, note; Daniell, Ch. Pr. 292. 4 U. S. equity rule 53; Foster, Fed. Pr. sec. 61. 5 Equity rule 34; code, art. 16, sec. 162: "If a defendant shall, at the hearing of the cause, object that the suit is defective for want of par- ties, not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court or judge thereof, if it be deemed proper, shall be at liberty to make a decree, saving the. rights of the absent parties, or may require the plaintiff to bring in such absent party, upon such terms as the court may prescribe as to costs." This section is almost exactly the same as the English and federal provisions. In Sixth Assn. v. Willson, 41 Md. 506, 508, 515, the objection was raised at the hearing sua sponte by the court; compare Hamilton v. Whitridge, 11 Md. 128, 148; Stewart v. Duvall, 7 G. & J. 179, 187. 6 Worthington v. Lee, 2 Bl. 678, 680; Lucas v. McBlair, 12 G. & J. 1, 16; Hoe v. Wilson, 9 Wall. 501, 504; compare Evans v. Iglehart, 6 G. & J. 171, 204; Canton v. McGraw, 67 Md. 583, 586. 'Lucas v. McBlair, 12 G. & J. 1, 16; Iglehart v. Lee, 4 Md. Ch. 514, 520. 93 Parties. § 74-75 the parties interested in the controversy are before the court, there can be no reason why a decree should not be made de- termining their rights as they appear in the case. 8 §75. Non-joinder; making the objection on appeal, — It is generally held that the objection may be raised for the first time in the appellate court. 1 If the court is unable to make a decree finally settling the case on account of the absence of such party, the cause may be remanded for the 8 Haugh v. Maulsby, 68 Md. 423, 427. It is also said that if it appears that proper parties have not been made, the bill should not be dismissed absolutely, but may be retained in order that proper parties may be brought in so that the case may proceed to a decree; Hunt v. Wickliffe, 2 Peters, 201, 215; Mallow v. Hinde, 12 Wheat. 193, 198.; Sears v. Hardy, 120 Mass. 524, 531; Daniell, Ch. Pr. 287, note. In Lucas v. McBlair, 12 G. & J. 1, 16, it was said: "The objec- tion that the State ought to have been a party to the proceeding is of no avail at the present stage of the suit. In other words it is no ground upon which to claim a dissolution of the injunction. If, a, necessary party to the cause, that defect may be supplied at any time before the final hearing;" and that the object of the general rule as to parties may be attained by having the necessary parties brought before the court at any time before final decree; compare Gregg v. Mayor, &c, 14 Md. 479, 506, per Tuck, J. In some cases the bill may be dismissed without pre- judice; House v. Mullen, 22 Wall. 42, 46; Kendig v. Dean, 97 U. S. 423, 426; Swan Co. v. Frank, 148 U. S. 603, 612; Story, Eq. PI. 236. In Bank v. Carrollton R. Co., 11 Wall. 624, 631, it is said: "It is doubtless the general rule that a bill in chancery will not be dismissed for want of proper parties ; but the rule is not universally true. It rests upon the supposition that the fault may be remedied, and the necessary parties supplied. When this is impossible and whenever a decree can- not be made without prejudice to one not a party, the bill must be dismissed. Nothing is to be gained by retaining it when it is certain that the complainant can never be entitled to a decree in his favor." Compare Shields v. Barrow, 17 How. 130, 142; Ribon v. Railroad Com- panies, 16 Wall. 446, 450. In Lusk v. Thatcher, 102 111. 60, 62-63, it was said that where it appeared from the bill that under any kind of a bill that could be framed there could be no relief against the defendants on account of the absence of a necessary party, the bill may be dismissed; and it is not incumbent on the court in such case to retain the bill for the proper parties to be brought in. iHoe v.' Wilson, 9 Wall. 501, 504; Coiron v. Millaudon, 19 How. 113, §75-76 ' Pakties. 94 purpose of bringing him in. 2 But if no objection be taken at the hearing, and if the omission to make a person a party can- not prejudice any interest of his, or any right of the parties to the suit, the omission affords no ground for refusing relief on appeal. 3 Under the provisions of our code relating to appeals, however, no defendant shall make any objections to the juris- diction of the court below, unless it shall appear by the record that such objection was made in said court. 4 §76. Misjoinder. — The misjoinder of plaintiffs is a valid objection to a bill, 1 if properly taken by demurrer or an- 115; Jewett v. Tucker, 139 Mass. 566, 577; compare Stewart v. Duvall, 7G. &J.179, 187-188. 2 Iglehart v. Lee, 4 Md. Ch. 514, 520; Hoe v. Wilson, 9 Wall. 501, 504; Gregg v. Mayor, &c, 14 Md. 479, 506. See also post, sec. 348. In McLaughlin v. Van Keuren, 21 N. J. Eq. 379, 381, the court said that the defendants having failed to make the objection at an earlier stage of the cause, "it is not for their protection that this ques- tion will now be entertained, but because the court cannot, with the parties here present, make a decree" which would finally settle the case. 3 Keller v. Ashford, 133 U. S. 610, 626; in this case the bill was filed by a mortgagee against a grantee of the mortgaged premises to com- pel payment of the mortgage debt by him, the grantee having ac- cepted the property under a covenant with the mortgagor to pay the mortgage debt. There were no other parties. The court said that the mortgagor might properly have been made a party to the bill, but that under the principle in the text, the omission to make him a party afforded no ground for refusing relief. In Bridges v. McKenna, 14 Md. 258, 270, the court said: "How- ever proper it would have been, according to the established rules of practice to make the husband a party defendant in the cause, we think the decree ought not to be reversed by reason of such an objec- tion urged for the first time in the appellate court. The proceedings clearly show that in this case, he would be a mere nominal or formal party, and the non-joinder of such a party will often be dispensed with, if entire justice can be done without him." See Story, Eq. PI. sec. 229. 4 Code, art. 5, 'sec. 35; see post, sec. 340. iHouse v. Mullen, 22 Wall. 42, 45-46; in this case the suit was brought by three persons, only one of whom appeared to have any interest in the case; upon demurrer, the bill was dismissed below, but on appeal the cause was remanded with leave to amend, in default of which the bill to be dismissed without prejudice. Compare Clason v. Lawrence, 3 Edw. Ch. (N. Y.) 48, 53;' see 95 Parties. ' §76 swer. 2 The point cannot generally be raised for the first time at the hearing, for if the court proceeds to a hearing upon the mer- its it will be disregarded, at least if it does not materially affect the propriety of the decree. 3 The objection cannot be raised for the first time on appeal. 4 If a bill make a person a de- fendant who should not be a party, the bill may t>e dismissed as to such party, and proceed as to the others." One defendant cannot object that another defendant, having no interest in the suit, is improperly made a party; the objection can only be made by the party improperly joined. 6 But the joinder of persons as parties to the suit, who, if they had been omitted, could not have been deemed necessary parties, furnishes no ground of objection to the bill. 7 When an objection to a bill for misjoinder of parties is sustained, it settles nothing but that the suit cannot progress in that condition. The court will give leave to amend; 8 but if parties will not or cannot amend so as to remove the difficulty the court will go no further, but will dismiss the bill. Such a dismissal does not however conclude either party, not being a decision upon the Beach, Eq. Pr. sec. 79; Foster, Fed. Pr. sec. 62; Story, Eq. PI. sees. 237, 544- In Ellicott v. Ellicott, 2 Md. Ch. 468, 472, it was held that if par- ties having interests several and distinct sue together as co-plaintiffs, the objection must be taken by demurrer. 2 By demurrer if the defect is apparent on the face of the bill; by plea or answer if not; Story, Eq. PI. sec. 237. 3 Crain v. Barnes, 1 Md. Ch. 151, 154-iSS; Story v. Livingston, 13 Peters, 359, 375; Talmage v. Pell, 9 Paige, (N. Y.), 410, 412; Trustees v. Wilkinson, 36 N. J. Eq. 141, 145; Story, Eq. PI. sec. 544. ^Livingston v. Woodworth, 15 How. 546, 557- 5 Rebecca O wings' case, 1 Bl. 290, 292; Binney's case, 2 Bl. 99, 108- 109. 6 Beach, Eq. Pr. sec. 80; Foster, Fed. Pr. sec. 62. In Cherry v. Monro, 2 Barb. Ch. 618, 627, it is said: "It is only where the complainant has some ground of relief against each defendant, and where his claims for relief against them respectively are improperly joined in one suit, so as to make the bill multifarious, that each defendant has the right to demur upon the ground that the other defendants are improperly joined with him in the suit." Com- pare White v. White, 4 Md. Ch. 418, 424, in which the defendant demurred. 7 Story, Eq. PI. sees. 221, 229, 542. "Story, Eq. PI. sec. 237. §76-77 ' Parties. 9» merits, and the plaintiffs are at liberty to bring another bill. 9 These principles are however modified by the provisions of the equity rule that it shall not be necessary to dismiss the entire bill or petition in any suit because simply of the mis- , joinder of parties; but the court may dismiss the bill or petition, as to such of the parties plaintiff or defendant as may be im- properly joined. 10 §77. Intervention; definition and nature. — Interven- tion is the process by which in a pending suit, a stranger to the litigation claiming an interest therein, is permitted to in- terpose and assert his claim. 1 It is the act of a person, not a party to a suit, by which he, of his own motion with the consent of the court becomes a party. The third person may be per- mitted to unite with the plaintiff against the defendant, 2 or with the defendant against the plaintiff, 3 or may claim against both.* No one can be allowed to intervene unless he has an interest "House v. Mullen, 22 Wall. 42, 46. "Equity rule 33; code, art. 16, sec. 161. 'On the general subject of intervention in equity and under the code procedure, see Pomeroy on Remedies, sees. 411-431; Beach, Eq. Pr. sees. 571-580; Foster, Fed. Pr. sees. 201-202; Daniell, Ch. Pr. 287, note; Smith v. Gale, 144 U. S. 509, 517-521. No one but a party to a suit can make any motion in it except for the purpose of being made a party; Linn v. Wheeler, 21 N. J. Eq. 231, 241. In Pomeroy on Remedies, sec. 411, it is said in reference to the system under the code procedure: "The fundamental notion is that the person ultimately and really interested in the result of a litigation — the person who will be entitled to the final benefit of the recovery — may at any time, at any stage intervene and be made a party so that the whole possible controversy shall be ended in one action and by a single judgment." And in sec. 431: "The only possible objection is the multiplication of issues to be decided in the one cause and the confusion alleged to result therefrom. This objection is not real; it is the stock argument which was constantly urged in favor of re- taining the common law system of special pleading, and was repudiated when the codes were adopted by the American States, and has been at last utterly repudiated in England;" see the code provisions in sec 413. 2 As in the ordinary creditors' bill for the sale of the real estate of a deceased debtor; post, sec. 538. s As where a stockholder intervenes in an action against the corpora- tion; post, sec. 79. 4 Krippendorf v. Hyde, no U. S. 276, 282-284. 97 Pakties. §77 in the subject-matter or object of the suit. 5 In a suit in rem persons not parties may have such interest and may there- fore be allowed to intervene;" but in a suit in personam a stranger can have no interest in a legal sense entitling him to intervene. 7 5 See Pomeroy on Remedies, sec. 429, regarding the interest required to authorize intervention under the code system of pleading; com- pare Griffith v. Hammond, 45 Md. 85, 88; Isaac v. Emory, 64 Md. 333, 338; Smith v. Gale, 144 U. S. 509, 518. 6 In Harris v. Hooper, 50 Md. 537, 548, it was said that the judgment creditor of a mortgagor might intervene in a foreclosure suit under a prior mortgage, and claim satisfaction out of the proceeds of sale, if any remained after paying the amount due on the mortgage. In Warfield v. Ross, 38 Md. 85, 90, it was held that under the provisions of code, art. 66, entitled "Mortgages," no person whose interest would not be affected by the sale, would be allowed to inter- vene. In Carroll v. Kershner, 47 Md. 262, 276, the opinion in War- field v. Ross, 38 Md. 85, 90, was quoted, and the decision was followed in the analogous case of proceedings to foreclose under Baltimore city mortgages. Under code, art. 66, sec. 12, relating to the foreclosure of mort- gages, any person claiming an interest in the equity of redemption, may apply to have the surplus of the proceeds equitably applied and distributed. This is analogous to the right existing on the part of subsequent holders of liens in regard to sales in chancery under the usual modes of proceeding; Leonard v. Groome, 47 Md. 499, 504-505. See post, sec. 471, note, and sec. 518. 7 Coleman v. Martin, 6 Blatchf. 119, 120; in this case it was said that in a suit in rem a person having a claim upon, or other interest in, the res, may intervene. "But in a suit in personam a person not a party to the suit can have no interest in a legal sense in a personal claim made in the suit against a defendant therein, unless it is necessary that such person, not a party, should be made a party in order to properly en- force such claim." In Postal Co. v. Snowden, 68 Md. 118, 123, a decree was passed determining the ownership of certain property to be in A. as against B. Then a simple contract creditor of B. prayed to be admitted as a party in the cause for the purpose of asserting the title of B. to the property, so that his claim could be paid out of the assets. The cred- itor had no lien on the property, nor title to it. In a remote and indefinite way every creditor may be considered as interested in the property of his debtor. But where a person in possession of property is engaged in a bona fide litigation concerning it, a simple contract creditor can in no case whatsoever become a party to the suit. In § 78-79 Parties. 98 §78. Intervention ; trust cases. — In suits brought by trustees, or otherwise affecting trust property, the beneficiaries of the trust are frequently allowed to intervene. 1 Thus in a suit to foreclose a mortgage on a railroad, a holder of bonds may intervene and contest the allowance of commissions to the trustee; 2 or otherwise take part in the proceedings; 3 so in a fore- closure of a second mortgage, the senior mortgagee has been allowed to intervene. 4 It is now provided that in all suits con- cerning real or personal estate, where under the rule a trustee represents the persons beneficially interested under the trust, it shall not be necessary to make such persons parties to the suit; but any person interested may, upon his own applica- tion, be allowed to come in and be made a party to such pro- ceeding, and the court or judge thereof may upon consideration of the matter on the hearing, if it should be deemed proper, order such persons, or any of them, to be made parties. 5 §79. Intervention; stockholders. — As a general rule it is said that in suits brought by or against a corporation, stockholders may be allowed to intervene if there is any dan- ger of their being injured by fraud, neglect or collusion on the part of the officers; but the decided cases seem to include in- stances of intervention where the interest of the stockholder is the only reason assigned. 1 cases not affected by fraud or insolvency there is no reason why he should interpose concerning his debtor's property, and certainly the law gives him no power to do so. The petition was, therefore, dis- missed; compare Stretch v. Stretch, 2 Tenn. Ch. 140, 145-146.- iStory, Eq. PI. sec. 208; Beach, Eq. Pr. sec. 574; Stretch v. Stretch, 2 Tenn. Ch. 140, 142; Foster, Fed. Pr. sec. 201. 2 Williams v. Morgan, in U. S. 684, 699. 3 See ex parte Jordan, 94 U. S. 248, 249-250. *Tome v. King, 64 Md. 166, 173-174. 5 Equity rule 32; code, art. 16, sec. 160. [§79-J 1 In Washington R. Co. v. Southern R. Co., 55 Md. 153, 154, a bill was filed by creditors against a railroad corporation for the ap- pointment of a receiver and the sale of the railroad. "The State of Maryland, being largely interested by reason of a subscription to the stock of the defendant railroad company, was allowed to intervene as a party to the proceedings." In Gregg v. Mayor, &c, 14 Md. 479, stockholders applied to be 99 Parties. § 80 §80. Intervention; creditors.— Where there is a fund in court for distribution, a person, not a party to the suit, may if all the necessary parties are before the court, intervene and assert his right to the whole or any portion of the fund, by way of petition. 1 But a person claiming a fund distributed made parties defendant to a bill against a corporation desiring to effect the dissolution of an injunction preventing the payment by the corporation of a stock dividend to its stockholders. The petition to. be made parties was dismissed, the court below holding that per- sons omitted could not object that they were omitted as parties. On appeal the decree below was affirmed by a divided court, but it was held that before final decree the petitioners ought to be heard as parties, and if they were not heard, the decree would be of no avail as to them; the general principles expressed by the lower court in this case were approved in Holthaus v. Nicholas, 41 Md. 241, 267; compare Cole- man v. Martin, 6 Blatchf. 119, 120. In Glenn v. Williams, 60 Md. 93, 116, it is said that in an ordinary action against a corporation to recover a debt, if the stockholders are allowed to intervene at all it can only be through and in the name of the corporation. In Wagner v. Cohen, 6 G. 97, 104, after a sale of the property of a corporation under a decree a shareholder excepted to the sale and afterwards filed a petition praying for an injunction restraining the purchaser from using the property; the court said that although the right which the stockholder held in the property was merged in the decree he retained an interest in the proceeds of sale, and was interested in the preservation of the estate out of which the fund was to arise, and was, therefore, entitled to file the proceeding. In Bronson v. R. Co., 2 Wall. 283, 301-302, a defendant cor- poration was summoned, but did not appear, whereupon two stock- holders not made defendants by the bill, were permitted by leave of the court below to appear and put in answers in the name of the cor- poration; such answers were not regarded as answers of the corpora- tion, but of the stockholders; but were considered by the court; see also Forbes v. Memphis R. Co., 2 Woods (U. S. C. C), 323; com- pare Beach, Eq. Pr. sec. 575. 1 Clagett v. Worthington, 3 G. 83, 95-96; Griffith v. Parks, 32 Md. 1, 4; Foster, Fed. Pr. sec. 201. In Griffith v. Parks, 32 Md. 1, 4, B., a surety on the guardian bond of G., died, and a suit was brought for the sale of B.'s real estate for the payment of his debts, &c. The proceeds being in court, a peti- tion was filed by the wards of G., alleging the insolvency of G. and pray- ing that the amount due them might be paid out of the funds of B., the surety, in court. It was held that the procedure by petition was proper and that an original bill was not necessary. In Wingert v. Gordon, 66 Md. 106, 109, an attorney was em- § 80 Parties. 100 to a party, must not only prove that he is a creditor of such . party, but must show that he is remediless at law, or that he has some lien or title to the fund sought, which it is the duty of the court to enforce. 2 L ployed by husband and wife to conduct a case and secure a fund be- longing to the wife, with the understanding that he should be paid out of the fund recovered. On their refusal to pay the same (the fund being in court) the attorney intervened in the case by petition, praying that the fund be charged with the debt to him. It was held that this method was proper and that he need not proceed by original bill. In Boteler v. Brookes, 7 G. & J. 143, 155, there was has answered an original bill, is entitled to be notified of an amended bill by service of process or publication, before he can be called upon to answer the amended bill. 8 It is now provided by the equity rule that where such amendment is made, and new facts are introduced, and the case is thus varied in any material respect, the defendant shall be at liberty to answer anew, or to plead, Pr. 64, note x, in which it is said: "The answer of an infant cannot be excepted to, because in consequence of his legal disability to defend himself, he answers by another, and is not bound by that answer. And as a feme covert is presumed to be so far under the dominion of her hus- band that she is not bound by her answer made jointly with him, it would seem that her answer should be equally above exception." 1 Neale v. Hagthrop, 3 Bl. 551, 570; the defendant is as much bound to answer the amended bill as to answer each portion of the original bill itself; and upon his failure to answer, a decree pro confesso may be taken. 2 Boyd v. Harris, 1 Md. Ch. 466, 473; McKim v. Odom, 3 Bl. 407, 430. 3 Price v. Tyson, 3 Bl. 392, 400, 403; Thomas v. Visitors, 7 G. & J. 369, 387; in the latter case an original bill had been answered, and afterwards the prayer of the bill was amended, and new matter introduced; the de- fendant then without leave of court, filed another answer, in which without replying to the new matter, he essentially altered and new modeled the matter of the original answer; the court said that this proceeding could not be sanctioned. *Swan v. Dent, 2 Md. Ch. in, 116. B Fitzhugh v. McPherson, 9 G. & J. Si, 70. 8 McKim v. Odom, 3 Bl. 407, 430. §158-159 Answers. , 204 or demur to the bill as amended, within such time as the court, or judge thereof, may prescribe, after notice of the amendment made. 7 When a supplemental bill is filed for the purpose of bringing in a new party in interest, he alone should be made to respond to it. 8 And one of several defendants who has answered an original bill need not answer an amended bill when the points of amendment do not affect him in any way.' §159. Answers to interrogatories. — The interroga- tories in a bill being designed to compel a full answer to the matters contained in the bill, the defendant is obliged to an- swer them. 1 But it is not necessary for him to answer any interrogatory that is not founded on a matter contained in the bill. 2 It is now provided by the equity rule that either plaintiff or defendant shall be at liberty to decline answering any in- terrogatory, or part of any interrogatory, when he might have protected himself by demurrer from answering the subject of the interrogatory ; and he shall be at liberty so to decline, not- withstanding he shall answer other interrogatories from which he might have protected himself by demurrer. 3 The answer 'Equity rule 30; code, art. 16, sec. 150; the rule further provides that "notice may in all cases be given by service of a copy of the bill as amended, upon the defendant, or upon his solicitor, if there be one; or it may be by subpoena. The mode of proceeding in default of answer to the matter of the amendment shall be the same as that in default of answer to the original bill; and the proceeding on answer, plea or de- murrer, filed to the amended bill, shall be the same as that on answer, plea or demurrer to an original bill." Compare U. S. equity rule 46. 8 Cahvell v. Boyer, 8 G. & J. 136, 149. 9 Fitzhugh v. McPherson, 9 G & J. 51, 70. iGlenn v. Grover, 3 Md. 212, 226. The answers to the interrogatories were evidence in the same manner as the defendant's answer to the bill was evidence; Williams v. Banks, 11 Md. 198, 230; and see Powles v. Dilley, 9 G. 222, 236. 2 Story, Eq. PI. sees. 36, 853. 3 Equity rule 25; code, art. 16, sec. 144; the rule further provides that "upon such declination, the plaintiff or defendant may, on three days' notice, set down the matter for hearing before the court or judge thereof, as on an exception to the answer for insufficiency. But where the interrogatories are not fully answered, and no reason is assigned for the omission, the particular objection must be pointed out by ex- ception, to be filed and served, at least five days before the hearing of such exception. The plaintiff or defendant shall be at liberty, before 205 Answers. §159-160 should be full to all the interrogatories founded on the matters charged in the bill. 4 The interrogatories, and the answers thereto, are deemed part of the pleadings in the cause. Notice by service of copy, or otherwise, shall be given to the defend- ant, who shall answer within thirty days from the time of serv- ice, unless the time, for cause shown, be extended by special order; and answers may be compelled by attachment. 6 §160. Answer under oath as evidence; formerly taken as true. — Prior to the passage of the modern statutes, there was said to be no principle of practice better established than -the rule that the responsive averments in an answer of a defendant, under oath, should be taken as true unless disproved by two witnesses, or by one witness with corrob- orating circumstances. 1 The reason of the rule was stated to be that a plaintiff by calling on the defendant to answer the allegations in his bill upon oath, made the answer evidence; and as one witness would only be equivalent to the answer, answers to the interrogatories are filed, or pending exceptions, to file or require a replication and proceed to take testimony, without waiver of his right to such answers, or of his exceptions to the answers." Compare U. S. equity rule 44. 4 Wootten v. Burch, 2 Md. Ch. 190, 194. "Equity rule 24; code, art. 16, sec. 143. 1 Ringgo1d v. Ringgold, 1 H. & G. 11, 81; Neale v. Hagthrop, 3 Bl. SSI, 567; Salmon v. Clagett, 3 Bl. 125, 141; Stewart v. Duvall, 7 G. & J. 179, 188; Hopkins v. Stump, 2 H. & J. 301, 304; Roberts v. Salis- bury, 3 G. & J. 425, 433; Dilly v. Barnard, 8 G. & J. 170, 188; Thomp- son v. Diffenderfer, 1 Md. Ch. 489, 496; Rider v. Riely, 2 Md. Ch. 16, 19-21; s. c, 22 Md. 540, 544-546; Warren v. Twilley, 10 Md. 39, 47; Glenn v. Grover, 3 Md. Ch. 29, 34; Ing v. Brown, 3 Md. Ch. 521, 524; West v. Flannagan, 4 Md. 36, 57; Brooks v. Thomas, 8 Md. 367, 372; Gelston v. Rullman, 15 Md. 260, 267; Turner v. Knell, 24 Md. 55, 60. In Beatty v. Davis, 9 G. 211, 218, the answer of a defendant deny- ing that he executed certain transfers of property with the expectation of applying for the benefit of the insolvent laws — "a matter lying necessarily within his own bosom" — was held conclusive upon the question of intention, unless overcome by the testimony of two wit- nesses, or of one with corroborating circumstances; followed in Glenn v. Grover, 3 Md. 212, 229; Feigley v. Feigley, 7 Md. 537, 563; compare Brooks v. Thomas, 4 Md. Ch. 15, 17-18. The rule applies even where the equity of the plaintiff's bill §160 Answers. 206 and the plaintiff in order to prevail must have preponderating proof, it was necessary that he should have another witness, or circumstances in addition to the testimony of one, in order to turn the scales. 2 The rule was a privilege, given the de- fendant, of being his own witness. 3 An answer averring ig- norance of the matters alleged in the bill is not to be considered as evidence against the facts alleged in the bill, but the effect is to compel the plaintiff to produce evidence to support them. 4 Similarly an answer founded on hearsay, though deny- ing the plaintiff's equity, is not to be treated as an answer rest- ing upon personal knowledge, but is sufficient to put the plain- tiff upon the proof of the averments of the bill. 6 is grounded on fraud; Dilly v. Barnard, 8 G. & J. 170, 188; Glenn v. Randall, 2 Md. Ch. 220, 229. 2 Pennington v. Gittings, 2 G. & J. 208, 215; Dugan v. Gittings, 3 G. 138, 158. The circumstances should be pregnant with support of the com- plainant's case; West v. Flannagan, 4 Md. 36, 57. Pregnant or cor- roborating circumstances, standing alone, without the aid of the posi- tive testimony of a single witness, would be unavailing to overcome the denials in an answer; Roberts v. Salisbury, 3 G. & J. 425, 433; Glenn v. Grover, 3 Md. 212, 229; Ing v. Brown, 3 Md. Ch. 521, 524. a Glenn v. Grover, 3 Md. 212, 226; see the facts in this case. 4 Drury v. Conner, 6 H. & J. 288, 291; see also Phila. Trust Co. v. Scott, 45 Md. 451, 453; Harrison v. Annapolis R. Co., SO Md. 490, 512-513; Malcom v. Hall, 1 Md. Ch. 172, 176-177. Compare Doub v. Barnes, 4 G. 1, 20; Kent v. Ricards, 3 Md. Ch. 392, 397. °Doub v. Barnes, 1 Md. Ch. 127, 132. The principle of the general rule was not one of universal appli- cation. The cases to which it was intended to apply were those in which the facts denied by the answer depended on oral only, or oral and circumstantial, evidence. Thus, the rule did not apply where the facts were conclusively proved by the production of the written con- tract of the parties; nor would it apply in a certain other case given as an example by the court; Jones v. Belt, 2 G. 106, 122; compare Trump v. Baltzell, 3 Md. 295, 303; Brooks v. Thomas, 8 Md. 367, 372; Neale v. Hagthrop, 3 Bl. 551, 567; Farmers Bank v. Nelson, 12 Md. 35. 50, per Le Grand, C. J., dissenting. The answer of an executor or administrator in his representa- tive capacity which asserts a fact that is not and cannot be within his own knowledge, does not properly come within the rule, and is not entitled to the full influence of the answer of a man speaking of facts which may be within his own knowledge; Pennington v. Gittings, 2 G. & J. 208, 215-216; Dugan v. Gittings, 3 G. 138, 158; compare 207 Answers. §161 §161. Not evidence of matters in avoidance.— Matters in avoidance, however, were not embraced within the rule that the answer of a defendant under oath should be taken as true unless disproved by two witnesses, or by one witness with corroborating circumstances. Such matters in avoid- ance had to be proved independently of the statements in the answer; and unless sustained by proof, were entitled to no consideration at the final hearing of the cause. 1 Neale v. Hagthrop, 3 Bl. 551, 568; Malcom v. Hall, 1 Md. Ch. 172, 176-177; Tong v. Oliver, note case, 1 Bl. 198; Crain v. Barnes, 1 Md. Ch. 151, 158. But the rule applied, although the answer was made by a defendant deeply interested, or by one who was incompetent to tes- tify, or by a corporation; Salmon v. Clagett, 3 Bl. 125, 141. In Thompson v. Diffenderfer, 1 Md. Ch. 489, 495-496, it was urged that the defendants should be required to prove certain of the state- ments of the answer, though responsive to the bill, because such proof was within their reach, whilst it was inaccessible to the plaintiff; but it was held that the rule was not subject to this modification. The answer is received as evidence only, and although uncon- tradicted, it cannot be taken to establish anything in bar of the relief prayed, which parol testimony would not be admitted to prove; Jones v. Slubey, 5 H. & J. 372, 382; Winn v. Albert, 2 Md. Ch. 169, 176-177; and see Powles v. Dilley, 9 G. 222, 236; Neale v. Hagthrop, 3 Bl. SSI, 567; Pennington v. Gittings, 2 G. & J. 208, 215. In Story, Eq. PI. sec. 849 a, editor's note (6), it is said that an answer under oath is not evidence for the defendant within the rule requiring two witnesses, in the following cases: (1) as to new aver- ments, or matters in avoidance or discharge; (2) as to matters in respect to which the answer is absurd or contradictory in itself, or so sets forth the circumstances as to make the allegations of the bill more probable and entitled to greater credit; (3) where the answer is not direct, positive and unequivocal in its denials or explanations; (4) when the answer is on information arid belief; (5) where the de- fendant swears to matters of which he could not have personal knowl- edge; (6) when an answer under oath is discredited as to one point, its effect as evidence as to other points is impaired or de- stroyed; (7) when the defendant professes ignorance of any or all the matters alleged in the bill, the plaintiff is at most required only to prove such matters; (8) when the answer denies legal conclusions. 1 Gardiner v. Hardey, 12 G. & J. 365, 381 ; Hutchins v. Hope, 12 G. & J. 244, 257; Robinett v. Wilson, 8 G. 179, 182; Fitzhugh v. McPher- son, 3 G. 408, 429; Lingan v. Henderson, 1 Bl. 236, 271; Salmon v. Clagett, 3 Bl. 125, 141; Price v. Tyson, 3 Bl. 392, 405; Neale v. Hag- throp, 3 Bl. SSI, 568; Ringgold v. Ringgold, 1 H. & G. 11, 28, 81; Devries v. Buchanan, 10 Md. 210, 215; State v. Northern Central Co., §162 Answers. 208 §162. The rules changed by statute.— By the act of 1852, the general rule as above stated was changed, the act providing that the answr of a defendant should not be evi- dence against the plaintiff unless such answer be required by the plaintiff to be under path, or unless it be read as evidence at the hearing of the cause by the plaintiff. 1 The act was passed to afford the plaintiff an opportunity of relieving himself from the effect of the rule that an answer, even when regularly de- nied and proof demanded, was evidence for the defendant so far as responsive to the bill, and was such evidence as could not be overcome except by the testimony of two witnesses or of one sustained by corroborating circumstances. This rule was regarded as giving an improper advantage to the defend- ant, by reason of the influence on the case which the answer had as evidence. The act, however, was not intended to change the practice as regards the effect of an answer when a cause is heard upon bill and answer; 2 nor to apply to an answer at the hearing of a motion to dissolve an injunction, previous to the final hearing of the cause. 3 The act of 1852 was fol- lowed by the act of 1853, which provided, that the former statute should not apply to any bill or petition for discovery only; and made certain other provisions. 4 Under the pro- 18 Md. 193, 219; Cecil v. Cecil, 19 Md. 72, 82; Smoot v. Rea, 19 Md. 398, 408; compare Story, Eq. PI. sec. 849 a; Jones v. Belt, 2 G. 106, 120; Trump v. Baltzell, 3 Md. 295, 303. Winchester v. Balto., &c, R. Co., 4 Md. 231, 238. The act (1852, ch. 133,) provided that " no answer of any de- fendant to any bill or petition to be hereafter filed in the courts of equity in this State shall be evidence against the complainant or com- plainants, unless by the bill or petition such answer shall be required to be made under the oath of the respondent or respondents; or unless at the hearing of the cause the complainant or complainants shall read the answer as evidence, in which case it shall have the same effect as to the party reading the same, as if it had been required to be made under oath.'' 2 Warren v. Twilley, 10 Md. 39, 47-48; Taggart v. Boldin, 10 Md. 104, 114; Mickle v. Cross, 10 Md. 352, 360; Hall v. Clagett, 48 Md. 223, 236; equity rule 27; code, art. 16, sec. 147; post, sec. 163. ^Bouldin v. Mayor, &c, 15 Md. 18, 21-22; Gelston v. Rullman, 15 Md 260, 267; Dorsey v. Hagerstown Bank, 17 Md. 408. 412; post, sec. 597, note 1, and sec. 604. The act of 1853, ch. 344, provided that the act of 1852, ch. 133, should 209 Answers. §162-163 visions of these acts it was held that unless the bill called for an answer under oath, or unless the answer was read as evi- dence by the plaintiff, it could not, although sworn to, be con- sidered as evidence. 5 The cause was to be determined upon the averments of the bill and the testimony. The answer was not treated as evidence, and was only regarded as a pleading in the cause ; and might be looked to in order to ascertain the issues between the parties. 6 §163. The present code provisions ; equity rule. — The previous statutes were repealed by the adoption of the code of i860, 1 whose terms were only verbally changed in the code of 1888, 2 which latter provides that it shall not be neces- sary for any defendant to make oath to his answer unless re- quired by the plaintiff, nor shall any answer, whether sworn to or not, be evidence against the plaintiff at the hearing of the cause, unless the plaintiff shall read such answer as evidence against the defendant making the same; but this section shall not apply to motions to dissolve an injunction or to discharge a receiver. 3 Nor do these provisions apply to an answer in a petition for a writ of habere facias possessionem, 4 ' nor to plenary proceedings in the orphans' court. 5 And by the equity rules not apply to any bill or petition for discovery only; and that "'when- ever in any bill or petition, other than for discovery only, which has been since the passage of the aforementioned act or which shall here- after be filed in any court of equity of this State, the answer thereto shall not be required to be made under oath, such answer may be made without oath; and such answer without oath, if the bill or petition be not sworn to, or such answer under oath, if the bill or petition be sworn to, shall be of the same force and effect as evidence as such bill or petition''; and see Taggart v. Boldin, 10 Md. 104, 114. ■"•Winchester v. Balto., &c, R. Co., 4 Md. 231, 238; Hall v. Clagett, 48 Md. 223, 236. 6 Taggart v. Boldin, 10 Md. 104, 114; Dorn v. Bayer, 16 Md. 144, 152. 1 Code, i860, art. 16, sec. 103; Mahaney v. Lazier, 16 Md. 69, 73. 2 Code, 1888, art. 16, sec. 146. 3 As to the practice in answers under this last clause, see post, sees. 597 and 604. 4 Schaefer v. Amicable, &c, Co., 53 Md. 83, 89; see post, sees. 528- 533- , 5 Watson v. Watson, 58 Md. 442, 448. See also Polk v. Rose, 25 Md. 153, 160; Diffenbach v. Vogeler, 61 Md. 370, 378. 14 §163-164 Answers. 210 it is provided that if the plaintiff in his bill shall not require an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the an- swer of the defendant, though under oath, except such parts thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but an answer under oath may, nevertheless, be used as an affidavit, with the same effect as heretofore on a motion to grant or dissolve an injunction, to appoint or discharge a receiver, or on any other incidental motion in the cause. 6 §164. Affidavit to answer.— Under the present statute, it is not necessary for any defendant to make oath to his answer unless required by the plaintiff, except on motions to dissolve an injunction or to discharge a receiver. 1 When the oath is omitted from an answer that should be under oath, the answer is to be considered merely as a denial of the allegations in the "Equity rule 27; code, art. 16, sec. 147; compare U. S. equity rule 42; and see Smith v. Pattison, 84 Md. — . iCode, art. 16, sec. 146. Prior to the act of 1853, ch. 344, the answer was required to be under oath, and if this were omitted the plaintiff could treat the answer as a nullity and cause it to be taken off the file; Nesbitt v. Dallam, 7 G. 6 J. 494, 510; Binney's case, 2 Bl. 99, 109; Salmon v. Clagett, 3 Bl. 125, 165; Carroll v. Waring, 3 G. & J. 491, 495- The affidavit was made before a judge or justice of the peace; Snowden v. Snowden, 1 Bl. 55°. 551; in this case the ol.d English practice of issuing a commission to take an answer is described. If the plaintiff proceeded in the cause after an answer had been put in without oath, as if a regular answer had been filed, he was presumed to have waived the informality, and could not avail himself of it at any time thereafter; Nesbitt v. Dallam, 7 G. & J. 494, 510; Billingslea v. Gilbert, 1 Bl. 566, 567-568. The answer could be received by consent without oath, as was the common prac- tice, the consent being expressly given in writing by the plaintiff or his solicitor; ibidem; Alex. Ch. Pr. 61; Contee v. Dawson, 2 Bi. 264, 285. Under the provisions of the act and the code, the oath is not now neces- sary, unless required by the plaintiff; Mahaney v. Lazier, 16 Md. 69, 73. In Williamson v. Wilson, 1 Bl. 418, 433-434, an exceptant to an auditor's account prayed that the claimants might be ordered to an- swer the exceptions under oath; and it was so ordered. See also Story, Eq. PI. sec. 874. 1 211 Answers. §164-165 bill, putting the plaintiff to the proof of the allegations. 2 But it is also said that in such a case, the paper cannot be received as an answer at all; thus where a paper is offered as the an- swer of several, but is sworn to by one only, it is the answer of him alone who has made oath to it. 3 §165. Answer by husband and wife. — As a general rule when husband and wife are sued jointly in equity, the wife answers with her husband; and cannot answer separately without an order of court founded on special circumstances. 1 In certain instances she may obtain an order of court author- izing her to answer and defend the suit separately; thus where she claims in opposition to her husband, or lives apart from him, or disapproves of the defence which he wishes her to make. 2 So if the husband neglects to answer, the wife may get an order 2 Bouldin v. Mayor, &c, 15 Md. 18, 21. Finney's case, 2 Bl. 99, 109; Salmon v. Clagett, 3 Bl. 125, 165; see also Cove'r v- Stockdale, 16 Md. 1, 7-8. In Malcom v. Hall, 9 G. 177, 180, it was held that a denial in an answer under oath that an assignment for the. benefit of creditors was made with a view of an application for relief under the insolvent laws, though the answer came from the grantee and not the grantor, was sufficient to put the complainant upon his proof. iKrone v. Linville, 31 Md. 138, 146; Kerchner v. Kempton, 47 Md. 568, 589; in the latter case it is said that she is presumed to be so far under the dominion of her husband that she is not bound by her an- swer made jointly with him; citing Warner v. Dove, 33 Md. 579, 584. See also Story, Eq. PI. sec. 873; Daniell, Ch. Pr. 180-185; Beach, Eq. Pr. sec. 350. In Story, Eq. PI. sec. 71, it is said that if a married woman ob- stinately refuses to join in a defence with her husband, the latter may obtain an order to compel her to make a separate defence; in Kipp v. Hanna, 2 Bl. 26, 28, a married woman was attached for failure to answer. 2 Krone v. Linville, 31 Md. 138, 145, 147; Lingan v. Henderson, 1 Bl. 236, 270; in the former case, which was a proceeding for the sale of the wife's property, the court said it would have authorized a separate answer to be put in by the wife who had been divorced a mensa et thoro from her husband, and had been awarded all her property to be held by her separately; and although she had so answered without the leave of the court, the court ratified and sanctioned it. In Kerchner v. Kempton, 47 Md. 568, 590, it was said that ac- cording to the English authorities where husband and wife are defend- ants to a suit in chancery relating to personal property belonging to the §165-166 Answers. 212 allowing her to answer separately. 3 In some cases she may answer as a feme sole without an order of court; thus, where a married woman has secured a divorce a mensa et thoro from her husband, and has been awarded her property to be held as if there had been no marriage, she may in a suit concerning her property, answer separately. 4 §166. Answer by infants and non-sane persons.— An infant defendant answers either by his legal guardian, if there be such guardian within the jurisdiction of the court, or by guardian' ad litem. 1 His answer in this manner is not evidence against him; there would be great danger to the interests of the infant in permitting such an answer to be read against him, who from his tender years may know noth- ing of the contents of the answer put in for him by his guardian, or not be able to judge of it, or of its effect. In every case in which an infant is a defendant answering by his guardian, the plaintiff is to be put upon the proof of the material allega- wife, and they put in a joint answer, such answer may be read against them for the purpose of 'fixing them with the admissions contained in it; but where the subject matter relates to the inheritance of the wife, it cannot, and the facts relied on must be proved against them by other evidence. 3 As in a case stated in Lingan v. Henderson, I Bl. 236, 260. 4 Krone v. Linville, 31 Md. 138, 146. In Story, Eq. PI. sec. 71, it is said that a married woman may be made a defendant and answer as a feme sole, whenever the husband is plaintiflf in the suit and sues her as a feme sole; or he is an exile, or has abjured the realm, or is an alien enemy, &c. Equity rule 9; code, art. 16, sec. 124; Bush v. Linthicum, 59 Md. 344, 356. See also Daniell, Ch.Pr. 169-171; Story, Eq. PI. sec. 871. In White v. Joyce, 158 U. S. 128, 146, quoting Story, Eq. PI. sec. 871, it is said: "The answer of an infant being expressed to be made ,by his guardian, the general reservation at the beginning, the denial of combination, together with the general traverse at the conclusion, common to all other answers, are omitted. The reason of this is that an infant is entitled to every benefit, which can be taken by exception to a bill, although he does not make such reservation, or expressly makethe exception. He is also considered as incapable of entering into the unlawful combination; and his answer cannot be excepted to for insufficiency ; nor can any admission made by him be binding " _ In Bulkley v. Van Wyck, 5 Paige, 536, 537, it is said that an infant can never be compelled to become a witness against himself- he is not allowed to answer personally, and his answer by his guardian is 213 Answers. §166 tions in his bill. 2 An admission by his guardian is of no effect; before the court can act upon the matter, it must be satisfied of the truth of the material allegations of the bill by other means than the answer of the infants. 3 Attempts have been made to avoid the effect of the rule by making the infants appear as complainants rather than as defendants; but this a pleading merely, and not an examination for the purpose of discov- ery. 2 Kent v. Taneyhill, 6 G. & J. I, 3; the guardian ad litem is so ap- pointed as often to know nothing of the matter himself; too much caution cannot well be observed in guarding the rights of infants, not only against the improvident answers of honest guardians, but against the answers of such as may have sinister views; see Watson v. God- win, 4 Md. Ch. 25, 26; Benson v. Wright, 4 Md. Ch. 278, 279; nor, of course, are the answers of the adult defendants evidence to bind the infant; ibidem; and see Davis v. Helbig, 27 Md. 452, 466; Prutzman v. Pitesell, 3 H. & J. 77, 79; House v. Wiles, 12 G. & J. 338; Hammond v. Hammond, 2 Bl. 306, 351; Campbell's case, 2 Bl. 209, 220;. Stewart v. Duvall, 7 G. & J. 179, 189; Kingsbury v. Buckner, 134 U. S. 650, 680; Rieman v. Von Kapff, 76 Md. 417, 421. 3 Harris v. Harris, 6 G. & J. m, 114-115; Watson v. Godwin, 4 Md. Ch. 25, 26-27. Infants who are charged with being the heirs at law of a mortgagor of land are not affected by the answer of their guardian ad litem confessing that they are heirs. The answer is not evidence against them, and the facts of heirship, and that they claim as heirs, ought to be proved before the land in their possession is decreed to be sold; Stewart v. Duvall, 7 G. & J. 179, 189. In Berrett v. Oliver, 7 G. & J. 191, 207, it is said that it is the duty of the court to see that the rights of infants are not prejudiced or aban- doned by the answers of their guardians; compare Higgins v. Hor- witz, 9 G. 341, 344. In White v. Joyce, 158 U. S. 128, 145-146, a bill was filed for the sale of real estate, in which infants were interested, to satisfy a claim which was barred by the statute of limitations. The infants answered by guardian ad litem, submitting their rights to the protection of the court. It was held that it was the duty of the court to give the minors the benefit of the statute of limitations. The Maryland statute, under which the proceedings were had, provided that before real estate which had descended to minor heirs could be sold to pay debts of the ancestor, "it shall appear to the chancellor to be just and proper that such debts shall be paid by a sale." But in creditors' bills a decree may be had upon the consent of the guardian ad litem; and the answer of the guardian is conclusive; Hammond v. Hammond, 2 Bl. 306, 344, 352; Campbell's case, 2 Bl. 209, 225; Tessler v. Wyse, 3 Bl. 28, 62; compare White v. Joyce, 158 U. S. 128, 145-147. §166-167 Answers. 214 does not dispense with the necessity of proof of the allegations. 4 The answer of a non-sane person is made either by his com- mittee, if there be such committee within the -jurisdiction of the court, or by guardian ad litem? §167. Answers of executors and corporations. — If a defendant be charged in a representative capacity, such as that of executor, he may answer oh his belief, and show such pregnant circumstances as the foundation of his belief as to induce the court to. adopt and act upon it; 1 thus where an administrator is called upon to answer certain matters which appear to have rested exclusively within the knowledge of his intestate, it will be sufficient if he swears as he is informed and believes. 2 Although such an answer is not one that would, under the old rule, have required the testimony of two witnesses to overthrow it, yet it is sufficient to put the plaintiff to the proof of the allegations of his bill. 3 The answer of a corporation must be under an oath whenever the answer of an individual in a like case should be. An an- swer of a corporation not under oath, when an oath is required, has the same force and effect as the answer of an individual not under oath would have in a like case, and no other or greater.* The corporate seal does not take the place of an oath. The answer under the corporate seal establishes noth- 4 Watson v. Godwin, 4 Md. Ch. 25, 26-27; if this practice were to pre- vail, the rule of not decreeing against infants except upon proof, could in most cases be evaded; see also Benson v. Wright, 4 Md. Ch. 278, 279. 5 Equity rule 9; code, art. 16, sec. 124; Story, Eq. PL sec. 871; Dan- iel!, Ch. Pr. 176. 1 Salmon v. Clagett, 3 Bl. 125, 165. 2 Neale v. Hagthrop, 3 Bl. 551, 584; Coale v. Chase, 1 Bl. 136, 137; compare Tong vl Oliver, 1 BL 198, 199, note case. 8 Pennington v. Gittings, 2 G. & J. 208, 215-216; Dugan v. Gittings, 3 G. 138, 158; but when a case against an administrator is heard upon bill and answer, the answer is taken as true; Mickle v. Cross, 10 Md. 352, 360; see ante, sec. 160, note. *Md. Coal Co. v. Wingert, 8 G. 170, 174; Bouldin v. Mayor, &c, 15 Md. 18, 21; see also Beach, Eq. Pr. sec. 351; compare Salmon v. Clagett, 3 Bl. 125, 165. 215 -Answers. §167-168 ing more than a denial of the allegations of the bill, and is only equivalent to the answer of an individual, not sworn to. 5 §168. Answer of co-defendants. — Where there is more than one defendant, all may join in making answer to the bill, or they may answer separately, as they prefer. 1 A de- fendant may refer to and adopt as his own the answer of a co- defendant. 2 It is an established principle that the answer of one defendant cannot be read in evidence by the plaintiff against his co-defendant. The reason for this rule is that if the plaintiff be interested in establishing a fact by the evi- dence of a defendant, the latter should be examined as a witness by the plaintiff, and would thus be subject to the cross-examination of the co-defendant. To withhold from such co-defendant the privilege of cross-examination of a defendant whose answer is used against him, would be un- just, and this injustice would necessarily result from the practice of permitting the answer of one defendant to be read in evidence against a co-defendant. 3 The answer not being 5 Farmers Bank v. Nelson, 12 Md. 35, 49, per Le Grand, C. J., dis- senting; compare American Telephone Co. v. Pearce, 71 Md. 535, 539. In McKim v. Odom, 3 Bl. 407, 420, it is said that a corporation responds under its seal; compare George's Creek Co. v. Detmold, 1 Md. Ch. 371, 381; Alex. Ch. Pr. 61; Daniell, Ch. Pr. 735, note. Finney's case, 2 Bl. 99, 109; they may also make a joint and several answer; see also Story, Eq. PI. sec. 869. 2 Binney's case, 2 Bl. 99, no; Warfield v. Banks, 11 G. & J. 98, 101; the court will look at both, in determining whether a full answer has been made to the allegations of the bill. In Jones v. Magill, 1 Bl. 177, 198, it is said that a defendant has no direct means of enforcing an answer from his co-defendant; but he may urge forward the plaintiff to do his duty in that particular. A responding defendant may lay the plaintiff under a rule further pro- ceedings, 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. 3 Hayward v. Carroll, 4 If. & J. 518, 520-521; in this case the plaintiff claimed the benefit of a mortgage made by A. to B., who were de- fendants. B. admitted the execution of an assignment of the mortgage, from himself to the plaintiffs ; but A. denied the assignment and insisted on the extinguishment of the mortgage by the payment of the money. The fact of the assignment being thus put in issue by A., could not be proved by the admission of the fact by the answer of his co-defendant §168 Answers. 216 evidence as to the matters in contest between the plaintiff and the co-defendant, it is of course not evidence in the adjudica- tion of conflicting claims between the defendants themselves. 4 Nor is a defendant's answer to be used against even a co- defendant claiming under the defendant; 5 nor a trustee's against his co-defendant cestui que trust if he is not entitled to speak for the latter. 6 The necessity of affording a co-defend- ant the opportunity of cross-examining the other defendant is the foundation of the rule. 7 B. Other cases stating the rule, with illustrations, are Powles v. Dil- ley, 9 G. 222, 236-237; McKim v. Thompson, i Bl. 150, 160; Lingan v. Henderson, 1 Bl. 236, 267; Warner v. Dove, 33 Md. 579, 584; -Glenn v. Grover, 3 Md. 212, 229; Reese v. Reese, 41 Md. 554, 559; Glenn v. Baker, 1 Md. Ch. 73, 77-78; Winn v. Albert, 2 Md. Ch. 169, 176; Glenn v. Grover, 3 Md. Ch. 29, 35. In Stewart v. Stone, 3 G. & J. 510, 514, it was necessary to show that a trustee had given bond; and although the allegation in the bill to that effect was admitted in an answer of one defendant, yet proof of the giving of bond was necessary in respect.to another defendant whose answer was silent in reference to the fact. In Bevans v. Sullivan, 4 G. 383, 389, B. filed a bill alleging a partnership between himself and three defendants. Two of the de- fendants admitted the partnership, but the third denied its existence. The answers of the two defendants admitting the partnership were not evidence against their co-defendant who denied it. Exceptions have been made to the rule, in cases of partnership, but this case was held not proper to be admitted among the exceptions. *Calwell v. Boyer, 8 G. & J. 136, 149. 5 Harwood v. Jones, 10 G. & J. 404, .414-416; in this case prior to the filing of his answer the defendant had transferred to the co-defendant all his interest in the subject-matter of the suit; contra in Lingan v. Hen- derson, 1 Bl. 236, 267. 6 Johnson v. Robertson, 31 Md. 476, 491. 7 Harwood v. Jones, 10 G. & J. 404, 415; Briesch v. McCauley, 7 G. 189, 196; Lingan v. Henderson, 1 Bl. 236, 267; in this latter case, pages 269, 270, it is said that a wife cannot under any circumstances be a wit- ness for or against her husband, and for that reason he can in no case be bound by anything she sets forth in her answer; see also Warner v. Dove, 33 Md. 579, 584. When a plaintiff by his bill calls upon a defendant to make an- swer under oath to interrogatories, the answer of such defendant may be read by his co-defendant against the plaintiff; Glenn v. Baker, 1 Md. Ch. 73, T7-78; (this, of course, is now subject to the general rules relating to the admission of answers as evidence against the plaintiff) ; the reason being that a party who cites the witness and examines him, 217 Answers. §169 §169. The time allowed for answer ; proceedings in default of answer. — It is provided that from the time of ap- pearance entered, defendants shall have twenty days within which to answer, but the court may for special reasons shown, extend or enlarge the time to answer, according to the nature and circumstances of the case. 1 Upon notice given by pub- lication, the adult defendants, not being insane, shall appear and file their answer, plea or demurrer within the time allowed by the equity rules or by the terms of the order of publica- tion, or special order for the extension of time. 2 A defendant may, however, waive the time allowance and answer instantly after the bill is filed, or at the same time it is filed. 3 In default of answer, after appearance within the time allowed, the plain- tiff may, at his election, obtain an order as of course, that the bill be taken pro confesso.* This is now the universal method shall not be at liberty to reject his testimony afterwards; the answer being evidence against the plaintiff, it cannot be excluded because there may be a co-defendant in whose favor it may operate ; Powles v. Dilley, 9 G. 222, 236-237; see Farmers' Bank v. Nelson, 12 Md. 35, 50. In Gardiner v. Hardey, 12 G. & J. 365, 380, it was not decided how far the answer of a co-defendant, the legal plaintiff in an action, but who had no interest in the controversy, responsive to the bill, could be re- lied on as evidence for the other defendant, the real party in interest; cited in Glenn v. Baker, 1 Md . Ch. 73, 78. In Lingan v. Henderson, 1 Bl. 236, 267, there are said to be ex- ceptions to the rule in cases of partners in trade, who are competent to bind each other; and in cases of answers by corporations and their officers, whose answers may be received against the body politic; and in some other cases. See in general Daniell, Ch. Pr. 841-843; Beach, Eq. Pr. sees. 382-384. ^Equity rule 11; code, art. 16, sec. 126. In Dennison v. Wantz, 61 Md. 143, 144, it was said that an order requiring an answer by a certain day, passed after a demurrer was overruled, was only a mode of giving leave to answer by a particular time so that issue might be made; or if the defendant failed to an- swer that the plaintiff might be entitled to proceed with his proof. 2 Equity rule 12; code, art. 16, sec. 127. 3 Hall v. McPherson, 3 Bl. 529, 531; this may be done, as here, in con- tested cases, as well as in amicable cases. ^Equity rule 12; code, art. 16, sec. 127. In the following cases are references to various acts and pro- ceedings in regard to taking bills pro confesso upon default of answer; Mayer v. Tyson, 1 Bl. SS9, 560; Buckingham v. Peddicord, 2 Bl. 447, §169-170 Answers. 218 of proceeding in default of an answer, other methods pro- vided by statute being less effective. 6 §170. Miscellaneous. — The defendant is entitled in all cases by answer to insist upon all matters of law or equity, to the merits of the bill, of which he may be entitled to avail him- self by a demurrer or plea in bar. 1 It is provided that the answer shall be divided into paragraphs, numbered consecu- tively, each paragraph containing, as near as may be, a sepa- rate and distinct averment. 2 Under some circumstances leave of court may be granted to a defendant to withdraw an answer and file a demurrer or plea. 3 In some cases an answer has been treated as a demurrer; 4 and a demurrer has been amended so as to be an answer. 5 The answer should not set up inconsistent defences. 6 It should be signed by the proper parties. 7 '' 451-453, 457-46o; McKim v. Odom, 3 Bl- 407, 420; Neale v. Hagthrop, 3 Bl. 551, 569-571, 573-575- "See the proceedings which may be taken upon default of appear- ance and answer, ante, sec. 117. 1 Equity rule 23; code, art. 16, sec. 142; Daniell, Ch. Pr. 714-715. 2 Equity rule 23; code, art. 16, sec. 142. Compare the method of taking advantage of the failure to observe a similar rule in the case of a bill, ante, sec. 92; Chew v. Glenn, 82 Md. 370, 375. 3 See Bush v. Linthicum, 59 Md. 344, 356; Garrison v. Hill, 81 Md. 206, 208; White v. Joyce, 158 U. S. 128, 150. 4 As in Hardester v. Sharretts, 84 Md. ; Grove v. Rentch, 26 Md. 367, 377- 5 As in Chappell v. Stewart, 82 Md. 323, 324. 6 Daniell, Ch. Pr. 713-714; Beach, Eq. Pr. sec. 344; compare Wood- ville v. Reed, 26 Md. 17.9, 189-190. 7 Rieman v. Von Kapff, 76 Md. 417, 421. It should also be signed by the solicitor; Cross v. Cohen, 3 G. 257, 270-271. In Tolson v. Tolson, 8 G. 376, 388-389, on appeal from an order sustaining a demurrer, the order was reversed and the cause re- manded, with instructions to state an account, but the decree was silent as to the right of the defendants to answer. On a second appeal it was held that the defendants were entitled to answer the bill and take full defence upon the merits; followed in Shipley v. Ritter, 7 Md. 408, 416. 219 Answers. §171 §171. Disclaimers. — A disclaimer 1 is where a defendant renounces all claim to the subject of the demand made by the plaintiff.- The disclaimer should be in all respects full and explicit. 3 A formal disclaimer differs from an answer; yet it is usually filed under the name of an answer, or with an answer, and is under oath. 4 It is scarcely proper except where the bill simply alleges that the defendant claims an interest in the property in dispute, without more. 5 The defendant cannot by a disclaimer deprive the plaintiff of the right to a full answer, unless it is evident that the defendant ought not, after such disclaimer, to be retained as a party to the suit; for the plaintiff may have a right to an answer notwithstanding a disclaimer. A man cannot disclaim his liability, 6 or, by dis- claiming, defeat the plaintiff's right to discovery. 7 A dis- 1 See upon the general subject, Daniell, Ch. Pr. 706-710; Story, Eq. PI. sees. 838-844; Beach, Eq. Pr. sees. 281-292; Foster, Fed. Pr. sec. 155 ; and compare Edelin v. Lyon, 1 App. D. C. 87, 90. 2 Bentley v. Cowman, 6 G. & J. 152, 155; in this case the plaintiffs filed a creditors' bill for the sale of the real estate of a deceased person, al- leging that the defendants were his brother and sisters, and that the deceased died without heirs of his body. The defendants appeared and filed a paper stating that "they are not the heirs at law of the deceased." Chancellor Bland considered this an absolute disclaimer of all interest in the real estate; but the court of appeals held that it was not a renun- ciation of all claims, as the defendants might claim as devisees, and not heirs at law. A disclaimer must "not merely, as in the present in- stance, deny all claim in a particular representative character, or to the full extent to which it has been charged, whilst the right to claim in a different character or to a more limited extent, is in no wise aban- doned." Hence this "partial, inferential disclaimer" was insufficient. See also Baumgartner v. Haas, 68 Md. 32, 36-37. For the form of a disclaimer, see Story, Eq. PI. sec. 844, note. In Barnum v. Raborg, 2 Md. Ch. 516, 520, the plaintiff filed a dis- claimer of any relief against a certain person. 3 Worthington v. Lee, 2 Bl. 678, 680; see also Anderson v. Tyd- ings, 8 Md. 427, 443; Kipp v. Hanna, 2 Bl. 26, 28; Salmon v. Clagett, 3 Bl. 125, 146. 4 Alex. Ch. Pr. 62, 293-294; Story, Eq. PI. sec. 838. 5 Story, Eq. PI. sees. 838, 838 a. "Story, Eq. PI. sec. 840; Daniell, Ch. Pr. 706-707; Isham v. Miller, 44 N. J. Eq. 61, 63; Bromberg v. Heyer, 69 Ala. 22, 24-25; Dobree v. Nicholson, 22 L. T. (N. S.) 774- 'Daniell, Ch. Pr. 707; Alex. Ch. Pr. 62. §171 Answers. 220 claimer should be resorted to, where it is admissible, as it dispenses with the necessity for further answer; and where the disclaimer is proper, the defendant is entitled to have the bill, as against him, dismissed. 8 8 Alex. Ch. Pr. 62; Story, Eq. PI. sec. 840; see Hanson v. Worthing- ton, 12 Md. 418, 442. CHAPTER IX. REPLICATION. §172. Nature and office. 173. The general replication. 174. Time of filing; form. §172. Nature and office. — A replication 1 is the plain- tiff's avoidance or denial of the answer or defence, and, in the maintenance of the bill, to draw the matter to a direct issue, which may be proved or disproved by testimony. 2 When the replication is filed, the cause is deemed to all intents and pur- poses at issue, without any rejoinder or other pleading on either side. 3 By the replication the facts set out in the answer as a de- fence are denied. 4 Its real and only office is to determine the nature and extent of the issue between the parties, and to regu- late the onus of proof with a view to the final hearing. 5 It may be filed either to a plea 6 or to an answer. 1 See in general Daniell, Ch. Pr. 828-835; Story, Eq. PI. sees. 877-8810; Foster, Fed. Pr. sees. 156-159; Beach, Eq. Pr. sees. 471-480; Langdell, Eq. PI. sees. 85-89. 2 Story, Eq. PI. sec. 877; for a historical view of the subject, see Lang- dell, Eq. PI. sec. 85, &c. 3 Equity rule 28; code, art. 16, sec. 148; Hall v. Clagett, 48 Md. 223, 237- 4 Glenn v. Hebb, 12 G. & J. 271, 273; Neale v. Hagthrop, 3 Bl. 551, 568, 577; compare McKim v. Odom, 3 Bl. 407, 432. Filing a replication to an answer is a waiver of any mere technical objection to the form in which the defence is presented; McKim v. Mason, 2 Md. Ch. 510, 513. In Humes v. Scruggs, 94 U. S. 22, 24, it is said that a general replication denies every allegation of the answer not responsive to the bill. 5 Dougherty v. Piet, 52 Md. 425, 434; in this cause an exception was taken to the filing of a general replication at the time of r.caring of a motion for a preliminary injunction. Langdell, Eq. PI. sec. 89, says that the replication serves no sub- stantial purpose and is a mere form. Its tenor is always the same and it is required equally whether the answer contains a defense or not. 6 See ante, sec. 148. 221 §173 Eeplication. 222 §173. The general replication. — Formerly, replica- tions were either general or special. A general replication is a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged in it to bar the plain- tiff's suit, and an assertion of the truth and sufficiency of the bill. A special replication was occasioned by the defendant introducing new matter into his plea or answer, which made it necessary for the plaintiff to put in issue some additional fact on his part, in avoidance of such new matter introduced by the de- fendant. 1 It is now provided that no special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may obtain leave to amend the same, upqn application to the court or judge thereof, within such time or upon such terms as may be prescribed by order. 2 In all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. 3 The issuing, by consent of parties, of a commis- sion to take testimony generally, is regarded as an admission that the issues are made up, and that the general replication to the defendant's answer has been entered by the plaintiff. To reject testimony taken under such circumstances, because no replication was in fact filed, would work surprise upon the plaintiff. And to permit such an objection to be made in the court of appeals, where its omission could not be remedied, would be permitting a defendant to practice a fraud on the plaintiff.* A cause may be at issue by consent, express or im- plied; and when a replication was filed before final hearing, the objection was not available in any aspect. 5 iStory, Eq. PL sec. 878; Alex. Ch. Pr. 67. An instance of a special replication is in Scott v. Scott, 17 Md. 78, 80. 2 Equity rule 29; code, art. 16, sec. 149; compare U. S. equity rule 45. 3 Equity rule 28; code, art. 16, sec. 148; compare U. S. equity rule 66; see Hall v. Clagett, 48 Md. 223, 237. 4 Md. Coal Co. v. Wingert, 8 G. 170, 179; Hall v. Clagett, 48 Md. 223, 237; National Bank v. Ins. Co., 104 U. S. 54, 77; compare Clements v. Moore, 6 Wall. 299, 310-311. ^Hall v. Clagett, 48 Md. 223, 237. In Md. Coal Co. v. Wingert, 8 G. 170, 179, it is said that in England, after a commission has been issued by consent, and testimony has been taken, courts of equity consider 223 Replication. §174 §174. Time of filing ; form. — It is now provided by the equity rules that whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto within fif- teen days thereafter, unless he shall set the cause down for hear- ing on bill and answer as to said defendant or defendants answering. 1 If the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed, the defendant shall be entitled to a rule further proceedings within ten days after notice of such rule ; and upon failure to comply with such rule, the defendant shall be entitled to have the bill dis- missed. The form of the general replication shall be as fol- lows: "The plaintiff joins issue on the matters alleged in the answer of C D, so far as the same may be taken to deny or avoid the allegations of the bill." 2 the replication so much a matter of form that they will allow it to be filed nunc pro tunc even after decree; see also the authorities cited in Foster, Fed. Pr. sec. 157. Compare code, art. 16, sec. 157. See also Warren v. Twilley, 10 Md. 39, 49-50; Glenn v. Hebb, 12 G. & J. 271, 273. ^ee post, sec. 257, as to hearing on bill and answer. 2 Equity rule 28; code, art. 16, sec. 148; compare U. S. equity rule 66, which provides for the filing of a replication nunc pro tunc. CHAPTER X. General principles of pleading; impertinence and scandal; amendments. §175. General characteristics; technicality. 176. Authority of established rules. 177. Averments and arguments. 178. Impertinence and scandal. 179. Equity r.ule. 180. Exceptions. 181. Amendments; the code provisions. 182. Discretion of the court. 183. Amendment of bill; leave of court. 184. Equity rules. . 185. For what purposes allowed. 186. When not allowed. 187.- Occurrence after filing of bill. 188. Original and amended bill. 189. Amendment of answer; procedure. 190. Method of making amendments. §175. General characteristics; technicality. — The rules of pleading in equity are not governed by the same tech- nicality as to matters of form that controls proceedings at law. Courts of equity look to substance, not form. 1 Their forms of pleadings are not held to a rigid compliance with the rules or technicalities of legal practice; 2 they are not framed with the iBirely v. Staley, 5 G. & J. 432, 451. Compare Belt v. Blackburn, 28 Md. 227, 240; Lingan v. Henderson, 1 Bl. 236, 255, 280; Chambers v. Chalmers, 4 G. & J. 420, 441; McCormick v. Gibson, 3 G. & J. 12, 17; Small v. Owings, 1 Md. Ch. 363, 366-367; Long v. Long, 62 Md. 33, 83, per Bryan, J. Compare Story,- Eq. PI. sees. 12-13, 25; as an instance of the change of opinion in respect to technical matter of pleading, compare the modern ideas of equity pleadings with those of the English counsel whose opinions are quoted at length in Story, Eq. PI. in various places; especially his views (sec. 38, note) that "it does not appear that any alteration can be made in the form of our pleadings to much advan- tage"; this was said in 1826, since which time the rules have undergone great changes in respect to technicality and prolixity; see also his re- marks in the notes to sec. 46. All formal papers filed in a cause must be signed by a solicitor; Cross v. Cohen, 3 G. 257, 270-271. 2 Ridgely v. Bond, 18 Md. 433, 450; see the examples in this case, in 225 General principles op pleading. §175 same precision and exactness. 3 The equity courts are not sub- ject to the strict rules which in other courts are sometimes found in the way, and are difficult to surmount; justice will not be suffered to be entangled in a web of technicalities.'' Equity pleadings are founded upon the purest principles of ethics, and are marked by frankness and fair dealing. 5 It is not necessary that either party should strictly adhere to any prescribed form of stating his cause of complaint or ground of defence; but although the pleadings are much more informal than those at law, yet they must be substantially sufficient. 6 Mispleading in matter of form has never been held to prejudice a party, pro- vided the case made is right in matter of substance. 7 The character of a proceeding in equity is determined rather by the allegations and the relief prayed than by the title it assumes. 8 which the question was whether the proceeding should be a bill of re- vivor or an original bill in the nature of a bill of revivor. 3 Grove v. Rentch, 26 Md. 367, 377; Bolgiano v. Cooke, 19 Md. 375, 392; Moreton v. Harrison, I Bl. 491, 494; Tiernan v. Poor, 1 G. & J. 216, 230; see also Krone v. Linville, 31 Md. 138, 147. 4 Crain v. Barnes, 1 Md. Ch. 151, 155. In Rhode Island v. Massachusetts, 14 Peters, 210, 257, it is said that "in ordinary cases between individuals, the court of chancery has always exercised an equitable discretion in relation to its rules of plead- ing, whenever it has been found necessary to do so for the purposes of justice." 3 Bentley v. Cowman, 6 G. & J. 152, 155; Hamilton v. Whitridge, 11 Md. 128, 144. In Small v. Owings, 1 Md. Ch. 363, 367, it was held that the principles of equity pleadings will admit a different interpretation sometimes to be put upon a particular sentence than would be required by grammatical rule. In Ware v. Richardson, 3 Md. 505, 558, it was said that under certain circumstances the court would modify the rigid rules of prac- tice and temper the harsh consequences of decrees, to promote the ends of justice and effectuate the intentions of parties. 6 Lingan v. Henderson, 1 Bl. 236, 255, 280. In Burch v. Scott, 1 Bl. 112, 120, it is said that 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; compare Tessier v. Wyse, 3 Bl. 28, 37. 7 Tiernan v. Poor, 1 G. & J. 216, 230; Danels v. Taggart, 1 G. & J. 311. 324. 8 Ridgely v. Bond, 18 Md. 433, 450; Withers v. Denmead, 22 Md. 135, J-45- 15 §176-177 General principles of pleading. 226 §176. Authority of established rules.— Although it is always a subject of regret when the court finds itself under obli- gation to decide causes upon ground not going to the merits, this regret cannot have the effect to induce it to overthrow es- tablished rules, and more especially when those rules are essen- tial to prevent protracted litigation. 1 Experience has taught that it is safer, looking to the ends of justice and orderly pro- cedure, to adhere to the practice and forms which have ob- tained from the earliest times. Rules of practice are a part of the law governing all judicial tribunals. When parties sue they form their pleadings and conduct their causes with refer- ence to such principles, and have a right to require that they be observed on the opposite side. 2 Where a practice has be- come established, it is held better to adhere to it, until changed by a prospective rule, than to incur the risk of doing injustice to a party who may have followed it. 3 General rules framed to protect the rights of suitors, and to promote regularity of ju- dicial proceedings, should not be dispensed with to meet the exigencies of special cases. 4 §177. Averments and arguments. — Pleadings in equity should consist of averments or allegations of facts, and not of inference and argument. 1 But the pleadings are not ' framed with the same precision and technical exactness as at law; fact's are often indirectly alleged or expressed by necessary 1 Ridgeway v. Toram, 2 Md. Ch. 303, 316; compare Trotter v. Heck- scher, 41 N. J. Eq. 478, 479. 2 Tuck, J., in Gregg v. Mayor, &c, 14 Md. 479, 504. s Davis v. Reed, 14 Md. 152, 157. *Lovejoy v. Irelan, 17 Md. 525, 527; compare Crain v. Barnes, 1 Md. Ch. 151, 159; Hughes v. Jones, 2 Md. Ch. 289, 293. [§I77-] Chambers v. Chalmers, 4 G. & J. 420, 441; McKim v. Ma- son, 2 Md. Ch. 510, 513. Compare Lamm v. Burrell, 69 Md. 272, 274- 275; Crook v. Brown, 11 Md. 158, 170. . In Salmon v. Clagett, 3 Bl. 125, 134, it,is said that the case of the plaintiff consists merely of facts; ex facto oritur jus. In Canal Co. v. Railroad Co., 4 G. & J. 1, 60, it is said that the allegation of pleadings so far as regards facts, are offered as by a wit- ness giving testimony. The averments of fact in an injunction bill are sworn to as by a witness to cause the court to believe in their truth. The pleadings in equity may be taken as the declarations of witnesses testifying to facts. The best test of what are properly averments of 227 General principles of pleading. §177 implication. 2 In some cases it may not be necessary to state a fact by positive averment; thus if the terms be reasonably cer- tain in their import, they are admitted upon demurrer. 8 It is not necessary for a suitor to set forth and comment upon what he conceives to be the law arising out of his case. 4 Al- though parties may be indulged in a brief expression of their opinions as to the law arising out of the facts they set forth, yet there is no absolute necessity in any case to make any state- ment as to the legal consequences of any facts, since it is the exclusive duty of the court to pronounce what is the law aris- ing out of any combination of facts which may be regularly brought before it. 5 When facts are stated upon which legal conclusions arise, these legal conclusions need not themselves be stated; thus, where a bill stated facts showing the plaintiffs to be the personal representatives of a testator, they were en- titled to relief as such, although the bill did not state that they fact in a bill or answer, is whether they are such matters as a witness might be called upon to prove or the truth of which must be established by evidence. 2 Bolgiano v. Cooke, 19 Md. 375, 392; Grove v. Rentch, 26 Md. 367, 377- In Mayo v. Bland, 4 Md. Ch. 484, 493, it was held that an aver- ment in the bill "that the property bequeathed to the widow is liable to pay debts" is a sufficient averment that the benefits taken by her under the will are greater than her legal rights, because such liability to pay debts depends upon this fact. Compare White v. White, 4 Md. Ch. 418, 424; Birely v. Staley, 5 G. & J. 432, 451; Guyton v. Flack, 7 Md. 398, 404. In Riley v. Carter, j6 Md. 581, 599-600, it was urged that an alle- gation that a deed was made with "intent" to delay creditors was only an inference, and not a fact, and that on demurrer the truth of the con- clusion was not admitted; but the court held that the averment was legally sufficient, and that it charged with certainty a fact which the demurrer admitted. 3 Young v- Lyons, 8 G. 162, 169. In Coale v. Chase, 1 Bl. 136, 137, it is said that the allegations in the body of an answer or plea should be positive, otherwise the issue would be joined on a mere statement of the belief of the parties, not upon their allegations of fact. 4 Townshend v. Duncan, 2 Bl. 45, 48; Dennis v. Dennis, 15 Md. 73, 124. 6 Contee v. Dawson, 2 Bl. 264, 268. §177-178 General principles of pleading. 228 were such, their title as personal representatives being a legal conclusion from the facts stated. 6 §178. Impertinence and scandal. — Impertinence is said to be the introduction of any matter into a pleading or pro- ceeding which is not properly before the court for decision at any particular stage of the suit. 1 The best test by which to as- certain whether a matter be impertinent is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties. Facts not material to the issue are impertinent. Impertinent matter which is also reproachful is said to be scandal. 2 But though a matter may be scandalous in itself, it is said not to be considered so if it is pertinent. 3 Matters may be impertinent without being scandalous; but if it is scandalous, it is neces- sarily impertinent. 4 If that which is stated be material to the issue it may be false, but it cannot be scandalous. 5 In respect to answers, the general rule is that if it goes out of the way to state any matter not material to the defendant's case, it will be deemed impertinent and may be expunged; but nothing can be considered irrelevant that may have an influence on the suit. The general rule as to scandal and impertinence is suffi- "Woorten v. Burch, 2 Md. Ch. 190, 198-199. In Gibson v. McCormick, 10 G. & J. 65, 109, a creditors' bill containing no allegation that certain claims were chargeable upon the real estate was held not objectionable, as such an allegation would have been a necessary inference of law to be drawn by the court from the statement of the facts. iStory, Eq. PI. sees. 266-270, 861-863, 867-868; Daniell, Ch. Pr. 347- 355, 758-760; Beach, Eq. Pr. sees. 109-112, 407-412; Foster, Fed. Pr. sees. 68, 147. In Price v. Tyson, 3 Bl. 392, 400, it is said that it is the duty of the court to take care that its records be kept pure, to prevent them being made the repositories or vehicles of scandal, and that they do not con- tain useless and impertinent matter; see also Winder v. DifTenderffer, 2 Bl. 166, 193. 2 Woods v. Morrell, 1 Johns. Ch. 103, 106; see the instance in Chesel- ' dine v. Gordon, 2 Bl. 79, note case. 3 Price y. Tyson, 3 Bl. 392, 402. 4 Story, Eq. PI. sec. 270. s Ex parte Simpson, 15 Ves. 447, 476-477. "Price v. Tyson, 3 Bl. 392, 401, 404; if what is pertinent is so mixed 229 General principles of pleading. §178-180 ciently clear; but the proper application of it to cases as they arise has in many instances caused much hesitation. 7 The rules in regard to impertinence and scandal apply both to all pleadings in general. s §179. Equity rule. — It is provided by the equity rules that every bill or petition shall be expressed in terms as brief and concise as it reasonably can be, and shall contain no unneces- sary recitals of documents of any kind, in haec verba, nor any impertinent matter, or matter scandalous and not relevant to the suit; and the same rule shall apply to all answers and pleas filed by defendants; and if this rule be violated, the unneces- sary or improper matter or averments may be stricken out at the cost of the part}' introducing the same. 1 §180. Exceptions. — Objection to allegations as imperti- nent or scandalous should be made by exceptions in writing. up with that which is impertinent that the one cannot be separated from the other, the whole matter with the impertinency mixed shall be expunged; and if such foreign matter in an answer be scandalous as well as impertinent, it may be struck out at the instance of a co-defend- ant, or even a stranger as well as the plaintiff in the case; and that, too, at the costs of the party by whom it was filed. In Woods v. Morrell, I Johns. Ch. 103, 106, Kent, Ch., said: ''"As to impertinent matter the answer must not go out of the bill to state that which is not material or relevant to the case made out of the bill. Long recitals, digressions, stories, conversations and insinuations tend- ing to scandal are of this nature." 'Price v. Tyson, 3 Bl. 392, 401 ; in this case and in the note cases to it, several instances of impertinence and scandal in answers are given; prolixity apparently being very objectionable; and it is said, on page 404, that "a defendant in making answer to a bill cannot be permitted in any manner, to stray beyond the confines of the case therein set forth; or to bring within those limits anything which can afford no degree of that information asked for by the bill; or which can have no influence upon the case; or which cannot be in any way needful to him as a defence against the claims and pretensions of the plaintiff." sDaniell, Ch. Pr. 759. 1 Equity rule 13; code, art. 16, sec. 131; compare U. S- equity rule 26. In Story, Eq. PI. sec. 267, it is said that the court will not order the alleged impertinent matter to be struck out unless the imperti- nence is very fully made out; for if it is erroneously struck out the error is irremediable; but if it is not struck out, the court may set the matter right in point of costs. §180-181 General principles of pleading. 230 When either party files exceptions, it is the practice to move for an order appointing a day for a hearing, on notice to the opposite party or his solicitor. All such exceptions in the same case may be brought to a hearing at the same time and be disposed of at once. 1 The objection is not made by demurrer. 2 If the exceptions are sustained, the objectionable point is ex- punged from the pleadings. 8 Exceptions to a bill for imperti- nence must be taken before the answer is filed, or the objection will be considered as waived; 1 similarly if a plaintiff replies to a scandalous or impertinent answer, he waives the fault." §181. Amendments; the code provisions. — The amendment of proceedings in equity is the subject of the stat- utory provision 1 that upon application of either plaintiff or de- fendant to any court of equity, he shall have the right, upon payment of such costs as the court may direct, to amend at any time before final decree 2 the bill of complaint, 8 answer,* iPrice v. Tyson, 3 Bl. 392, 400. 2 Daniell, Ch. Pr. 349. 3 As in Price v. Tyson, 3 Bl. 392, 407. In Neale v. Hart, 3 Bl. 401, note case, it is said: "Forasmuch as it appears that the bill of complaint exhibited by the complainant against the defendant is altogether scandalous for the ill language therein, it is ordered that the bill be dismissed out of this court." •'Story, Eq. PI. sec. 270; but it is said that a bill may be objected to on account of scandal at any time; Daniell, Ch. Pr. 759-760; compare Salmon v. Clagett, 3 Bl. 125, 143. s Story, Eq. PI. sec. 867. [§181.] 1 Code, art. 16, sec. 16; act of 1854, ch. 230. Compare U. S. Rev. Stat. sec. 954; Foster, Fed. Pr. sec. 160. It is also provided by code, art. 16, sec. 17, that "in any suit in chancery where any of the parties are under age, femes covert, of un- sound mind or non-residents, the proceedings may be amended by making new parties or otherwise, and it shall not be necessary to have any new pleadings or proofs in such cases of amendment, unless the court shall deem such new pleadings and proofs necessary to pro- mote the ends of justice, or unless such new party desires to plead or objects to the proof." 2 After a bill has been absolutely dismissed, an amendment cannot be made; the bill being gone, there is nothing to amend; Hitch v. Davis, 3 Md. Ch. 266, 276; compare Keerl v. Keerl, 28 Md. 157, 160- 161. s See post, sees. 183-188. 4 See post, sec. 189. , 231 General principles op pleading. §181-182 pleas, 6 demurrer, 6 or any of the proceedings in any cause be- fore the court, so as to bring the merits of the case in contro- versy fairly to trial. This provision was intended to enlarge the time within which amendments may be made in proceed- ings in equity. Prior to the statute the proper time to apply for leave to amend was before the cause was at issue. The statute authorizes amendments to be made at any time before final decree; but still requires that application should be made to the court, so as to bring the merits of the case fairly to trial. 7 §182. Discretion of the court.— The right to amend is not a right ex debito; but is subject to the sound discretion of the court. 1 The discretion must depend largely on the special circumstances of each case. It may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. But great caution should be ex- ercised where the application comes after the litigation has continued for some time, or where the granting of it would cause serious inconvenience or expense to the opposite side. 2 5 See Salmon v. Clagett, 3 Bl. 125, 148, 153; Beach, Eq. Pr. sees. 320- 321; Foster, Fed. Pr. sec. 166; Story, Eq. PI. sec. 895. e See Salmon v. Clagett, 3 Bl. 125, 148, 153; Foster, Fed. Pr. sees. 107, 166; Story, Eq. PI. sec. 894. 'Calvert v. Carter, 18 Md. 73, 107-108, citing Story, Eq. PI. sec. 886. As to amendments at the hearing, see Beach, Eq. Pr. sees. 160- 161, and cases cited. 1 Glenn v. Clark, 53 Md. 580, 602. 2 Hardin v. Boyd, 113 U. S. 756, 761. In Cropper v. Smith, 26 Ch. D. 700, 710, Bowen, J., said; "I know of no kind of error or mistake, which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discip- line, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favor or grace." In Baltimore Base Ball Co. v. Childs, in circuit court number two of Baltimore city, docket 1 A, folio 320, the court expressed its opinion of the case in favor of the defendant, whereupon the plaintiff sought to amend the bill. Judge Phelps held (Daily Record, April 23, 1891, and May 4, 1891,) that as the matters of the proposed amendment were known to the plaintiff before the bill was filed, the plaintiff, by omitting §182-184 General principles op pleading. 232 The court to which the application to amend is made must of necessity judge of the propriety of the proposed amendment. From the action of the court in allowing or refusing an amend- ment to be made, no appeal lies. 3 §183. Amendment of bill; leave of court.— An amendment of the bill 1 cannot be made without the leave of the court. 2 Leave to amend should be applied for by petition stat- ing concisely the circumstances which render an amendment necessary. 3 The court generally fixes a certain period within which any important amendment must be made; and if not made in such period, the plaintiff is considered as having aban- doned his leave to amend. 4 When leave to amend is granted, the court sometimes reserves the right to the defendant to con- test the right to make the amendment proposed, reserving also to the court the right to determine whether it is a proper amendment. 5 §184. Equity rules. — A number of provisions regarding the practice in cases of amendment of bills are contained in the equity rules. It is provided that if, 1 upon the hearing, any de- murrer or plea shall be allowed, 2 the court may, in its discre- reference thereto, took the risk of their materiality and took all the chances of a decision in its favor by withholding its offer to amend until after the opinion was filed, and as the circumstances made it inequitable to grant the application to amend, the court refused to permit the amendment and dismissed the bill. Compare Claflin v. Bennett, SI Fed. 693, 701-702, affirmed in Blair v. Harrison, 57 Fed. 257, 258. 3 Calvert v. Carter, 18 Md. 73, 108; Thomas v. Doub, 1 Md. 252, 324 for other cases, see post, sec. 315. iSee in general Daniell, Ch. Pr. 401-427; Story, Eq. PI. sees. 884-893 Beach, Eq. Pr. sees. 152-165. 2 Walsh v. Smyth, 3 Bl. 9, 21 ; Thomas v. Visitors, 7 G. & J. 369, 388 Warren v. Twilley, 10 Md. 39, 50. 3 Walsh v. Smyth, 3 Bl. 9, 21. 4 Compare equity rule 30; code, art. 16, sec 150; an instance is in Bannon v. Comegys, 69 Md. 411, 419-421. 6 As in Bannon v. Comegys, 69 Md. 411, 420. [§184.] Equity rule 21 ; code, art. 16, sec. 139. 2 In Cullison v. Bossom, 1 Md. Ch. 95, 97, it was said that in strictness the allowing a demurrer to the whole bill, puts it out of court, and no subsequent proceeding can be had in the cause; but that there are cases 233 General principles op pleading. §184-185 tion, upon motion of the plaintiff, 3 allow him to amend his bill upon such terms as it shall deem to be reasonable. 4 If any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may obtain leave to amend the same, upon application to the court or judge thereof, within such time and upon such terms as may be prescribed by order. 5 If the plaintiff, so obtaining any order to amend his bill after answer, or after plea or demurrer thereto, shall not make the amendment within the time allowed, he shall be con- sidered to have abandoned the leave to amend, and the cause shall proceed as if no application for such leave had been made, and notice may, in all cases, be given by service of a copy of the bill as amended upon the defendant, or upon his solicitor, if there be one; or it may be by subpoena. The mode of pro- ceeding in default of answer to the matter of the amendment shall be the same as that in default of answer to the original bill; and the proceeding on answer, plea or demurrer, filed to the amended bill, shall be the same as that on answer, plea or demurrer to an original bill. 6 §185. For what purposes allowed. — It is said , that amendments to a bill can only be allowed when it is found de- fective in proper parties, in its prayer for relief, or in the omis- sion or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself. 1 in which the court has afterwards permitted an amendment to the bill to be made. Compare Keerl v. Keerl, 28 Md. 157, 160-161; Beach, Eq. Pr. sec. 156. 3 In Reckefus v. Lyon, 69 Md. 589, 591-592, the court remanded a cause in order that the plaintiffs might proceed with the case, although the latter declined to amend their bill as they should have done when the opportunity was offered in the court below; applying equity rule 33, in regard to dismissal of bills for multifariousness; see ante, sec. 114. *In Bannon v. Comegys, 69 Md. 411, 419-420, a demurrer to a bill was sustained, but leave was given to amend the bill within fifteen days from the date of the order, reserving to the defendant the right to be heard against the allowance of any amendment proposed. 5 Equity rule 29; code, art. 16, sec. 149. 6 Equity rule 30; code, art. 16, sec. 150; compare U. S. equity rule 30. iBannon v. Comegys, 69 Md. 411, 422. In Shields v. Barrow, 17 How. 130, 144, the court, referring to the rule as above stated, says: "We think sound reasons can be given for §185 General, principles of pleading. 234 The general rule as to amendments for parties is that where the allegations of the bill are sufficient to authorize a court of equity to grant relief, 'but the plaintiff has failed to make proper par- ties, the court will not dismiss the bill, but will allow it to be amended, and further proceedings to be had in order that the cause may be determined upon its merits. 2 And on appeal from a decree passed upon a bill defective for want of proper parties, the appellate court may remand the case without af- firmance or reversal in order that proper parties may be made. 8 The other class of amendments, in cases where the bill is de- fective in the omission or mistake of some fact or circum- stance connected with the substance of the case, but not form- ing the substance itself, comprises perhaps more numerous instances than the other classes. Thus where the bill was de- fective in not making the averments required by a statute pro- viding for a sale of land, it was retained with leave to make the amendments necessary to bring the case within the statute. 4 Where a party was described as an infant in a bill, but reached not allowing the rules respecting amendments to be extended beyond this; .though doubtless much liberality should be shown in acting within it, taking care always to protect the rights of the opposite party''; and see Hardin v. Boyd, 113 U. S. 756, 761. In Story, Eq. PI. sec. 884, the rule is stated somewhat more broadly, as follows: "Amending the bill may be useful for various pur- poses; for the correction of mistakes; or the suppression of impolitic admissions in the original statements; or for adding new parties; or for inquiring into additional facts; or the further investigation of facts which have been only partially disclosed; or for putting in issue new matter stated in the answer." And in sec. 885 it is said: "If the plain- tiff after he has filed his bill finds that he has omitted to state any matter or to join any person as party to the suit, which he ought to have done, he may supply such defect by amending his bill. Or if, after the de- fendant has put in his answer the plaintiff thereby obtains new light as to the circumstances of his case, he may amend his bill in order to shape his case accordingly." See also Daniell, Ch. Pr. 401. 2 Davis v. Clabaugh, 30 Md. 508, 511; Binney's case, 2 Bl. 99, 105. Compare Story, Eq. PI. sec. 885; Daniell, Ch. Pr. 403-406.' As to the plaintiff amending the bill by striking out parties plaintiff, see Riley v. First Nat'l. Bank, 81 Md. 14, 26-27; ante, sec. 102. 3 See post, sec. 348. *Roser v. Slade, 3 Md. Ch. 91, 93, citing Chaney v. Tipton, 11 G. & J- 253- A bill for sale may be converted by amendment into a bill for par- 235 General principles of pleading., §185-186 full age pending the proceedings, the bill was amended to make the fact appear; 5 where a party was described as a non- resident of the State and publication was prayed against him, and it, appeared that he was in fact a resident, leave to amend the bill was granted ; 6 where a corporation is sued by an im- proper name, an amendment may be allowed. 7 Where a defendant in a suit for specific performance alleges an agree- ment which was entered into, different from that alleged by the plaintiff, the latter may amend his bill and take a decree accordingly. 8 Where the proof entitled the plaintiff to recover, but the bill did not contain the necessary allegations, the cause was remanded by the court of appeals in order that the bill might be amended so as to conform to the proofs. 9 Similarly, the court may permit the bill to be amended so as to bring it within the issue made by newly discovered evidence. 10 §186. When not allowed. — Under the privilege of amending, a party is not permitted to make a new bill ; he can- not abandon the entire case made by the bill and make a new and different case by way of amendment. If the amendment proposed changes the character of the suit as originally insti- tuted, and is inconsistent with and repugnant to the title set up and the relief sought by the bill, making in substance a new bill, it cannot be allowed. 1 Nor will the court of appeals remand tition; Watson v. Godwin, 4 Md. Ch. 25, 28. Compare West v. Hall, 3 H. & J. 221, 223. 5 Kipp v. Hanna, 2 Bl. 26, 29. 6 Lingan v. Henderson, 1 Bl. 236, 245-246; compare McKim v. Odom, 3 Bl. 407, 415- 'Binney's case, 2 Bl. 99, 107. 8 Price v. Tyson, 3 Bl. 392, 398; in this case, p. 400, it is said that a bill for discovery may be amended after the defendant has answered, so as to pray for relief. 9 Jeffrey v. Flood, 70 Md. 42, 46; compare Thomas v. Doub, 1 Md. 252, 328. See post, sec. 348. 10 Ridgeway v. Toram, 2 Md. Ch. 303, 314. iBannon v. Comegys, 69 Md. 411, 422; see this case for an applica- tion of this rule; the court quotes from Shields v. Barrow, 17 How. 130, 144, in which it is said: "To strike out the entire substance and prayer of a bill, and insert a new case by way of amendment, leaves the record unnecessarily incumbered with the original proceedings, in- creases expenses and complicates the suit; it is far better to require the §186-188 General principles of pleading. 236 a case for amendment when it appears that it will require an en- tirely new bill to be framed, with new allegations and new par- ties, 2 or would be repugnant and inconsistent in its several parts. 3 Similarly a bill cannot be amended if the effect of the amendment would be to make the bill as amended multifarious, or place it beyond the jurisdiction of equity.* §187. Occurrence after filing- of bill. — The general rule is that matters which have occurred previous to the filing of the original bill may be introduced by amendment; but that nothing which has occurred since the filing of a bill can be added to it by amendment, but must be brought in by supple- mental bill. 1 Nor can a title acquired by the plaintiff subse- quent to the filing of the original bill be availed of by an amend- ment to the original bill ; in such case a new bill must be filed. 2 §188. Original and amended bill. —An original bill with its amendments, 1 or an original bill and an amended bill, are treated as one entire bill, constituting but one record; and after a bill has been amended, the proceedings are upon the amended bill; that is, upon the original bill so amended. 2 complainant to begin anew. To insert a wholly different case is not properly an amendment." See also Richmond v. Irons, 121 U. S. 27, 45-47; Hardin v. Boyd, 113 U. S. 756, 761; National Bank v. Smith, 17 R. I. 244, 263; Beach, Eq. Pr. sees. 162-164; Daniell, Ch. Pr. 425-426; Foster, Fed. Pr. sec. 163. 2 Benscotter v. Green, 60 Md. 327, 333; see post, sec. 347. 3 McElderry v. Shipley, 2 Md. 25, 37. * Crook v. Brown, n Md. 158, 172. See Thomas v. Mason, 8 G. I, 6, in which the court held the amended bill neither inconsistent with the original bill nor multifarious. a Beach, Eq. Pr. sec. 155; Foster, Fed. Pr. sec. 164; Story, Eq. PI. sec. 885; Daniell, Ch. Pr. 406-407; see post, sec. 194. 2 Bannon v. Comegys, 69 Md. 411, 422. [§188.] »See Story, Eq. PI. sees. 883-893; Daniell, Ch. Pr. 401; Beach, Eq. Pr. sec. 154. 2 Walsh v. Smyth, 3 Bl. 9, 20; Wagoner v. Wagoner, 77 Md. 189, 194; Swan v. Dent. 2 Md. Ch. in, 116. If the amended bill is dismissed, the cause is left upon the orig- inal bill and the proceedings thereon; Thomas v. Doub, 1 Md. 252, 322- 323. 237 General principles op pleading. §188-1 89 The amended bill may be taken as a substitute for the original bill. 3 An amendment does not alter the time of filing the orig- inal bill; it is only amended by virtue of an order of court dated upon a specified day. The suit as amended, however, dates only from the time of making the amendment.* The proceed- ing on answer, plea or demurrer filed to an amended bill is the same as that on answer, plea or demurrer to an original bill. 6 §189. Amendment of answer; procedure. — It is not the right of a defendant to file an amended answer. 1 Before it can be done the leave of the court must be obtained; and this is never granted except under peculiar circumstances, verified by affidavit"; and if an amended answer be filed without leave of the court it will be ordered to be taken from the files. 2 A special case must be shown to allow the amendment. Before the court will permit the issue to be changed in this way, the defendant must show that it is due to justice that the amend- ment should be made. Amendments have been allowed where new matter has come to the knowledge of the defendant since his answer was filed; in case of surprise or mistake; and in some other cases. 3 Where laches cannot be imputed to a party, 3 As in Wagoner v. Wagoner, 77 Md- 189, 193. •'Walsh v. Smyth, 3 Bl. 9, 20; compare Griffee v. Mann, 62 Md. 248,. 254-255. 'Equity rule 30; code, art. 16, sec. 150. ^Thomas v. Doub, 1 Md. 252, 323; the court will not allow a supple- mental answer to be filed, unless on new matter, or unless a sufficient reason appears for not having inserted it in the original answer; see the other remarks on page 323. As to the amendment of answers, see, in general, Daniell, Ch. Pr. 777-784; Story, Eq. PI. sees. 896-905; Beach, Eq. Pr. sees. 391-405; Foster, Fed. Pr. sec. 167; ante, sec. 158. 2 Warren v. Twilley, 10 Md. 39, 50; Thomas v. Doub, 1 Md. 252, 323; Calvert v. Carter, 18 Md. 73, 82, 108; Thomas v. Visitors, 7 G. & J. 369, 387-388. Compare Daniell, Ch. Pr. 784-785. 3 Williams v. Savage Mnfg. Co., 3 Md. Ch. 418, 422; and the unwill- ingness of the court to permit the defendant to change or add to the grounds of defence set up in the answer is not diminished when the application is made after the opinion of the court and the testimony have indicated how it may be modified to accomplish his purpose. In McKim v. Thompson, 1 Bl. 150, 162, it is said: "It is with great §189 General principles op pleading. 238 and the facts constituting the ground of defence have been dis- covered for the first time during the progress of the cause, it is equitable that an amendment should be allowed; 4 so also when an ambiguous word has been used in an answer, it is 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 al- lowed for the purpose of retracting a clear and well understood ad- mission. It should appear due to general justice to permit the issue to be altered." And on page 163: "A supplemental answer is only in- tended 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." As to when an amended answer should be used, and when a sup- plemental answer, it is said that the recent practice in England and this country is not to permit an amendment to an answer after it has been sworn to and filed except to correct a verbal or clerical mistake, or to amend or supply a formal defect, but to grant the relief prayed for by permitting a supplemental answer to be filed; Beach, Eq. Pr. sec. 404, and cases cited; see also sec. 423. In Foster, Fed. Pr. sec. 154, it is said that "a supplemental answer is filed to bring to the attention of the court some fact which was not inserted in the original answer through mistake or ignorance, or which has occurred subsequently to the filing of the same. They can only be filed by leave of the court, which may impose terms on the applicant. The rules regulating supplemental answers of the former class will be found in the chapter on amendments. Those of the second class have been little considered in the books. Their functions may also be performed by cross-bills." See also Daniell, Ch. Pr. 779-780. 'Glenn v. Clark, 53 Md. 580, 602. In Daniell, Ch. Pr. 780-781, quoted in Thomas v. Doub, 1 Md. 252, 323, it is said: "Although the court will in cases of mistake, or other cases of that description, permit a defendant to correct his answer by a supplemental answer, it always does so with difficulty, where an addition is to be put upon the record prejudicial to the plain- tiff, though it will be inclined to yield to the application if the object is to remove out of the plaintiff's way the effect of a denial, or to give him the benefit of a material admission. And the court will not allow a supplemental answer to be filed unless on new matter, nor unless a sufficient reason appears for not having inserted it in the original answer." In Smith v. Babcock, 3 Sumner, (U. S. C. C.) 583, 585-586, Story, J., said: "In mere matters of form or mistakes of dates, or verbal inac- curacies, courts of equity are very indulgent in allowing amendments to answers. But when application is made to amend an answer in material facts or to change essentially the ground taken in the original answer, courts of equity are exceedingly slow and reluctant in acceding 239 General principles of pleading. §189 proper to explain it by means of an amended answer. 6 The propriety of allowing a supplemental answer to be filed de- pends upon its avowed objects and purposes, as stated in the petition for leave, and not upon other and distinct matters con- tained in the answer itself and not referred to in the petition. 8 The matter is in the discretion of the court, which cannot be reviewed on appeal. 7 As to the procedure, the rule is that the to it. * * * Before any court should allow such amendments in an- swers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satisfactory; that the mistakes to be cor- rected, or the facts to be added, are made highly probable, if not cer- tain; that they are material to the merits of the case in controversy; .that the party has not been guilty of gross negligence; and that the mistakes have been ascertained and the new facts have come to the knowledge of the party since the original answer was put in and sworn to." In Welch v. Arnett, 46 N. J. Eq. 548, 549-551, (a valuable case), an amendment was allowed after the announcement of the decision of the cause. 5 Murdock's case, 2 Bl. 461, 463. 6 Calvert v. Carter, 18 Md. 73, 108. 7 Frisby v. Parkhurst, 29 Md. 58, 69, and cases cited in note 2. In Pue v. Pue, 4 Md. Ch. 386, 390, it is said that a fact which has arisen since the filing of the original answer should not be brought forward by a supplemental answer, but by a bill in the nature of a sup- plemental bill, which seems to be a bill in the nature of a plea puis darrein continuance at the common law. Compare Coburn v. Cedar Co., 138 U. S. 196, 222. In McKim v. Thompson, 1 Bl. 150, 162-163, a paper tendered as an amended answer was silent as to the causes which occasioned the omission of the new matter from the original answer; nor did it say anything of the defendant not knowing of the new circumstances. It was a mere additional or amended answer proposed to be filed by leave of court without any affidavit attempting to account for the mistakes or omissions proposed to be corrected or supplied. It was therefore rejected. A petition under oath was then filed praying for leave to file a supplemental answer; but it was refused under the circumstances. In Calvert v. Carter, 18 Md. 73, 83, 108, upon a petition to amend an answer, the court was of the opinion that every fact and aver- ment stated in the supplemental answer was known to the defendant when the original answers were filed, and therefore refused to allow the amendment. In Brendel v. Strobel, 25 Md. 395, 400, a creditors' bill case, the defendants filed exceptions to the auditor's account, and proposed to amend their answers previously filed by incorporating therein pleas of limitations. The court refused to allow such amendments, being §189-190 General principles op pleading. 240 defendant must move to put in an amended answer, and ac- company his motion with an affidavit, in which he must swear that when he put in his original answer he did not know the circumstances upon which he applies, or any other circum- stances upon which he ought to have stated the facts other- Wise, 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. 8 §190. Method of making amendments. — Short and un- important amendments may be made 1 by interlineation; such as the correction of a verbal error; the alteration, striking out. or introduction of a name; or the making of a single allega- tion not materially varying the general structure of a case. 2 But amendments of greater length should be made by filing a. new bill containing such amendments, designated in some way sufficient to point them out to the defendant. 3 too late. As to amendments settting up the statute of limitations, see Beach, Eq. Pr. sec. 400. Other instances will be found in the cases cited above upon this subject; see also Bowie v. Stonestreet, 6 Md. 418, 433; Claude v. Handy, 83 Md. 225, 235-236. 8 Thomas v. Doub, 1 Md. 252, 323; McKim v. Thompson, 1 Bl. 150, 162; Calvert v. Carter, 18 Md. 73, 82, 108. As to the practice in the federal courts, see U. S. equity rule 60- 1 See in general Foster, Fed. Pr. sec. 162; Beach, Eq. Pr. sees. 153, 402. U. S. equity rule 28 provides for the amendment of bills in mat- ters of form, as of course. 2 Walsh v. Smyth, 3 Bl. 9, 21; the plaintiff should not be permitted by interlineation to confuse the new with the original matter; or by an amended bill to recite all the allegations, and all the changes in the- original bill, making a complete duplicate of the record. See also Scarlett v. Academy, 43 Md. 203, 208, a case at law. 3 As in Wagoner v. Wagoner, 77 Md. 189, 193, and many other cases ;.' compare Alex. Ch. Pr. no. CHAPTER XI. Cross-bills; supplemental bills; abatement and revivor. §191. Cross-bills; nature; equity rules. 192. Subject must be germane to the original bill. 193. Supplemental bills; nature and purpose. 194. Change of parties; occurrence after filing of bill. 195. Leave of court; allegations and parties. 196. Supplemental bill after decree. 197. Bill in the nature of a supplemental bill. 198. Abatement; definition; how caused. 199. Code provisions as to making new parties. 200. Purpose of the statutes. 201. Statutory provisions in certain cases. 202. Revivor after final decree. 203. Parties to the proceedings to revive. : , 204. Revivor by defendants. 205. Proof of the right to revive. 206. In case of marriage. 207. The latest statute. §191. Cross-bills ; nature ; equity rules. — A cross- bill 1 is a bill brought by a defendant in a suit against the plain- tiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in questions in the original bill. Such a bill might be used either for discovery in relation to matters in issue in the original suit, or to obtain full relief to all parties touohing the matters of the original bill. 2 *In Hooper v. Central Trust Co., 81 Md. 559, 576, it is said that a cross-bill is generally considered as a defence or as a proceeding to procure a complete determination of a matter already in litigation in the court. Upon the general subject see Story, Eq. PI. sees. 389-402, 628-633, 832; Beach, Eq. Pr. sees. 421-448; Foster, Fed. Pr. sees. 169-173; Dan- iell, Ch. Pr. 1548-1556; Alex. Ch. Pr. in; Langdell, Eq. PI. sees. 149- 166. 2 Story, Eq. PI. sec. 389; Shields v. Barrow, 17 How. 130, 145; Mor- gan's Co. v. Texas Co., 137 U. S. 171, 200-201. Cross-bills for discovery arose from the old rule in equity that the plaintiff in a suit could not be examined as a witness in that suit; and if his testimony was wanted by the defendant as to any material facts, it was required to be obtained by a cross-bill; Story, Eq. PI. sec. 390. A cross-bill for discovery became practically useless even prior to the adoption of equity rule 24; code, art. 16, sec. 143; for the act of 1785, 16 241 §191 Cross-bills. ,242 As a general rule, whenever the defendant seeks affirmative relief and relies upon the equities of his case for anything beyond defence, he must file a cross-bill; 3 the principal exception is in cases of specific performance. 4 Cross-bills for discovery only are not now allowed; but the defendant is at liberty, instead thereof, to file interrogatories to the plaintiff. 5 A cross-bill is in the nature of a proceeding in the original cause; it is a mere auxiliary suit and a dependency of the original. 6 A plaintiff in the cross-bill cannot compel an answer to his cross-bill, until he has himself answered the original bill. Testimony taken in the original cause may be used at the hearing of the cross cause; and, regularly, the two causes ought to be heard to- gether. An answer to a cross-bill may be enforced by the same proceeding as is used to compel an answer to an original bill. 7 The plaintiff in a cross-bill cannot contradict the asser- tions of his answer in the original suit. 8 It is provided by the equity rule that no other reference shall be made to the matters contained in the original bill than shall be necessary, but the same may be treated as if incorporated therein. 9 The equity rules regulating the form of bills apply also to cross-bills.- If no new parties are introduced, service of a copy of the cross- bill on the solicitor of the plaintiff or plaintiffs in the original suit shall be sufficient. But where other persons are made parties, the service or notification shall be the same as provided ch. 72, sec. 21, (code, i860, art. 16, sec. 106), provided for interroga- tories to be put by the defendant to the plaintiff. See also Alex. Ch. Pr. in. • 3 See the authorities collected in Beach, Eq. Pr. sees. 426, 428-430. "Story; Eq. PI. sec. 394; Daniell, Ch. Pr. 1551, and notes. Another exception is in cases of account; Langdell, Eq. PL sec. 156. 5 Equity rule 26; code, art. 16, sec. 145; for the procedure in refer- ence to the interrogatories, see equity rule 25; code, art. 16, sec. 144; and ante, sec. 90. "Hooper v. Central Trust Co., 81 Md. 559, 576. As to when a cross-bill should be filed, see Beach, Eq. Pr. sees. 438-439. 7 Alex. Ch. Pr. in. 8 Glenn v. Clark, 53 Md. 580, 601. ••Equity rule 26; code, art. 16, sec. 145; see Beach, Eq. Pr. sees. 443-444- 243 Cross-bills. §191-192 in the equity rules in respect to notice, or service of process ' upon defendants in original bills, together with the cross-bill. 10 §192. Subject must be germane to the original bill. — A subject which is not germane to a pending controversy cannot by means of a cross-bill be injected into the litigation; but a cross-bill may set up additional facts not alleged in the original bill where they constitute part of the same defence and relate to the same subject matter. Although its allegations must relate to the subject matter of the original bill, it is not re- stricted to the issues under it. 1 The relief prayed should be equitable relief, 2 but as against the plaintiff in the original bill, the cross-bill need not show any ground of equity to support the jurisdiction of the court, being treated as a mere auxiliary 10 Equity rule 26; code, art. 16, sec. 145; this allows the making of new parties by a cross-bill, which was said to be improper in Shields v. Barrow, 17 How. 130, 145; see Beach, Eq. Pr. sec. 436;' Daniell, Ch. Pr. 1548, and notes. See also Cochran v. Pascault, 54 Md. 1, which was a proceeding by bill to foreclose a mortgage; instead of answering the bill, the mortgagors filed a cross-bill, praying that the mortgage be cancelled. As to staying proceedings on the original bill, see Beach, Eq. Pr. sees. 441-442. 1 Hooper v. Central Trust Co., 81 Md. 559, 576; where a decree on the plaintiff's bill will not determine the litigation, the imperfection may be remedied by one or more cross-bills filed by one or more of the defendants against the plaintiffs, and if this has not been done and the difficulty appears at the hearing, the cause may be directed to stand over for the purpose. The plaintiff in the cross-bill is not, at least against the plaintiff in the original bill, obliged to show any ground of equity to support the jurisdiction of the court. On page 582, it is said that the subject there mentioned was foreign to the ob- ject of the original bill and could not be considered under the cross- bill. See also Beach, Eq. Pr. sees. 433-435; Story, Eq. PI. sec. 631; Allen v. Fury, S3 N. J. Eq. 35, 36. In Chicago R. Co. v. Chicago Bank, 134 U. S. 276, 288-289, it was held that a cross-bill may be amended so as to work a change in the ground of the relief sought when the proofs which make it neces- sary are furnished by the original plaintiff in support of allegations in the original bill. If the original bill be dismissed, a cross-bill praying relief may be retained to be proceeded with as an original bill, and affirmative relief be given; see Beach, Eq. Pr. sec. 447. 2 Story, Eq. PI. sec. 398. §192-193 Supplemental bills. 244 suit. 3 Cross-bills are not now usual or encouraged, when the same purpose can be attained and equal justice awarded be- tween the parties to the original suit, whether as between plain- tiff and defendant, or as between co-defendants. The tendency is to dispense with them as far as practicable, so as to curtail litigation and expense. Where possible, the answer is viewed in the light of a cross-bill, and made the foundation for a de- cree. 1 A cross-bill which makes no defence that was not equally available by way of answer to the original bill will be dismissed. 5 §193. Supplemental bills ; nature and purpose. — A supplemental bill 1 is said to be merely an addition to the orig- inal bill in order to supply some defect in its original frame or structure. At one time supplemental bills were used to supply defects which could not be cured because of the expiration of the time allowed for amendment. But now, as amendments may be made at any stage of a cause before final decree, sup- plemental bills are no longer needed for that purpose; and in- 3 Story, Eq. PI. sec. 399; Daniell, Ch. Pr. 1549. 4 Young v. Twigg, 27 Md. 620, 632, per Johnson, special judge; ap- parently approved by the court on pages 641-642. In many States, statutes enable a defendant by his answer to claim and receive the re- lief usually given by cross-bill; Daniell, Ch. Pr. 1551, note. 5 Glenn v. Clark, 53 Md. 580, 601; in this case the cross-bill asked for certain relief to which the court held they were not entitled; as this was the only affirmative relief prayed, there remained no other ground on which the cross J bill could be maintained. Nor could new matter of defence, not mentioned in the answer to the original bill, be pre- sented by a cross-bill. In Brown v. Chesapeake, &c, Co., 73 Md. 567, 590, 606, per Alvey, C. J., an answer was treated as in the nature of a cross-bill. See Beach, Eq. Pr. sec- 422. Under equity rule 31; code, art. 16, sec. 159; a petition in the nature of a cross-bill may be used by a defendant against third persons liable jointly with him in cases where the plaintiff may have a joint and several claim or demand against several persons defendant either as principals or sureties. For an instance of a cross-bill, besides those in the cases above cited, see Tome v. King, 64 Md. 166, 173-174. 1T Jpon the general subject, see Daniell, Ch. Pr. 1513-1539; Story, Eq. PI. sees. 332-3441 Beach, Eq. Pr. sees. 490-512; Foster, Fed. Pr! sees. 187-192; Stewart v. Duvall, 7 G. & J. 179, 186-188. 245 Supplemental bills. §193-194 deed a supplemental bill cannot now be used when its purpose may be obtained by amendment. 2 The rule was that if after a suit was instituted any circumstance occurred which, without abating the suit, occasioned an alteration in the interest of any of the parties, or rendered it necessary that new parties should be brought before the court, the proper method of doing so was by supplemental bill. 3 §194. Change of parties ; occurrence after filing of "bill. — Instances of supplemental bills are in cases where by reason of the death, assignment, or bankruptcy of the plain- tiff, a change occurs in the person prosecuting the suit; or cases where the interest of a plaintiff suing in a representative capacity, as executor or trustee, becomes vested in some other person. 1 In such cases, to entitle the new party to file a sup- plemental bill and thereby obtain the benefit of the former pro- ceedings, it must be in respect to the same title, in the same person, as stated in the original bill. In cases where the bill is filed by a person in a representative capacity, if the interest of the party entirely determines by death or otherwise, and some 2 Story, Eq. PI. sees. 332-335; Beach, Eq. Pr. sec. 492; Foster, Fed. Pr. sec. 187. In Collateral Bank v. Fowler, 42 Md. 393, 398, it is said that such a bill may be "necessary, first, in respect of some defect in the original bill, or in some of the proceedings upon it; or, secondly, in respect of new evidence discovered, or of some event occurring, subsequent to the filing of the bill, which gives a new. interest in the matter in dispute to a person who is not a party to the bill." See also Ridgeway v- Toram, 2 Md. Ch. 303, 315. A supplemental bill may be filed to add parties where the pro- ceedings are in such a state 'that the original cannot be amended for that purpose; Collateral Bank v. Fowler, 42 Md. 393, 398; and see Burch v- Scott, 1 Bl. 112, 121-122, in which the bill was held not to be a supplemental bill. The original and supplemental bills constitute but .one record; Swan v. Dent, 2 Md. Ch. in, 116; compare Walsh v. Smyth, 3 Bl. 9, 20. 3 Daniell, Ch. Pr. 1515; Story, Eq. PI. sec. 888. 'As in O'Hara v. Shepherd, 3 Md. Ch. 306, 312, where a bill was filed by a guardian, and a supplemental one by his successor in the guard- ianship. The statements in the text should be read in connection with sees. 5 and 7 of article 16 of the code, sub-title "abatement and re- §194 Supplemental bills. 246 other person becomes entitled to the same property, under the same title, as in cases of new assignees in bankruptcy, the suit may be added to or continued by supplemental bill; for in such cases there is no change of interest which can affect the questions between the parties, but only the change of the per- son in whose name the suit must be prosecuted. 2 New events occurring after the filing of the bill should be brought forward by supplemental bill, as such facts cannot be introduced by amendment to the bill. 3 An instance is where a plaintiff, pending the suit, acquires a new title to the property in controversy. In such a case, if an original bill is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental bill, founded on events which have sub- vivor" ; see also the sections in this chapter in regard to abatement and revivor, post, sees. 198-207. 2 Collateral Bank v. Fowler, 42 Md. 393, 399; in this case a suit was brought by Fowler as assignee for the benefit of creditors of a firm, for the cancellation of certain certificates of stock. The defendants duly answered. Afterwards the members of the firm were declared bankrupts, and G. was appointed assignee in bankruptcy. G. there- upon filed a supplemental bill, with leave of the court, reciting the facts and stating that the suit should be prosecuted in his name. One of the defendants demurred to the supplemental bill, objecting that there was no privity of title between the plaintiff in the original bill and the plaintiff in the supplemental bill; and that G. should have filed an original bill in the nature of a supplemental bill. The court held that the only change in the case was in the person to prosecute the suit; the subject matter was the same, and the relief prayed was the same; and that there was no occasion for an original bill in the nature of a supplemental bill. In this case the decision in Winn v. Albert, 2 Md. Ch. 42, is cited and followed; that case was as follows: -Winn and Ross, as conven- tional trustees for the benefit of the creditors of Jones, filed a bill to set aside a decree obtained against Jones. Jones afterwards applied for the benefit of the insolvent law, and Winn and Ross were ap- pointed his permanent trustees. They then filed their petition to be admitted to file a supplemental bill in their new capacity. The objec- tion to the new bill was that it was antagonistic to the title relied on in the original bill; but it was decided otherwise; it was conceded that the new plaintiff could not have the benefit of the prior bill except in respect to the same title as stated in the original bill. See Story, Eq. PI. sees. 340-342. s Ante, sec. 187; Stafford v. Howlett, 1 Paige, 200, 201; Story, Eq. PL sees. 336, 888; compare Crapster v. Griffith, 2 Bl. 5, 19; Hiss v. Balto. R. Co., 52 Md. 242, 254. 247 Supplemental bills. §194-195 sequently taken place, or upon a title subsequently acquired. A plaintiff cannot support a bad title by acquiring a good one after the filing of the original bill and bringing the good title forward by supplemental bill. In such a case a new bill should be filed. 4 But if an original bill is sufficient for one kind of relief, and facts afterwards occur which entitle the plain- tiff to other or more extensive relief, he may have such relief by setting out the new matter in a supplemental bill. 5 A sup- plemental bill, may be used by a defendant where a matter of defence arises after the filing of an answer ; in this case the de- fendant should file a supplemental bill, and not a supplemental answer. §195. I,eave of court; allegations and parties. — The filing of a supplemental bill is not a matter of course, but only by leave of the court upon sufficient cause shown. In a 4 Winn v. Albert, 2 Md. Ch. 42, 47-48; Bannon v. Comegys, 69 Md. 411, 422; in the latter case a demurrer to a bill for the want of interest on the part of the plaintiff in the subject-matter of the suit was sus- tained, but the bill was retained for amendment; the plaintiff then ac- quired an interest in the subject-matter, and filed a supplemental bill; the latter could not be received, as such title could only be asserted by a new bill, and not by a supplemental bill. In a case stated in Winn v. Albert, 2 Md. Ch. 42, 47-48, a plaintiff sued as heir-at-law, but upon an issue was found not to be heir-at-law; in the meantime he had purchased the right of a third person who claimed to be heir, and set out his new title by supplemental bill; but a demurrer was allowed. See also Story, Eq. PI. sec. 339; Beach, Eq. Pr. sees. 495-496. 5 Winn v. Albert, 2 Md. Ch. 42, 47-48; when any event happens which gives a new interest or right to a party it should be' set out by a sup- plemental bill. e Story, Eq. PI. sees. 337 a, 903; Pue v. Pue, 4 Md. Ch. 386, 390; in this case, which was brought to obtain an injunction restraining the de- fendant from closing a road on his lands, in which the plaintiff claimed a priv«te right of way, the defendant filed his answer, and afterwards filed a supplemental answer, charging that since the filing of the orig- inal answer the plaintiff had conveyed away to a third person all his interest in the land. The court ordered the latter answer to be taken off the file, and said "the proper mode in such cases is to file a bill in the na- ture of a supplemental bill, which seems to be a bill in the nature of a plea puis darrein continuance at the common law." A cross-bill may also apparently be used; Story, Eq. PI. sec. 393. See also ante, sec. 189, note; compare Coburn v. Cedar Co., 138 U. S. 196, 222. §195-196 Supplemental bills. 248 doubtful case the court may direct notice of the application to be given to the defendants who have appeared. 1 A supple- mental bill must state the original bill and the proceedings thereon, and must state the new event that has occurred, or the change of title that has taken place, which made the supple- mental bill necessary. 2 In general, when a supplemental bill is brought against a new party, the original defendants need not be made parties to the* supplemental bill unless they have an interest in the supplemental matter; 3 and so when a supple- mental bill is filed to bring in a new party in interest, such new party alone should be made to answer it.* The defendant may test the propriety of a supplemental bill by demurrer. 5 §196. Supplemental bill after decree.— Thus far ref- erence has been made to supplemental bills filed before a de- cree ; but they may be filed after as well as before a decree. If after a decree, the bill may be either in aid of a decree, that it may be carried into full execution, or that proper directions 1 Winn v. Albert, 2 Md. Ch. 42, 47. , In Collateral Bank v. Fowler, 42 Md. 393, 395, the application was in writing for leave to file the supplemental bill, and for an order requiring the defendants to answer the same, whereupon the court passed an order granting the leave and commanding the defendants to answer by a day certain. In Feigley v. Feigley, 7 Md. 537, 560, the supplemental bill was received without objection on the part of the defendants; the court therefore treated it as part of the case. See also Beach, Eq. Pr. sees. 500-504; U. S. equity rule 57. 2 Story, Eq. PI. sec. 343; Beach, Eq. Pr. sec. 505. In Brooks v. Brooke, 12 G. & J. 306, 317, a bill which set out the previous proceedings of the court as a portion of the facts out of which the plaintiff's equity arose, though alleged to be on its face a supple- mental bill, but did not seek to alter or amend any decree or order passed in the cause, was held neither a supplemental bill, nor a bill in the nature of a bill of review, but an original bill. Compare White v. Joyce, 158 U. S. 128, 143-145. and U. S. equity rule 58. s Story, Eq. PI. sec. 343; Beach, Eq. Pr. sec. 506; compare Shaw v. Bill, 95 U. S. 10, 14. 4 Calwell v. Boyer, 8 G. & J. 136, 149; see also Boyd v. Harris, 1 M'd. Ch. 466, 473. As to the proceedings upon supplemental bills, see Beach, Eq. Pr. sees. 508-510. 'Collateral Bank v. Fowler, 42 Md. 393, 395-396; compare O'Hara v. Shepherd, 3 Md. Ch. 306, 310. 249 Supplemental bills. §196-197 may be given upon some matter omitted in the original bill, or not put in issue by it or the defence made to it. Such a bill must not seek to vary the principle of the decree, but taking the principle of the decree as a basis, seek merely to supply any omissions in it, or in the proceedings which led to it, so as to enable the court to give full effect to its decision. 1 So also after decree a supplemental bill may be used to bring forward parties before the court who were omitted, but after- wards found to be necessary. Such new parties may make any objection to the decree which might have been made at the first hearing. 2 §197. Bill in the nature of a supplemental bill. — An original bill in the nature of a supplemental bill is said to be one which is filed when the interest of the plaintiff or defendant J-Handy v. Waxter, 75 Md. 517, 524; Stewart v. Duvall, 7 G- & J. 179, 186-188; O'Hara v. Shepherd, 3 Md. Ch. 306, 310-311; in the latter case a bill was brought by a guardian against an administrator for an account of the estate of the deceased. A decree to account was passed, and afterwards the plaintiff filed a supplemental bill attacking a partic- ular transaction of the administrator with an asset of the estate, and prayed for a sale of the security and for a receiver. The court held that the supplemental bill did not make a new case, or seek to vary the principle of the decree to account. The bill supplied new elements for the account by introducing matters omitted in the original bill. If the bill had made a new case, so that any relief granted upon it would vary the principle of the decree, the bill should not have been filed. See Story, Eq. PI. sec. 338; Root v. Woolworth, 150 U. S. 401, 411. 2 Handy v. Waxter, 75 Md. 517, 524-525; Stewart v. Duvall, 7 G. & J. 179, 186. In Handy v. Waxter, 75 Md. 517, 524-525, a decree had been made for the sale of property, the sale was made, the purchaser excepted to the ratification, and on appeal the order of the court sus- taining the exception was affirmed, on the ground that certain persons not parties were proper parties in order to give a clear title. The court said that the omitted persons could be made parties by supplemental bill. In Stewart v. Duvall, 7 G. & J. 179, as stated in Handy v. Wax- ter, 75 Md. 517, 525, it was held that after decree for the sale of mort- gaged property, new parties, alleged to have an interest in the prem- ises, might be added to the decree by supplemental bill. See Owings v. Rhodes, 65 Md. 408, 415, as to a supplemental bill to bring in new parties in an interpleader suit, after decree. §197 Supplemental bills. 250 suing or defending, wholly determines, and the same property- becomes vested in another person not claiming under him. 1 The question whether in case of a change in plaintiffs a supple- mental bill may be filed or an original bill in the nature of a supplemental bill must be used, is said to be of importance. The difference in practical results is that upon the filing of a supplemental bill, if there has been no decree, the case may proceed in the same manner as if the original plaintiff had continued such, except, of course, that the defendants must answer the supplemental bill, and either admit or put in issue the title of the new plaintiff. But when an original bill in the nature of a supplemental bill is filed, the whole case is open; a new defence may be made; the pleadings and proof cannot be used as if taken in the same cause, and the decree, if any has been obtained, is not binding. 2 But there does not seem to be any general rule determining the cases in which the transmis- sion of interest of a sole plaintiff to another party renders the one or the other form of proceeding applicable. The test, how- ever, appears to be whether the change of interest in the sub- ject matter was such as to render the proceedings only de- fective, or whether the suit abated; in the former case a supple- mental bill only is necessary; in the latter, an original bill in the nature of a supplemental bill is required. 3 iSee in general Story, Eq. PL sees. 345-353; Daniell, Ch. Pr. 1521- 1522; Foster, Fed. Pr. sec. 190-193. The distinction between a supplemental bill and a bill in the na- ture of a supplemental bill is said to be purely technical and not closely observed. The most prominent distinction appears to be that a supple- mental bill is properly applicable to those cases only where the same parties or the same interests remain before the court; whereas an orig- inal bill in the nature of a supplemental bill is properly applicable when new parties with new interests arising from events since the in- stitution of the suit, are brought before the court; Story, Eq. PI. sec. 345- For an instance of an original bill in the nature of a supple- mental bill, see District Lodge v. Jedidjah Lodge, 65 Md. 236, 243-244. Collateral Bank v. Fowler, 42 Md. 393, 397; in the case of a supple- mental suit the benefit of the original decree is given the new plaintiff and he is entitled to stand in the place of the original plaintiff and have the benefit of the proceedings on the original bill; compare Ful- ton v. Greacen, 44 N. J. Eq. 443, 447-449. Collateral Bank v. Fowler, 42 Md. 393, 397-398; the quotations 251 Abatement. §198 §198. Abatement; definition; how caused. — As used in courts of equity, abatement 1 signifies a present suspen- sion of all proceedings in a suit, for the want of proper parties capable of proceeding therein. When an equity case abates, 2 it is merely in a state of suspended animation, and may be re- vived. 3 Revivor is the term applied to a bill to continue the proceedings after they have abated.* Formerly abatement might occur either from death of any party to a cause, or from the marriage of a female plaintiff. 5 If in the progress of a suit a material party, plaintiff or defendant, died, unless his interest determined by that event, or devolved on some other party, the suit abated; and all further proceedings, except the pro- made by the court from text writers show that the two kinds of bills are not always clearly distinguished; see page 399, "whether the bill be called a supplemental bill or an original bill in the nature of a sup- plemental bill"; and see Story, Eq. PI. sec. 34s; compare Ross v. City, 58 Fed. Rep. 404, 406. J See in general Story, Eq. PI.- sees. 354-387; Daniell, Ch. Pr. 1506- 1547: Beach, Eq. Pr. sees. 481-489; Foster, Fed- Pr. sees. 174-186. 2 At law, abatement is an entire destruction of the suit, so that it is absolutely at an end; Story, Eq. PI. sec. 354. 3 Story, Eq. PI. sec. 354; Glenn v. Hebb, 17 Md. 260, 262, per Devec- mon, J.; but the word seems to be sometimes used as meaning extinc- tion, and not merely suspension; thus in Thomas v. Thomas, 57 Md. 504, 507, the court said in reference to a suit for divorce that the case as to the marital relation of the parties "could not be prosecuted against the deceased husband; as to him, the suit had abated"; and the same idea is conveyed by the words of the code, art. 16, sec 1, that "no suit in chancery shall abate by the death of any of the parties in cases where the rights involved in the suit survive." In Griffith v. Bronaugh, 1 Bl. 547, 548, the chancellor spoke of "the suit having been terminated by abatement"; and in Walsh v. Smith, 3 Bl. 9, 22, it was said that the suit was "totally at an end"; compare Hall v. McPher- son, 3 Bl. 529, 539; McCurley v. McCurley, 60 Md. 185, 189-190. 4 The effect of reviving a suit which would otherwise abate is to ena- ble the representatives of the deceased to obtain the relief which the deceased if living would have been entitled to; Brogden v. Walker, 2 H. & J. 285, 293. 5 In Glenn v. Clapp, 11 G. & J. I, 5, it was said that the insolvency or bankruptcy of the plaintiff or defendant renders the suit so far defect- ive that the trustee or assignee must be brought) before the court. And in Hall v. McPherson, 3 Bl. 529, 538-539, it is said that a discharge under the insolvent law, does not, as in case of death, effect a total ex- tinction of the rights of a party; hence, although an insolvent dis- §198 Abatement. 252 ceedings to revive, were suspended until it was revived against or in favor of the person succeeding to the interest of the de- ceased party. 6 This, however, was only to be understood of cases where the interest of such party, or that which he repre- sented, survived. Thus if two joint tenants were plaintiffs, and one died, the suit would not abate, as the whole interest be- longed to the survivor; so if the plaintiff in a bill of inter- pleader died after a decree requiring the defendants to account, there would be no abatement. 7 And where there were several plaintiffs or several defendants, all having an interest which survived, the death of any of them made an abatement only as to himself, and the suit continued as to the rest who were liv- ing. 8 A suit likewise abated by the marriage of a female plain- tiff, and was revived in the joint names of the husband and wife. 9 It is now provided by statute that no suit in chancery charge cannot be said to be strictly an abatement of the suit, yet it renders it as defective as if it had been abated by death; and the defect must be remedied before the suit can proceed, the method being by a supplemental 'bill in the nature of a bill of revivor. To the same effect is Collateral Bank v. Fowler, 42 Md. 393, 400. "Alex. Ch. Pr. 101, 103; Glenn v. Clapp, n G. & J. 1, 8; Hurt v. Stull, 4 Md. Ch. 391, 392; compare Whelan v. Cook, 29 Md. 1, 8; Tilly v. Tilly, 2 Bl. 436, 440. It is a general rule that in all cases where a plaintiff or defendant dies whose entire interest is inseparably mingled with that of other par- ties and yet does not devolve upon any of them, the suit abates, and no further proceedings can be had until it has been regularly revived; but this does not always apply to creditors' suits; if one of the plain- tiffs dies, the suit does not abate if there be any other creditor as plain- tiff; but if the defendant in a creditors' suit dies, the case must be re- vived; Austin v. Cochran, 3 Bl. 337, 339-341. If the interest of a deceased defendant could be separated from the interests of the other defendants a decree might be passed as to the surviving defendants, reserving the interests of the deceased for further consideration; Neale v. Hagthrop, 3 Bl. 551, 599-600. As to abatement in cases where an injunction has been granted, see Walsh v. Smyth, 3 Bl. g, 23-24; post, sec. 612. 'Story, Eq. PI. sees. 356-358, 362; see these sections for other in- stances. 8 Story, Eq. PI. sec. 369; as in the case of the death of one plaintiff in a creditors' suit; Austin v. Cochran, 3 Bl. 337, 339. "Alex. Ch. Pr. 101, 103. 253 Abatement. §198-199 shall abate by the death of any of the parties in cases where the rights involved in the suit survive. 10 §199. Code provisions as to making new parties. — The code provides that if any of the parties, whether plaintiff or defendant, shall die after the filing of the bill or petition, it shall not be necessary to file a bill of revivor; but any of the surviving parties may file a suggestion of such death, setting forth when the death occurred, and who is the legal represent- ative of such deceased party, and how he is representative, whether by devise, descent or otherwise. 1 Upon such sug- gestion, a subpoena shall issue for the legal representative of the deceased party, commanding him to appear and be made a party to such suit, if such representative resides in this State ;. and if such representative is a non-resident, then such notice shall be given, instead of the subpoena, as is provided for non- resident defendants. 2 Any representative of a deceased party 10 Code, art. 16, sec. i; Diffenderffer v. Griffith, 57 Md. 81, 84. The act forbids the idea of abatement; Glenn v. Hebb, 17 Md. 260, 281; compare Whelan v. Cook, 29 Md. 1, 8. In Thomas v. Thomas, 57 Md. 504, 507, a decree of divorce passed against a wife, from which she appealed, and pending the ap- peal the husband died; the rights of .the wife in respect to the marital relation were extinguished, but her property rights in her husband's- estate survived; and the appeal could be prosecuted against his exec- utor, heir at law, &c, upon their being made parties. iCode, art. 16, sec. 2. The code provisions are based upon the act of 1820, ch. 161. In Labes v. Monker, 1 Bl. 130, note case, chancellor Kilty laid down six rules as to the manner of proceeding under the act of 1820; these rules apply particularly to an application to revive made by the representative of a plaintiff, against the defendant; Alex. Ch. Pr. 107-108. In Foster, Fed. Pr. sec. 178, it is said that the only methods of reviving a suit in equity in the federal courts seem to be a bill of re- vivor, a bill in the nature of a bill of revivor, a bill of revivor and sup- plement, or a supplemental bill in the nature of a bill of revivor. 2 Code, art. 16, sec. 3. The first principles of justice demand that before the court shall 1 finally adjudicate upon the rights of the representatives of a deceased* party, an opportunity be afforded them to vindicate those rights. An admission by the surviving parties that the interest of the deceased has been extinguished will not dispense with the necessity of bringing; §199-200 Abatement. 254 may appear and suggest in writing the death of the party under whom he claims, and be made a party in place of the person so dying, and proceed with the suit, on giving such notice to the opposite party as the court may direct. 3 §200. Purpose Of the Statutes. — The statute authorized a party to pursue the course therein prescribed in place of filing a bill of revivor; 1 and it thus became unnecessary to file such a bill, as the statute allowed a different procedure. It did riot abrogate the mode of reviving a suit by bill of revivor, but gave a new method of attaining the object which before could only be effected by such a bill. The statute being cumulative, a party may revive either by that mode or by original bill of re- vivor. 2 The statute was intended to provide a course of pro- ceeding less expensive and dilatory than the previous method by bill of revivor, the general object being to shorten and invig- orate the proceedings in chancery. 3 It can only be used by his representatives before the court; Glenn v. Clapp, n G. & J. I, 6; Holthaus v. Nicholas, 41 Md. 241, 263-264. 3 Code, art. 16, sec. 4. By code, art. 16, sec. 9, it is provided that "if any represent- ative of a deceased party shall fail to appear after being summoned, within four days after the return day of the subpoena, or shall fail to appear after notice by publication, the court may order the appear- ance of such representative to be entered; to have the same effect as if such representative had appeared in person and been made a party." a In Glenn v. Hebb, 17 Md. 260, bills of revivor were filed; for the practice (now unimportant), see Alex. Ch. Pr. 104-105 ; Story, Eq. PL sees. 617-626, 829-832; compare Somerville v. Trueman, 4 H. & McH. 43. 45-47; as to the frame of bills of revivor, see Story, Eq. PI. sees. 374-375- 2 Hall v. Hall, 1 Bl. 130, 132; it is provided by code, art. 16, sec. 12, that "a bill of revivor or supplemental bill in the nature of a bill of revivor, may be filed instead of a suggestion of the death of the party, and no- tice thereof shall be given to the party against whom the same may be filed, if a resident of this State, by subpoena, or service of a copy of such bill of revivor or supplemental bill, as the court may direct; or if the party be a non-resident, or secrete himself, or evade the service of the summons or copy, or if the residence of the party be unknown, then notice by publication may be given as against non-resident de- fendants." 3 AUen v. Burke, 1 Bl. 544; Griffith v. Bronaugh, 1 Bl. 547, 548; Franklin v. Franklin,.! Md. Ch. 342, 344. 255 Abatement. §200-201 parties who might, independently of its provisions, revive the suit by a proper bill of revivor.* It is a course of proceeding which can only be used in place of a mere naked bill of revivor by which the person in whom the title is vested is the sole fact to be ascertained, and nothing more. 5 §201. Statutory provisions in certain cases. — Pro- visions have been made for cases of abatement by the death of any party after a cause has been set down for hearing, or sub- mitted for decree, but before decree; 1 and for cases of death of a defendant after a decree for an account, sale or partition, or after such other proceedings as would have warranted the passing of such decree, or after answer by the deceased con- fessing the facts stated in the bill, or setting up no defence. 2 ^Griffith v. Bronaugh, i Bl. 547, 548; Hall v. Hall, 1 Bl. 130, 132. 5 Hawkins v. Chapman, 36 Md. 83, 97; Hall v. Hall, 1 Bl. 130, 132; but the defendant may apparently urge any other defence as well as that of parties; as in Glenn v. Hebb, 17 Md. 260, 269, 282; see Story, Eq. PI. sees. 377, 868, a. An original bill in the nature of a bill of revivor is to be used where other facts beside the question of the new party are to be liti- gated. A bill of revivor is founded upon mere privity of blood or rep- resentation by operation of law. Thus the heir may be made a party by a bill of revivor; but a devisee must come in by a bill in the nature of a bill of revivor; for he comes in as a purchaser, in privity of estate or title, which may be disputed. Story, Eq. PI. sees. 377-379. A bill of revivor and supplement is proper where not only an abatement has occurred, but defects are to be supplied or new events are to be stated; Story, Eq. PI. sec. 387. These technical distinctions are disregarded in Maryland; see Ridgely v. Bond, 18 Md. 433, 450. 1 Code, art. 16, sec. 6; the section provides that "if any party shall die after a cause has been set down for hearing, or submitted toy both par- ties as ready for decision, the decree may be passed as if such party were alive, he having a solicitor in court; and such decree shall have the same effect as if no death had occurred, except that it shall not be entitled to a preference in the distribution of assets, either real or per- sonal-" See Brogden v. Walker, 2 H. & J. 285, 289-290; Alex. Ch. Pr. 101. 2 Code, art. 16, sec. 7; the court may in its discretion order the case to be proceeded in as if no death had occurred, or may order a bill of revivor or a supplemental bill to be filed, and the proper representa- tive of such deceased defendant to be made a party, as may seem best calculated to advance the purposes of justice; provided, &c. This act was intended to cure the evil resulting from the death §201-202 Abatement. 256 Also for cases where an executor or administrator dies who- was originally, or has been made, a party; 3 and for proceedings, as against a non-resident, against any representative of a deceased party who secretes himself or evades service of process, 4 or leaves the State before the service; 5 and in case of death when an appeal has been prayed to the court of appeals. 6 §202. Revivor after final decree. — The proceed- ings to revive a suit abating after final decree, prior to the statutory provisions, are stated in the note. 1 The present statute 2 provides that if any of the parties to a suit of a defendant before a cause ripens into a final decree, and for that purpose authorizes the court in its discretion to order the cause to be proceeded in as if no death had occurred, or to direct a bill of revivor or a supplemental bill to be filed. It only applies, however, to the death of a defendant; Franklin v. Franklin, I Md. Ch. 342, 344. 3 Code, art. 16, sec. 5; the section provides that "where an executor or administrator dies who was originally a party, or has been made a party as the representative of a deceased party, the same proceedings as above stated shall be had to make the proper parties; and these provisions are 1 to apply to any series of deaths which may occur to rep- resentatives who are parties, or who are made parties in the progress of the suit." *Code, art. 16, sec. 10. B Code, art. 16, sec. n. 6 Code, art. 5, sees. 73-76; see Harryman v. Harryman, 49 Md. 67, 69-70; Thomas v. Thomas, 57 Md. 504, 508-509. a The act of 1820, ch. 161, did not embrace cases of abatement after final decree, its phraseology expressly referring to cases not brought to that stage. Until the act of 1842, ch. 229, sec. 2, the procedure in cases of abatement of this kind was to revive the decree by subpoena scire facias. This method could only be pursued by or against the heir or legal representative, or those related in blood or contract to the deceased party, and who as such were bound or benefited by the decree; b;ut they were precluded from going into the merits; (Story, Eq. PL sec. 370 a) ; and on the same principle the merits of the decree could not be questioned by an assignee or devisee. A subpoena scire facias could be obtained by petition, and upon its service, the court would in due course revive the decree. The proceeding was analogous to the revival of a judgment at law by scire facias; Allen v. Burke, 1 Bl. 544, 545-546; compare Hall v. Hall, 1 Bl. 130, 133; Coombs v. Jordan, 3 BL 284, 326; Glenn v. Clapp, 11 G. & J. 1, 7-8; Matthews v. Merrick, 4 Md. Ch. 364. 2 Code, art. 16, sec. 8: "provided, that the heir or other proper repre- 257 Abatement. §202 die after final decree, the court may order execution of such decree as if no death had occurred, or the court may order a subpoena scire facias to be issued, or a bill of revivor to be filed against the proper representatives of such deceased party, or pass such other order or direct such other proceedings as may seem best calculated to advance the purposes of justice. Upon the death of any party after decree, the court should be in- formed of the fact, so that, if deemed necessary from the nature of the cause that new parties or any other appropriate proceed- ing should be had, the court may determine upon the case. 3 The act is a remedial law, to be construed liberally; it was designed to supply an expeditious mode of reaping the fruits of decrees already passed, and which by the subsequent death of parties would have abated. It applies either to plaintiffs or defendants, but is confined to cases of death. It do.es not apply, however, to a decree subject to the statute of limitations, which the law presume to be satisfied. 4 Death after decree does not of necessity make revival necessary; it is in the discre- tion of the court, and may not be required. 5 The decree may be revived in order to recover costs. 6 sentative may appear, at any time before execution of said decree, and be admitted a party to the suit, on such reasonable terms as the court may prescribe, and such further proceedings may be had as may be necessary to a decision of said cause on its merits." See also code, art. 26, sec. 20. 3 Appold v. Prospect Bldg. Assn., 37 Md. 457, 466; if upon the sug- gestion of death no action were taken by the court, the intendment could 'be made that none was deemed necessary. ♦Franklin v. Franklin, 1 Md. Ch. 342, 343-345. A barred decree should be revived by subpoena scire facias; Matthews v. Merrick, 4 Md. Ch. 364; Coombs v. Jordan, 3 Bl. 284, 326; compare the facts in Steuart v. Carr, 6 G. 430, 440. 5 Rowland v. Prather, 53 Md. 232, 241 ; compare Thomas v. Thomas, 57 Md. 504, 509-510; Schley v. Mayor, &c, 29 Md. 34, 46. If a party die after decree for sale it should be revived before the sale is made, otherwise there is ground for exception to the sale; Schley v. Mayor, &c, 29 Md. 34, 46; Glenn v. Clapp, 11 G. & J. 1, 8; Appold v. Prospect Bldg. Assn., 37 Md. 457, 466; Holthaus v. Nich- olas, 41 Md. 241, 264; post, sec. 508. «Colegate D. Owings' case, 1 Bl. 370, 409; Ridgely v. Bond, 18 Md. 433, 449- 17 §203-204 Abatement. 258 §203. Parties to the proceedings to revive. — When either plaintiff or defendant dies, the proceeding to revive, whether by bill of revivor or suggestion of death, must be taken by or against the proper legal representative, according to the nature of the subject matter. 1 If real estate be in contro- versy, the heir at law or devisee must be made a party; 2 if, on the other hand, personal estate only is involved, the ex- ecutor, administrator or legatee must be made a party. 3 If both real and personal property are affected, both classes of representatives should be parties, or each class may revive to the extent of their respective interests.* The proceedings must be conducted by or against those in privity with the de- ceased, either as heir, devisee, executor, administrator or lega- tee. 5 It does not appear to be the duty of one party more than another to revive a proceeding." §204. Revivor by defendants. — Defendants or , their representatives may revive a suit in every case where they may derive a benefit from further proceedings. 1 Attempts have been made to limit to decrees to account the right of a defend- ant to revive, but the rule has been established as stated. Al- iHawkins v. Chapman, 36 Md.83, 97; code, art. 16, sec. 4, provides that any representative of a deceased party may appear, &c. ; see ante, sec. 199. 2 Austin v. Cochran, 3 Bl. 337, 340-341. 3 As in Hall v. Hall, 1 Bl. 130; Allen v. Burke, 1 Bl. 544. 4 Colegate D. Owings' case, 1 Bl. 370, 409; Ridgely v. Bond; 18 Md. 433. 45o; Glenn v. Hebb, 17 Md. 260, 282-283; compare Andrews v. Scotton, 2 Bl. 629, 660-661. 5 Hawkins y. Chapman, 36 Md. 83, 97-98; in this case the plaintiff did not stand in such relation to the deceased as to entitle him to become plaintiff in the bill of revivor. "Whelan v. Cook, 29 Md- 1, 8. If there are several plaintiffs and the defendant dies, some of them may proceed to revive without the others if they refuse; but the original plaintiffs who refuse to join should be made co-defendants in the proceedings to revive; Story, Eq. PL sees. 359-369; Alex. Ch. Pr. 103-104. [§204.] iRidgely v. Bond, 18 Md. 443, 449; in this case one of the de- fendants was held entitled to have a decree executed which abated by the deaths and marriages of some of the plaintiffs and defendants, in order that she might be allowed her costs and charges expended. Compare Colegate D. O wings' case, 1 Bl. 370, 409; Story, Eq. PL sees. 371-373- 259 Abatement. §204-205 though a decree may be against a defendant, yet upon the death of the plaintiff, the defendant is entitled to revive it if he has any interest in its execution. 2 The statute makes no distinction between plaintiff and defendant in the right to sug- gest a death. 3 §205. Proof of the right to revive. — The court is to be satisfied of the death of the party; and if an applicant desires to be made a party in place of the deceased, he must exhibit some proof of his being the legal representative. The proof may be a proper certificate of the granting of letters, or an affi- davit of his succession. The applicant's right to revive should appear at the hearing. 1 When a party to a suit seeks to make another person a party as the representative of a deceased party, his suggestion should be attended with proof similar to those required of an applicant seeking to become a party. 2 2 Hill v. Hill, 49 Md. 450, 454-455; in this case a decree of divorce against a wife gave the custody of a child to the father, with the privi- lege to the mother of having access to it at certain intervals. Upon the death of the father, the mother was entitled to have the decree revived against a party whom the father by his will appointed guardian of the child. It was contended that the mother had no standing to revive the decree; 'but it was held that she had rights which entitled her to have it revived and executed in her favor. 3 Code, art. 16, sec. 2. In Griffith v. Bronaugh, 1 Bl. 547, 548, it was said that it is a gene- ral rule that where a suit abates by the death of a party before the final decree, the defendant cannot have it revived, since no one can be com- pelled 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 where a defendant can derive a benefit from the further proceeding, he may revive. See the facts in this case; and compare Hall v. Hall, 1 Bl. 130, 133; Walsh v. Smyth, 3 Bl. g, 22; Hall v- McPherson, 3 Bl. 529, 534, 539- 1 Hawkins v. Chapman, 36 Md. 83, 97-98; Labes v. Monker, 1 Bl. 130, note case- If the applicant claims as devisee he should produce a proper copy of the will; if as heir at law, proof by ex parte affidavits are required of the death of the ancestor, and the heirship. 2Alex. Ch. Pr. 108. §206-207 Abatement. 260 §206. In case of marriage.— Before the passage of the statute, an action brought by a female, either as sole plaintiff, or as a co-plaintiff, abated upon her marriage. 1 The mar- riage of a female defendant did not operate as an abatement* Upon the marriage of a female plaintiff, the suit was revived by- bill of revivor. After a decree the process of subpoena scire facias was necessary. 3 The original act in relation to abate- ment and revivor applied only to cases of death and not to abatement by marriage;* but it is now provided 5 that no suit in equity shall abate by the marriage of any of the parties, but on application of any of the' parties the court may, on such terms and notice as it shall deem proper, allow and order any amendment in the pleadings, and the making of any new or additional parties that such marriage may render necessary or proper. 6 §207. The latest statute. — It is now provided that when any plaintiff, or any defendant, who has been duly sum- moned in to answer a bill or petition in any of the equity courts of this State, shall die before final decree, leaving heirs at law or representatives, Who should be made parties to said cause; or any one has been omitted, as a plaintiff or defendant in any equity cause, it shall not be necessary to file an amended bill or petition in said cause, but on a short petition setting forth their interest in said cause, they shall be made a party plaintiff, or if a defendant, the court shall cause a summons to be issued re- quiring said party or parties to answer said bill or petition as originally filed; and said short petition shall be taken and con- sidered as a part of said bill. 1 a Hall v. Hall, I Bl.' 130, 132-133; Ridgely v. Bond, 18 Md. 433, 449. 2 Hall v. Hall, 1 Bl. 130, 132. 3 Allen v. Burke, 1 Bl. 544, 545 ; Matthews v. Merrick, 4 Md. Ch. 364. *Hall v. Hall, 1 Bl. 130, 132; hence where the plaintiff married, the only means of reviving the suit was by a bill of revivor. In this case it is stated that the plaintiff having died, his administratrix was admitted as complainant, and upon the marriage of the administratrix the suit abated, although she was plaintiff in her representative capacity as ad- ministratrix, and not individually. 6 Code, art. 16, sec. 13. 6 See Rowland v. Prather, 53 Md. 232, 241. [§207.] !Act of 1892, ch. 654, inserting the act into article 16 of the code as sec. 186 A; see also ante, sec. 82. CHAPTER XII. THE TAKING OF TESTIMONY. § 208. The equity rules. ! 209. The examiners. __ 210. Preliminary proceedings. 211. Enforcing attendance and testimony; objection by witness. 212. Particularity as to time and place; waiver. 213. Method of taking testimony. 214. To be taken without delay. 215. Return of the testimony. 216. Exceptions to testimony; when filed; leading questions. 217. Recalling and re-examining witness. 218. Taking additional testimony. 219. Exceptions to the return. 220. Testimony when some defendants are in default. 221. Testimony for interlocutory applications. 222. Foreign commissions. 223. Oral testimony in open court. 224. Miscellaneous. §208. The equity rules. — The practice in regard to the taking of testimony 1 is now largely regulated by the provis- ions of the equity rules. 2 These rules are in part adapted from the federal equity rules, 3 in part from the rules of the court of chancery, 4 and in part are based upon pre- existing practice and statutes. 5 1 See in general Beach, Eq. Pr. sees. 516-552; Foster, Fed. Pr. sees. 283-200; Daniell, Ch. Pr. chapter 22; Alex. Ch. Pr. 68-77. 2 Equity rules 36-46; code, art. 16, sees. 216-226. Code, art. 16, sec. 230, provides that "with a view to the speedy execution and return of commissions to take testimony, the court or any judge thereof shall prescribe such rules as the nature of the case may require"; cited in Purner v. Piercy, 40 Md. 212, 219. 3 U. S. equity rules 67-71. 4 These rules are stated in Alex. Ch. Pr. 366-373. 8 For example, the provision in equity rule 38; code, art. 16, sec. 218; that examinations shall be conducted in the presence of the parties, or their solicitors, seems to be based upon the act of 1785, ch. 72, sec. 15; and see code of i860, art. 16, sec. 147. 261 §209 Taking testimony. 262 §209. The examiners. — An examiner 1 is an officer of the court, appointed by the circuit courts in the counties, and by the Supreme bench in Baltimore city, for the purpose of tak- ing testimony within 2 the jurisdiction of the court appointing him. For any special reason a special examiner may be ap- pointed. The examiners have authority to issue subpoenas for witnesses, administer, oaths, notify parties of the time of their sittings and to preserve order and decorum during their ses- sions. Their rate of compensation is fixed. 8 The examiner shall not have power to decide upon the competency, material- 1 Examiners were officers of the court of chancery of England; Town- shend v. Duncan, 2 Bl. 45, 57, 60; see Daniell, Ch. Pr. 926. In Townshend v. Duncan, 2 Bl. 45, 81-86, it is said that the prac- tice of taking testimony before a justice of the peace prevailed from an early period of the provincial government, and the court approved the practice; similarly in Winder v. Diffenderffer, 2 Bl. 166, 196; Hodges v. Mullikin, 1 Bl. 503, 506-507. Equity rule 46; code, art. 16, sec. 226; provides that upon any petition, motion or other interlocutory application, for the hearing and determination of which evidence may be required, the court or judge thereof may order testimony to be taken before an examiner, or before a justice of the peace. 2 Compare Brandt v. Mickle, 28 Md. 436, 446-447, a case at law; code, art. 35, sec. 29. 3 Equity rule 36; code, art. 16, sec. 216; it is further provided that "such examiners shall 'be entitled to receive four dollars per day, for each and every day actually employed; to be paid by the party at whose instance the service may have been rendered. And it shall be the duty of such examiners, in making their returns to the court, in each case, to certify the time that they have been actually employed, and at whose instance, and the amount taxable to each party for services ren- dered." Code, art. 16, sec- 230, provides that each commissioner shall be allowed four dollars per day, and the clerk two dollars and fifty cents per day. Payment of the allowances to examiners, commissioners and their clerks may be compelled by order of the court, and process of contempt for disobedience to such order may be issued as in other cases; code, art. 16, sec. 154; and see code, art. 16, sees. 169-170. Com- pare Hall v. McPherson, 3 Bl. 529, 533. In Baltimore city the "day" of an examiner consists in practice of two hours. In Baltimore county, three hours; see rule 2 of the Baltimore county equity rules in the appendix. 263 Taking testimony. §209-210 ity or relevancy of any question proposed or evidence elicited, nor as to the competency or privilege of any witness offered.* §210. Preliminary proceedings. — Whenever any cause it at issue, 1 involving matter of fact, or whenever any evidence is required to be taken, 2 to be used in any proceeding in equity, it shall be competent to the party desiring to take evidence, by leave of the court, or judge thereof, 3 to notify one of the regular examiners, or any special examiner that may be appointed, of such desire, and to furnish him with the titling ^Equity rule 40; code, art. 16, sec. 220. In Winder v. Diffenderffer, 2 Bl. 166, 190, it is said that there is nothing in the Maryland practice which clothed the commissioners with anything .more than mere ministerial powers for the purpose of taking the examination. *But the examination of witnesses de bene esse, or for the perpetua- tion of their testimony, may be taken before a cause is at issue; see post, these titles; compare Lingan v. Henderson, 1 Bl. 236, 238; Alex. Ch. Pr. 76. In Md. Coal & Iron Co- v. Wingert, 8 G. 170, 179, it is said that the issuing, by consent of parties, a commission to take testimony gen- erally, without limitation as to its nature and purposes, is regarded as an admission that the issues are made up, and that the general replication to the defendant's answer has been entered by the plaintiff. To reject, at the instance of the defendant, the testimony taken under such cir- cumstances, would work surprise upon the plaintiff, and to permit such an objection, when not taken in the court below, to be raised in the appellate court, where its omission cannot be remedied, would be per- mitting a defendant to practice a fraud upon the plaintiff, which might be fatal to his interests; followed in Hall v. Clagett, 43 Md. 223, 237. When an issue, as to any matter of fact, has been made up in chancery, a commission may be obtained to collect proofs in relation to it; Winder v. Diffenderffer, 2 Bl. 166, 184. 2 Under the former practice, commissions to take testimony were often issued by consent of the parties. In Kipp v. Hanna, 2 Bl. 26, 29-30, where there were several defendants, the solicitor for some of them assented to the issuing of a commission, and testimony was taken. This testimony was of no avail against the defendants not assenting. In Colvin v. Warford, 18 Md. 273, 275, the issuing by consent of a com- mission was held a waiver of the right to object to the court's refusal to allow a commission. See Alex. Ch. Pr. 69. 3 In Baltimore city this leave is prayed for by a petition, and granted by an order, in the following form: "The petition of in this case, respectfully shows that desire ... to take testimony in this case, and respectfully §210 Taking testimony. 264 of the cause* and the names of witnesses to be summoned to testify. The examiner shall fix some reasonable day for the examination of witnesses and the taking of evidence, of which he shall give due notice 5 - to the parties concerned, or those en- titled to receive such notice, as if he were proceeding Under a commission to take testimony under former practice." He shall issue subpoenas for witnesses for either party, except where he is required to proceed ex parte, and shall cause to pray . . that leave be granted to do so before one of the stand- ing examiners of this court." "Ordered this ........ day of , 189. ., that leave be granted to the parties to the cause, to take testimony, as prayed, be- fore any one of the standing examiners of this court." The order for the examination of a party is granted almost as a matter of course. The omission to procure the previous order of the court is at most a mere irregularity, and when it is apparent that no substantial injustice has been inflicted upon the opposite party, by denying him the benefit of a cross-examination, and that delay and consequent injury will be visited upon the party relying upon the proof by allowing the objection to prevail, it ought not to be per- mitted to do so; Tolson v. Tolson, 4 Md. Ch. 119, 123, quoting in part Lingan v. Henderson, 1 Bl. 236, 268; see the facts in the first-mentioned case, pages 122-123. In Winder v. Diffenderffer, 2 Bl. 166, 191, it is said that an order for the examination of a co-defendant is granted as of course. In Dodge v. Stanhope, 55 Md. 113, 122, after an auditor's ac- count had been filed, testimony taken without leave of the court was held inadmissible. Compare Stockett v. Jones, 10 G. & J. 276, 278-279; Gechter v. Gechter, 51 Md. 187, 189. ^Compare Scott v. Scott, 17 Md. 78, 83, in which the commission to take testimony issued with an erroneous titling; and see Ellicott v. Peterson, 4 Md. 476, 485, a case at law. 5 (In Baltimore city the established practice is that one day's notice should be given. Compare rule 34 of the equity courts of Baltimore city. — Brewer.) In Walsh v. Boyle, 30 Md. 262, 266-267, where the parties were allowed to take testimony upon giving one day's notice, it was held that notice given on the twenty-eighth day of the month was sufficient for taking testimony on the twenty-ninth. In Tolson v. Tolson, 4 Md. Ch. 119, 122-123, an exception, that the defendants had no notice of the examination of a particular wit- ness, was overruled, where it appeared that they had notice of the time and place of the execution of the commission. 6 As to the proceedings under a commission to take "testimony under the former practice, see Alex. Ch. Pr. 68-70. Compare also Mac- cubbin v. Matthews, 2 Bl. 250, 253. 265 Taking testimony. §210-211 come before him all witnesses subpoenaed, at the time ap- pointed, to be examined. 7 §211. Enforcing attendance and testimony; objection "by witness.— The examiners have authority to issue subpoenas forwitnesses. 1 Any person refusing to obey subpoenas issued by the examiners, or who shall be guilty of violating the order and proper decorum of the sessions of the examiners while in dis- charge of their duties, shall be reported by the examiners, to- gether with the facts of the case, to the court; and, upon hear- ing, the court, if satisfied of the facts as reported, and that the party was guilty of the matter charged, shall punish the party, so offending. 2 The examiner shall cause to come before him all witnesses subpoenaed, at the time appointed, to be exam- ined; and their attendance and duty to testify may be enforced by attachment, to be issued and returned, as provided by the code. 3 All questions of privilege raised, or demurrer inter- 7 Equity rule 37; code, art. 16, sec. 217. 1 Equity rule 36; code, art. 16, sec. 216; and equity rule 37; code, art. 16, sec. 217. A witness attending an examiner under a summons by him issued, or at the request of either of the parties, shall be allowed sev- enty-five cents per day for every day's attendance, and itinerant charges, to be taxed as part of the costs; code; art. 16. sec. 231. In Deale v. Estep, 3 Bl. 433, 439, it is said that commissioners acting under a commission from the court, directing them to take evidence, have authority to issue a summons to call a witness before them, and if the witness shall fail or refuse to attend and to testify it is equally clear that he may be forced to do so, or be punished by the court. And on page 434 it is said that the right of the court to resort to some effectual means of collecting testimony must be found among the powers necessarily belonging to it as a court. See also Maccu'bbin v. Matthews, 2 Bl. 250, 252-253. The subpoena should be executed by the sheriff; Deale v. Estep, 3 Bl. 433, 439; see proceedings and form of subpoena in Bryson v. Petty, 1 Bl. 182, note case. The attendance and testimony of witnesses was also enforceable in cases where testimony was taken before a justice of the peace acting as a commissioner; Winder v. Diffenderffer, 2 Bl. 166, 196; Townshend v- Duncan, 2 Bl. 45, 83. 2 Equity rule 36; code, art. 16, sec 216. 3 Equity rule 37; code, art. 16, sec. 217. The provisions referred to are in code, art. 16, sec. 232, which provides for the attachment of any witness summoned, who refuses or neglects to attend, or attend- ing refuses to answer the interrogatories. In Maccubbin v. Matthews, 2 Bl. 250, 252-253, it is said that §211-212 Taking testimony. 266 posed, by any witness to questions propounded, shall be at onoe reported by the examiner to the court or judge thereof for de- cision, and the court or judge shall hear and determine the same without delay; and in such cases the court may award costs as justice may appear to require.* §212. Particularity as to time and place ; waiver. — Much particularity in reference to the notice as to time and place of the execution of a commission is necessary. It ought to appear from the depositions themselves that they were taken agreeably to notice, both as to place and time, or they cannot be received as evidence; and unless the fact appears on the face of the depositions, proof cannot be admitted to show that the statute, (the act of 1824, ch. 133), "can only be regarded as a mere affirmance of the pre-existing powers of the court." 4 Equity rule 40; code, art. 16, sec. 220. In Winder v. Diffenderffer, 2 Bl. 166, 194, it is said that when a wit- ness himself makes an objection of this kind, it is necessary to suspend the examination until it is determined upon, because there is no other possible mode of sustaining his protection should he be entitled to it. The only way in which the witness can protect himself is to state his objections before the commissioners, who return the commission with what is called the witness' demurrer; and the question is brought before the court by setting it down for argument. It is not, strictly * speaking, a demurrer; but by an abuse of the term, the witness' objection to answer is called a demurrer in. the popular sense. If the demurrer of the witness be overruled, he may be made to pay the costs. On page 194-195, it is said that a witness cannot demur because the questions asked him are not pertinent to the matter in issue. See also Chew v. Farmers' Bank, 2 Md. Ch. 231, 243, in which the practice stated in Winder v. Diffenderfer, 2 Bl. 166, 194, was ap- proved; and in which it 'is said that when an attorney makes ob- jection to a. question as involving confidential communication be- tween him and his client, he must be understood as making it in behalf of the client and not on his own behalf. See the proceedings here, pages 238-240. Compare Chesapeake Club v. State, 63 Md. 446, 456-457, a case at law; and see Daniell, Ch. Pr. 942-945; Alex. Ch. Pr. 72-73. As to the examination of a witness on his voir dire regarding his religious belief, see Du Puy v. Terminal Co., 82 Md. 408, 444-445, per Bryan, J.; Williams v. Savage Mfg. Co., 1 Md. Ch. 306, 316. As to the examination of children in regard to their capacity to testify see Freeny v. Freeny, 80 Md. 406, 408-409. 267 Taking testimony. §212 they were in fact taken according to notice. 1 It is a fatal objection, unless waived by the opposite party, that depositions are taken at any other than the time and place named in the commission. Thus where depositions are to be taken at a particular house, they will be rejected unless taken at the place named; 2 and similarly if taken at any other time than that au- thorized by the commission. 3 The formalities required in taking testimony under a commission, as to time, place, and in other respects, are required chiefly for the protection of the adverse party, and to secure to him the right to participate in the examination of the witnesses, if he chooses to do so. But if he thinks proper to waive his right to a strict compliance with the directions of the commission, and agrees to its execution in an informal way, he cannot afterwards object to the proceed- ing upon the ground of its irregularity in this respect. The presence of the counsel of the adverse party and his cross- examination of th« witnesses, is equivalent to an agreement to waive any irregularity as to the time and place when and where the deposition is executed.* Collins v. Elliott, I H. & J. i, 2, a case at law; Young v. Mackall, 3 Md. Ch. 398, 403-404; Young v. Mackall, 4 Md. 362, 368-369; and where the commission is silent as to the place and time where and when it is to be executed in these particulars the notice is to govern, and it is just as requisite that the return should show a compliance with the terms of the notice, as to place and day, as though they had been designated in the commission; the reason is the same in both cases. 2 Young v. Mackall, 4 Md. 362, 368-369; Young v. Mackall, 3 Md. Ch. 398, 404; Williams v. Banks, 5 Md. 198, 201, a case at law. In Young v- Mackall, 4 Md. 362, 370, it was held that the onus is not upon an exceptant to show irregularity in the commission. It is incumbent on a party to establish his right to the use of a commis- sion and to show that its execution has been in compliance with its terms. 'Young v. Mackall, 4 Md. 362, 368-369; Young v. Mackall, 3 Md. Ch. 398, 404; Calvert v. Coxe, 1 G. 95, 104-105, 116. It seems, how- ever, from these cases that it is not necessary that it should appear on the face of the commission that it was taken at the hour men- tioned in the notice. *Williams v. Banks, 5 Md. 198, 201-202, a case at law; see also the law cases of Waters v. Waters, 35 Md. 531, 546; Cherry v. Baker, 17 Md. 75, 77; Matthews v. Dare, 20 Md. 248, 266. §213 Taking testimony. 268 §213. Method of taking testimony.-AU examinations 1 of witnesses before the examiners shall be conducted in the presence of the parties, or their solicitors 2 ; and the mode of ex- amination shall be either by written interrogatories filed with the examiner, to be by him- propounded to the witnesses, and the answers thereto written down by him, as has heretofore been the practice of commissioners in taking testimony; 3 or the witnesses may be examined by the parties, or their solic- itors, viva voce, 4 ' and in such case, the answers of the witnesses shall be reduced to writing by the examiner, 5 and the questions iThe text of this section is taken- from equity rules 38 and 40; code, art. 16, sees. 218 and 220; compare Alex. Ch. Pr. 69-74. 2 See the former English procedure stated in Winder v. Diffenderffer, 2 Bl. 166, 185-188. The testimony was taken in secret in the presence only of the commissioners and their clerk; the depositions were re- turned to court, whereupon an order was obtained for their publication; that is, that they be opened and read by the parties concerned. On page 188 and in note k the Maryland proceedings are stated; secrecy was abolished and each party had a right to be present and to have his interrogatories publicly propounded to the witnesses. Compare Strike's case, 1 Bl. 57, 96; Hodges v. Mullikin, 1 Bl. 503, 511; Ridge- way v. Toram, 2 Md. Ch. 303, 314. In Wagner v. Shank, 59 Md. 313, 328-329, the court, under the circumstances, refused to allow a defendant in default to examine the testimony before filing his answer. Other cases, in which minor points of practice in regard to commissions to take testimony, and exceptions, were considered, are Colvin v. Warford, 18 Md. 273, 275; Brooke v. Berry, 2 G. 83, 97; Higgins v. Horwitz, 9 G. 341, 343-344- 3 This practice is stated in Winder v. Diffenderffer, 2 Bl. 166, 185, 190; "it is wholly unnecessary in any case to file a long formal set of interrogatories to be sent with the commission unless it should be sent to a distance or into a foreign country, where the party or his solicitor cannot attend." 4 A11 viva voce examinations shall, as near as may be, be conducted in the manner and in the order of the examination of witnesses in the trials of fact in the courts of common law; equity rule 38; code, art. 16, sec. 218. In Winder v. Diffenderffer, 2 Bl. 166, 189, it is said that the mode of examining a witness, "except that it is all in writing, is similar in every respect to an examination in a court of common law. He on whose part the witness is called examines him first, and then he is cross-examined by the opposite party, and so on until the whole testimony is taken;" see also pages 190-191. B In Canton v. McGraw, 67 Md. 583, 589, it is said that there is 269 Taking testimony. §213 also, if necessary to the understanding of the answers of the witness, or if it be required by either party." But the questions and answers may be typewritten. 7 In all cases the testimony shall be written down in the language of, and as delivered by, the witness, 8 and when completed shall be read over to the wit- ness and be signed by him ; 9 and the examiner may, upon all examinations, state any special matters to the court that he may deem proper to enable the court the better to understand the evidence. The testimony produced by both parties shall be taken before the same examiner, unless for special reasons it be otherwise directed by the court or judge thereof. 10 Any question that may be objected to by either of the parties shall be noted by the examiner upon the deposition. 11 nothing in the equity rules to prevent the examiner before whom the testimony is taken from having a clerk to write it down. By the code, art- 16, sec. 230, the right to have a clerk to write down the testimony in equity cases is recognized and his per diem fixed. The examiner must, however, be present when the testimony is taken. 6 In Winder v. Diffenderffer, 2 Bl. 166, 190-191, it is said that the proper method is to propound to each witness such interrogatories as he is likely to be capable of giving, and then to place each answer immediately under the interrogatory to which it is n. response. 7 This clause is an amendment to equity rule 38; code, art. 16, sec. 218; adopted by the court of appeals, June 19, 1896. 8 Equity rule 40; code, art. 16, sec. 220. Compare Winder v. Diffenderffer, 2 Bl. 166, 193; and see the answers of the witness, written in the third person, in Lingan v. Henderson, 1 Bl. 236, 241-245. 9 The signature should be "in the presence of the parties or their solicitors, or such of them as may attend; but if the witness, for any cause, may not be able to sign the same, or shall for any reason refuse so to do, the examiner shall sign the deposition, stating the reason why the witness has not signed the sama;" equity rule 40; code, art. 16, sec. 220. In Scott v. McCann, 76 Md. 47, 49, the witness died without having signed the deposition; the examiner signed it, thus complying with the requirements of the rule. 10 See the proceedings held not improper in Canton v. McGraw, 67 Md. 583, 589-S90. "In Winder v. Diffenderffer, 2 Bl. 166, 192, it is said that "'no ob- jection coming from a party to the suit to the competency of a wit- ness, or to the relevancy of any interrogatory, or of any testimony, shall be allowed to suspend or impede the taking of the proofs. Such objections may, however, be noted by the commissioners in §213-214 Taking testimony. 270 In all examinations, at the conclusion the examiner shall put what is known as the general question to the witness. 12 §214. To be taken without delay.— Testimony shall be taken without any unnecessary delay, and it shall be the duty of the examiner to avoid such delay as far as possible. 1 But the defendant shall not be compelled to proceed with the taking of his testimony until the plaintiff has finished or de- clared he has none to take; nor shall the plaintiff be compelled to proceed with the rebutting testimony, until the defendant has completed the testimony on his part. 2 After the lapse of a reasonable time for the taking of testimony, either party may obtain a rule on the adverse party to close the taking of his testimony within such reasonable time after notice of such rule as may be - deemed proper; and any testimony taken after the lapse of that time shall not be read in evidence at the hearing of the cause. But it shall be in the discretion of the court to en- large the time on application of the party against whom such rule may have been obtained, upon sufficient cause shown. 3 their proceedings, as has been the practice hertofore; and whether so noted or not, they may be made, heard and determined upon at the final hearing;" and see also page 193. Compare Ridgeway v. Toram, 2 Md. Ch. 303, 314; Dodge v. Stanhope, 55 Md. 113, 121; Chambers v. Chalmers, 4 G. & J. 420, 443. See also post, sec. 216, note. 12 Equity rule 39; code, art. 16, sec. 219; the rule prescribes the form as follows : "Do you know, or ■ can you state, any other matter or thing which may be of benefit or advantage to the parties to this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question betwen the parties? If yea, state the same fully and at large in your answer." And the examiner shall write down the answer to said interrogatory, as part of the deposition of the witness. This rule is taken from U. S. equity rule 71. . 1 Equity rule 42; code, art. 16, sec. 222. By a rule of the court of chancery it was provided that no com- mission should continue open longer than six months without the express consent of both parties, or the special order of the court; Alex. Ch. Pr. 74. By U. S. equity rule 69, three months and no more are allowed for the taking of testimony after the cause is at issue. Compare Whe- lan v. Cook, 29 Md. 1, 9. 2 Equity rule 38; code, art. 16, sec. 218. 3 Equity rule 42; code, art. 16, sec. 222. Compare Ingle v. Jones, 9 Wall. 486, 498-49°. In McKim v. Odom, 3 Bl. 407, 412, the court said that on the 271 Taking testimony. §215-216 §215. Return of the testimony. — So soon as the exam- ination of witnesses before the examiner shall be concluded, the original depositions, with all vouchers, documents or other papers filed with the examiner as evidence, shall be put together in proper order and form, so as to be convenient for reference and use, and be authenticated by certificate and signature of the examiner, and by him enclosed, with the titling of the cause endorsed thereon, 1 and filed with the clerk of court without delay. 2 The evidence taken and returned 3 shall be opened by the clerk, and shall remain in court ten days, 4 subject to excep- tion, 6 before the cause shall be taken up for hearing, unless by agreement of the parties 6 such time be waived; 7 but after the expiration of that time the cause shall stand for hearing unless some sufficient cause be shown to the contrary. 8 This rule not to apply to interlocutory applications. 9 §216. Exceptions to testimony; when filed ; lead- ing questions. — Under the early practice in Maryland, ob- jections 1 of every kind to the testimony were taken and consid- first application for an extension of time, it did not consider it proper to exact such strict proof of the necessity of having it en- larged as it would have done on a second application of the same nature, or as would be required to obtain the continuance of a cause standing regularly for hearing. 1 Equity rule 41; code, art- 16, sec. 221. Compare Waters v. Riggin, 19 Md. 536, 549-550. 2 The examiner need not return the depositions to the court until he has been paid his fees; nor need he begin to take the depositions, un- less satisfied that he will be paid. Payment may be compelled; ante, sec. 209, note 3. 3 Equity rule 43; code, art. 16, sec. 223. *In the court of chancery the time was one entire term; see Rich- ardson v. Stillinger, 12 G. & J.477, 479; Hatton v. Weems, 12 G. & J. 83, 104; Oliver v. Palmer, 11 G. & J. 426, 441; post, sec. 252. Time is thus afforded for the preparation of exceptions; Freeny v. Freeny, 80 Md. 406, 409. e If any of the parties are infants, it is the practice in Baltimore city not to make an agreement of waiver; see ante, sec. 15, and note, as to the powers of a guardian ad litem or next friend in such matters. 7 The waiver is made by filing an agreement to that effect, signed by the solicitor of the parties. 8 As, for example, the necessity of taking further testimony. •See post, sec. 221. [S2I6.1 This section should be read in connection with sections 329- §216 Taking testimony. 272 ered at the hearing of the cause, without any formal exception.* But since the act of 1832, 3 which provided that no point re- lating to the competency of witnesses or the admissibility of evidence should be raised, noticed or determined in the court of appeals unless raised by exceptions filed in the court below, it is the practice to file exceptions in all cases which may by any possibility be appealed. The act does not require exceptions to the want or insufficiency of evidence, but restrains parties on appeal from making objections to the competency of witness- es, or the admissibility of evidence, unless the point was raised by exceptions in the court below. 4 The exceptions to testi- mony should be filed before the hearing begins, 5 and must be filed before decree; after decree is too late, as the design of the statute is that the. chan- cellor whilst decreeing might have them in view, and that the opposite party might resort to the appropriate means of obviating their effects whilst the cause continued before a tri- bunal where such could be had. 6 The practice has always pre- vailed of allowing them to be taken at the hearing; and even when, by the rules of some courts, a whole term was allowed and the testimony permitted to lie for that purpose, the actual filing of the exceptions has always been permitted ut the hear- 339, post; most of the cases upon exceptions to evidence are in reference to their effect on appeal. 2 Strike's case, 1 Bl. 57, 96; Ridgeway v. Toram, 2 Md. Ch. 303, 314; Cross v. Cohen, 3 G. 257, 272; Winder v. Diffenderffer, 2 Bl. 166, 192. 3 Act 1832, ch. 302, sec. 5; code of i860, art. 5, sec. 26; code of 1888, art- 5, sec. 34. *Berrett v. Oliver, 7 G. & J. 191, 202. In Freeny v. Freeny, 80 Md. 406, 409, it is said that if it is de- sired to except to testimony taken before an examiner to be used at the hearing, it is sufficient to have the examiner note the objection, without setting forth the ground on which said objection, or exception, is based, unless when a question is objected to as leading. Every exception to testimony must be reduced to writing and filed in the cause, at least before the hearing begins. It will not do to except generally to "all the testimony objected to and noted by the examiner." Every exception should clearly indicate the testimony excepted to, the ground on which the exception is based, and the name or names of the witnesses whose testimony is excepted to. B Freeny v. Freeny, 80 Md. 406, 409; Scanlon v. Walshe, 81 Md. "8, 133- •Fitzhugh v. McPherson, 9 G. & J. 51, 70. 273 Taking testimony. §216-217 ing. T Evidence is now required to remain in court ten days, subject to exception, before the cause shall be taken up for hearing; ample time is 'thus afforded for the preparation of ex- ceptions. 8 An objection to a question as leading should be made at the time it is propounded and before it is answered, and the ground of objection should be stated and noted before the examiner, in order to give an opportunity for changing the form of the question ; 9 if not made at that time, the objection cannot be considered. 10 §217. Recalling and re-examining witness. — A witness who has been examined in a cause, as to its merits, should not again be recalled and examined without permission of the court, granted upon an application for the purpose. 1 The court will require satisfactory ground before granting such leave;- but will always do so when the substantial justice of the case requires it. 3 The rule is important for the orderly con- duct of the suit, and for the purpose of justice; and testimony taken without such leave will be rejected. 4 The granting of leave rests in the discretion of the lower court, and its action 7 Brown v. Hardcastle, 63 Md. 484, 495. s Freeny v. Freeny, 80 Md- 406, 409. 9 Kerby v. Kerby, 57 Md. 345, 361; Washington Ins. Co. v. Davi- son, 30 Md. 91, 105, a case at law; Smith v. Cooke, 31 Md. 174, 179, a case at law; Jones v. Jones, 36 Md. 447, 457, (orphans' court case) ; B. & O. Co. v. Shipley, 39 Md. 251, 255; compare Birely v. Staley, S G. & J. 432, 456. 10 Brown v. Hardcastle, 63 Md. 484, 49s ; Freeny v. Freeny, 80 Md. 406, 409. 'Trustees v. Heise, 44 Md. 453, 466-468; Young v. Omohundro, 69 Md. 424, 428; in the latter case it was held that objection could not be made to the testimony on the ground that it was taken without leave, because the parties had agreed that the case should be referred to an auditor to state an account upon the evidence then in the case. Compare Beach, Eq. Pr. sees. 545-546; Daniell, Ch. Pr. 952-955- 2 Girault v. Adams, 61 Md. 1, 10. s Trustees v. Heise, 44 Md. 453, 466. 4 Young v. Omohundro, 69 Md. 424, 428, in which it was- held that the right to object to the testimony was waived; Swartz v. Chicker- ing, 58 Md. 290, 297; Girault v. Adams, 61 Md. I, 9-10; in this latter case it was said that "a witness and a party to a cause, who had b'een examined and cross-examined after his opponent had testified, ought not to be recalled after he has had three months to reflect upon his adversary's testimony, for the purpose of contradicting that testimony, unless special leave of the court is first obtained." 18 §217-218 Taking testimony. 274: in this .respect is not a subject for review on appeal. 5 But al- though a witness may be recalled and re-examined after leave granted by the court upon satisfactory reasons shown, the order generally embodies a special direction that the witness should not be re-examined upon any points with respect to which he has already given testimony in the particular cause, unless it be satisfactorily shown to the court that there has been mistake, or inadvertent omission, in the previous exam- ination. To afford witnesses facility for repeatedly amending their testimony, as the emergencies of the case may seem to re- quire, would be extremely dangerous to truth and justice, and especially so when the parties themselves are the witnesses to be examined. Leave to take additional testimony will not authorize the re-examination of witnesses, who 'have already testified, upon the same subject-matter; a special order grant- ing the leave is necessary, in the absence of which the testi- mony will be rejected. 6 In some cases a witness may be al- lowed to appear in open court and correct his testimony by answering over a particular interrogatory propounded by the direction of the court; and from the action of the court below no appeal will lie. 7 §218. Taking additional testimony. — After the re- turn of the commission, and at any stage of the proceed- ings before final decree, the court will ' allow defects in proof to be supplied, provided the party applying has not precluded himself from such indulgence by negligence or delay. This power of the court is not gener- ally exercised except in cases where, from accident or inadvert- 5 See Somerville v. Marbury, 7 G. & J. 276, 281; Davis v. Hall, 52 Md. 673, 684; Swartz v. Chickering, 58 Md. 290, 298. 6 Trustees v. Heise, 44 Md. 453, 466-469. 7 Barnum v. Barnum, 42 Md. 251, 324; it is said that "this is a practice not very often resorted to, and is one of great delicacy, because of its being liable to abuse. If, however, the court is entirely satisfied, upon a preliminary examination of the witness, that there is a real mis- take, and that there is no collusion, it will permit, what was done in this case, the witness to correct his testimony." Compare Frisby v. Parkhurst, 29 Md. 58; 69, in which a witness whose testimony was not clear, was re-examined, and his attention di- rected to certain points upon which his further evidence was required. 275 Taking testimony. §218 ence, omissions or defects of proof have occurred which the party could have readily supplied. 1 The power of the court is a discretionary one, from the exercise of which no appeal will lie. 2 And so if new evidence has been discovered at any time before the 'hearing of the cause, the party may obtain an order of court to take the evidence, provided a sufficient foundation be shown. 3 It is the duty of the court to allow further proof to come in at any time during the progress of a cause, when in its judgment the taking of such proof will subserve the ends of justice. 4 But if the party applying for leave to take new testi- mony be negligent in the conduct of the case, the petition may not be granted. If the new proof s6ught to be introduced comes to light at any time so long before the decree as to enable the party to apply for a commission, and he neglects to make such an application, he will not be allowed to have the benefit asked for. And so where a commission had been out for sev- eral years, and was returned without proof, both parties having failed to offer any, and the cause was set down for final hearing, the court would not remand the commission for the purpose 1 Compare the rule of the court of chancery upon this point; Alex. Ch. Pr. 75- 2 Trustees v. Heise, 44 Md. 453, 465. In Hodges v. Mullikin, 1 Bl. 503, 511, it is said that a party may at any time, even after the case has been set down for hearing, if the application be made on reasonable grounds, supported by an affi- davit, obtain a commission to take the testimony wanted. Compare Beach, Eq. Pr. sees. 547-549- 3 Ridgeway v. Toram, 2 Md. Ch. 303, 314; the bill may be amended under order of the court to meet the new facts, if necessary; see Hughes v. Jones, 3 Md. Ch. 289, 290. In Salmon v. Clagett, 3 Bl. 125, 167, it is said that after a case has been set for hearing or stands for hearing, to obtain leave to take new testimony the party must by a petition on oath state the name of the witness, without whose testimony he cannot safely proceed to hearing, the points to which he can materially depose, and the reason why he has not been previously examined, if it should not sufficiently appear from the nature and circumstances of the case; see the petition here, page 167. 4 Worthington v. Hiss, 70 Md. 172, 188; and this notwithstanding any restrictions as to time previously imposed. 5 Hodges v. Mullikin, 1 Bl. 503, 5n; compare Winder v. Diffen- derflfer, 2 Bl. 166, 192; Canton v. McGraw, 67 Md. 583, 587. §218-219 Taking testimony. 276 of giving a further opportunity to take proof. 6 And Where a commission had been returned at the instance of the plaintiff, after he had complained of delay on the part of the defendant in taking testimony, and had obtained several orders for the return of the commission, the court refused to allow the com- mission to be remanded in order to enable him, eight months after the return, to take further testimony ; there is no rule of equity practice that would, under such circumstances, justify the granting of his application. 7 §219. Exceptions to the return. — If the execution of a commission be irregular in the omission -to give notice, or for other cause, the proper course is not to wait until the final hear- ing, and then seek to have the evidence excluded, but within a reasonable time after the return to move for the suppression of the evidence ; and if upon such motion the court be satisfied of the existence of the irregularity, it may, within its discre- tion, order the evidence to be retaken on the same interroga- tories, with liberty to the adverse party to- cross-examine the witnesses. By adopting such course the party may obtain the benefit of the evidence, notwithstanding the irregularity in tak- ing it in the first instance, whereas if the question be decided on an exception at the hearing he may be deprived of it alto- gether. 1 "Somerville v. Marbury, 7 G. & J. 275, 281. In Barnum v. Barnum, 42 Md. 251, 323, it is said: "Parties are bound to produce their evidence in due time, and having neglected it, the court will not open the accounts at the instance of the party in default. But here, as the cause has to be remanded, we can perceive no good reason why the defendants may not be allowed to produce their evidence." 'Davis v. Hall, 52 Md. 673, 684-685; and see the instance in Tolson v. Tolson, 4 Md. Ch. 119, 121-122. In Baltimore city, rule 13 of the equity courts provides that "on any application for a postponement or continuance, the party apply- ing shall satisfy the court, by affidavit or otherwise, of the reason- ableness of his application; and if the object be to procure additional testimony, the purport of that testimony, and the names and residences of the witnesses, shall be stated in the application, with a sufficient ex- planation of the reasons which prevented the testimony from being taken in time; the whole to be verified by the affidavit of the party or his counsel." iBarnum v. Barnum, 42 Md. 251, 294-295; in this case no formal -ex- 277 Taking testimony. §220 §220. Testimony when some defendants are in de- fault. — In order to avoid the necessity of taking separate testi- mony ex parte 1 against defendants in default, when some of the defendants have appeared and the case is proceeding against them, 2 it is provided by statute that where any of the defend- ants have appeared, and an order to take testimony before an examiner has issued, and there are other defendants who are in default for not appearing or answering, and against whom ception was taken to the evidence, on the ground of want of notice of the execution of the commission, for nearly five years after its re- turn, and then an exception was filed going to its entire exclusion at the hearing; the court overruled the exception and treated the evidence as properly in the cause; the court said that in the mean- time, "all the witnesses may have died, or gone to parts unknown, and to sustain an exception under such circumstances might lead to the greatest hardship and injustice." Compare Sewell v. Gardner, 48 Md. 178, 182-183, a case at law. In Howard v. Stillwell, 139 U. S. 199, 205, a case at law, the objection was as to the form of the commission and the manner of taking the deposition. It was said that it was the settled rule of the court that "the failure to note objections to depositions, of the kind in question, when they are taken, or to > present them by a motion to suppress, or by some other notice before the trial is begun, will be held to be a waiver of the objections. Whilst the law requires due diligence in both parties, it will not permit one of them to be en- trapped by the acquiescence of the opposite party in an informality which he springs during the progress of "the trial, when it is not pos- sible to retake the deposition." See also Bibb v. Allen, 149 U. S. 481, 488-489. *As to ex parte testimony taken under an order taking the bill pro confesso, see post, sec. 276. 2 The instances in the cases are perhaps all the reverse of that men- tioned in the text; that is, the cases are to the effect that testimony taken upon an ex parte commission against defendants in default is not evidence against the other defendants. In order to obviate the ne- cessity of two commissions, one ex parte against those in default, and the other against those who appeared, it was provided that the de- faulting defendants should be bound by the testimony taken against the other defendants who appeared. In Kerr v. Martin, 4 Md. Ch. 342. 343, it was held that proof taken under an ex parte commission could not be read against de- fendants who appeared and answered, even under the circumstances of that case. In Kipp v. Hanna, 2 Bl. 26, 30, it was held that where there were several defendants, and a commission was issued with the con- §220-221 Taking testimony. 278 an order to take testimony ex parte might issue, it shall not b^ necessary to pass such order, but the plaintiff may take all his testimony before the examiner, and such testimony shall be as available against the defendants who are in default, as if the same was taken under an ex parte order. 3 After a defendant, against whom an interlocutory decree has been entered, ap- pears and answers, the filing of the answer shall in no case affect the validity of any testimony previously taken. 4 §221. Testimony for interlocutory applications- — Upon any petition, motion or other interlocutory applica- tion, for the hearing and determination of which evidence may be required, the court or judge thereof may order testimony to be taken before an examiner, or before a justice of the peace, upon such notice, and in such manner as the court or judge may think proper to direct, to be used at the hearing of such sent of some of them only, the testimony so taken could not be read against those who had not consented to the issuing of the commission. See also Stewart v. Duvall, 7 G. & J. 179, 190; Grove v. Fresh, 9 G. & J. 280, 294. In Clary v. Grimes, 12 G. & J. 31, 35, it was said that evidence taken under an ex parte commission is not admissible against a de- fendant who is brought into the cause by an amendment made in the plaintiff's bill, after the commission had issued. Similarly in Smith v- Baldwin, 4 H. & J. 331, 333, in which it was also said, that where new parties are added in such a case, the rule is that the cause should be heard on bill and answer as to such new defendants; quoted in Stewart v. Duvall, 7 G. & J. 179, 188. This latter rule, however, is not followed. 3 Code, art. 16, sec. 233; this section is section 149 of the code of i860, remodelled; the act of 1836, ch. 128, sec. 2, upon which the code provisions are based, provided that testimony taken under a commission should "have the like effect against such defaulting de- fendant as if the same was taken under a commission ex parte issued under an interlocutory decree against such defendant." By this statute the plaintiff has authority under the commission in chief to take all the testimony that may be necessary to sustain his case, as well against defaulting as against other defendants who are parties to the commission; the execution of an ex parte commis- sion was dispensed with; Higgins v. Horwitz, 9 G. 341, 343-344; Kerr v. Martin, 4 Md. Ch. 342, 343. 4 Code, art. 16, sec. 130; see Brooke v. Berry, 2 G. 83, 97. 279 Taking testimony. §221-222 matter. 1 Testimony taken upon interlocutory applications need not remain in court ten days subject to exceptions. 2 §222. Foreign coir missions.— The equity rules pro- vide that except where testimony is to be taken beyond the lim- its of the State, or beyond the limits of the county or city for which the court exercises jurisdiction, no commissions to take testimony shall issue. 1 In Baltimore city, the rules of 1 Equity rule 46; code, art. 16, sec. 226. In Barnum v. Barnum, 42 Md. 251, 294, it was held that the pendency of an appeal from a decree, reserving for future adjudica- tion the rights of a certain claimant, constitutes no sufficient ground against the admissibility of evidence in support of the rights of the claimant, taken after the entering of the appeal, under a commission already issued. 2 Equity rule 43; code, art. 16, sec. 223; see ante, sec. 215. [§222.] lEquity rule 36; code, art. 16, sec. 216. By section 176, it is provided that a court of equity may issue process of any sort including commissions to take testimony to any part of the State. Compare code, art. 35, sec. 16. The code contains certain provisions in relation to commissions to take testimony, "in causes pending in any court of equity in the State;'' these provisions are reproduced from the code of i860. As no commissions to take testimony in equity may issue, except where testimony is to be taken beyond the limits of the State or beyond the limits of the county or city for which the court exercises juris- diction, it is presumed that these provisions of the code apply only to such commissions. They are as follows: all commissions shall be issued to two persons to be named and appointed by said court, sec- 227; but by consent of parties a commision may issue to one person,sec. 228; only one commissioner shall act on the same day, unless both are called upon by the parties, and shall act as clerk unless a clerk is asked for by one of the parties, sec. 229; the pay of the commissioner and the clerk is fixed, sec. 230; and the witnesses fees are named, sec. 231; the attendance and testimony of a witness may be compelled, sec. 232. See Sewell v. Gardner, 48 Md. 178, 182; and Purner v. Piercy, 40 Md. 212, 219.- Compare code, art. 35, sec. 16. In actions at law the depositions of non-residents "shall be published in the same manner and form as heretofore has been the practice in the case of a commission from a court of equity for the examination" of non-resident witnesses; code, art. 35, sec. 15; stated in Sewell v. Gardner, 48 Md. 178, 182, and Purner v. Piercy, 40 Md. 212, 219. In regard to notice of the execution of a foreign commission, see the cases at law of B. & O. R- Co. v. State, 60 Md. 449, 458-459; §222-223 Taking testimony. 28 ° the local equity courts contain extended provisions in reference to the issue of the commission, the taking of testimony and the return of the commission. 2 A non-resident plaintiff has not an absolute right to have his testimony taken under a commis- sion ; but sihould be allowed to do so in the sound discretion of the court, upon his causing it satisfactorily to appear that by reason of permanent inability he is unable to attend the court in person. 3 §223. Oral testimony in open court. — Provision is made by statute 1 for taking oral testimony in open court as follows : "The court shall, on application of a party in interest, or may, of its own motion, order, that instead of the mode of taking testim'ony as provided in the foregoing sections, the witnesses, or any of them, shall be examined orally in open court in the presence of the judge or judges thereof, as to all or any of the facts or matters relevant in the cause or proceed- ing." Testimony may therefore be taken in this manner either upon the application of a party in interest, or upon the motion of the court. The act is mandatory in its provisions. The equity rules provided for testimony in this manner in the cir- cuit court of Baltimore city, by the agreement of the parties, with the concurrence of the court. 2 The equity rule was there- Owings v. Norwood, 2 H. & J. 96, 99, and note to Brantly's edition. The testimony is admissible upon a second trial of a cause under a procedendo; Woodruff v. Monroe, 33 Md. 146, 155-156, 157. 2 Rules of the equity courts of Baltimore city, numbers 4-9; post, ap- pendix. 3 Goodman v. Wineland, 61 Md. 449, 456. *Act of 1896, ch. 35 ; the statute further provides: "And the evidence so taken shall be written down as delivered by the witnesses by such person, and in such manner as the court may have by special order or general rule directed, and when so written down, shall, with such documentary proof as shall have been with it offered and admitted, be filed as part of the proceedings, to be used as if taken before an exam- iner; or if the court shall have so ordered, , such evidence shall be re- duced to writing by counsel in the same manner as bills of exceptions now are at common law, and after the same shall have been signed by the judge or judges before whom the testimony was taken, shall, with the documentary proof at the same time offered and admitted be filed as part of the proceedings to be used as if taken before an ex- aminer." 2 Eqnity rule 45; code, art. 16, sec. 225. 281 Taking testimony. §223-224 after amended in certain particulars and made to apply to all equity courts, 5 * and the rule as amended was repealed and re- enacted by the statute above quoted. §224. Miscellaneous. — In all cases the court shall have full power to deal with and to direct the payment of the cost of incompetent, immaterial or irrelevant evidence, or any part thereof, as justice may require, apart from the general cost of the case. 1 It seems proper to receive the testimony of a wit- ness whose cross-examination has been prevented, or cut off by death, where such cross-examination has not in any way been prevented by the fault of the party producing the witness, or of the witness himself. 2 A party cannot offer evidence to sustain any allegation which he has not made and relied upon in his bill or answer. 3 The cross-examination of a witness by a party who objects to the competency of the witness is not a waiver of the objection. 4 A party calling upon a witness for a statement by a cross-interrogatory, cannot, on discovering its adverse operation, object to its admissibility. 5 A bill sworn to by a plaintiff, as well as an answer, are evidence as admissions in a subsequent suit between the same parties in reference to the same rights. 6 3 Act of 1890, ch. 86. Equity rule 40; code, art. 16, sec. 220; compare Winder v. Diffen- derffer, 2 Bl. 166, 193. 2 Scott v. McCann, 76 Md. 47, 5°-5i- 3 Price v. Tyson, 3 Bl. 392, 398; see the cases collected in Daniell, Ch. Pr. 852-861. In Stewart v. Duvall, 7 G. & J. 179, 190, it was said that the filing of a mortgage with the register of the court of chancery was a suffi- cient notice that it would be used at the trial of the cause; but if the party against whom it is to be read in evidence should satisfy the chan- cellor that he would be taken by surprise, time, no doubt, upon appli- cation, would be given. *Winder v. Dififenderffer, 2 Bl. 166, 193; Dodge v. Stanhope, 55 Md. 113, 121. See also Chambers v. Chalmers, 4 G. & J. 420, 443. sBoteler v. Beall, 7 G. & J. 389, 397-398; here the evidence brought out was hearsay; compare Bullett v. Worthington, 3 Md. Ch. 99, 109. "Mobberly.v. Mobberly, 60 Md. 376, 379; Stump v. Henry, 6 Md. 201, 207; and see Hopkins v. Stump, 2 H. & J. 301, 303; Beach, Eq. Pr. sec- 519. CHAPTER XIII. MISCELLANEOUS INTERLOCUTORY PROCEEDINGS. §225. Production of documents; code provisions. 226. In what cases production may be had. 227. Application by petition; allegations. 228. Enforcing production. 229. Ordering the payment of money into court. 230. Interest of applicant; allegations of petition. 231. Procedure upon petition; order not appealable. 232. Issues for jury trial; purpose of; discretion of court. 233. Effect of the verdict of the jury. 234. Statutory provisions in certain cases. 235. Method of procedure. 236. Consolidation of suits; purpose of. 237. When ordered; other points. 238. Removal. 239. Rule security for costs. 240. Rule further proceedings. 241. The writ of ne exeat. 242. Sequestration. 243. Contempt of court. 244. Statutory provisions. 245. Motions. 246. Petitions. 247. When petition may be used instead of bill. 248. Orders of court. 249. Striking papers from the files. 250. Deciding question of law before taking evidence. 251. Miscellaneous. §225. Production of documents ; code provisions. — Independently of statute, a court of equity (has the power to compel the production, by either party to a cause, of books or documents 1 which relate to matters in issue between them. 2 This power is now expressly conferred by the provision of the , code 3 that "the courts of equity shall have power and authority, J Upon the general subject see Daniell, Ch. Pr. 1817-1839; Beach, Eq. Pr. sees. 522-531; Langdell, Eq. PI. sees. 204-220. 2 Winder v. Diffenderffer, 2 Bl. 166, 195; Williams v. Williams, 1 Md. Ch. 199, 201; compare Norwood v. Norwood, 2 Bl. 471, note case. 3 Code, art. 16, sec. 24. The statute is considered as merely an af- 282 283 Interlocutory proceedings. §225-226 on the application of either party* on the trial of any actions at law or suits in chancery, 5 either for discovery or relief, to re- quire and decree that the parties shall produce either the orig- inal books, writings or papers, or copies certified by a justice of the peace, 6 of all such parts of such books, writings or pa- pers in their possession or power, as contain evidence pertinent to the issue, or relative to the matters in dispute between the parties, to be used as evidence at the trial of such cause ; but before any such order shall be made, the party making such application shall satisfy the court on oath or affirmation, that the said books, writings or papers contain material and neces- sary evidence, and that such party cannot safely proceed to the trial of his case without the benefit of such testimony." §226. In what cases production may be had. — The proceeding being a mode whereby a party may obtain testi- firmance of the previous authority of the court; Winder v. Diffen- derffer, 2 Bl. 166, 195. Special provisions are made for the production of documents before an auditor; equity rule 55; code, art. 16, sec. 22. 4 The statute applies only to parties, not to strangers to the suit. Xo one who is not a party to the suit can be compelled in this way to produce private books; Ringgold v. Jones, I Bl. 90, note case; in such cases where books and papers are in the hands of third persons, and the other requisites are present, the court has competent means to compel the production of the evidence; Winder v. Diffenderffer, 2 Bl. 166, 195; Ringgold v. Jones, 1 Bl. 90, note case; that is, by sub- poena duces tecum; see ante, sec. 115, note. 5 The statute allows ah application to an equity court, on the trial of any action at law or suit in chancery. In Duvall v. Farmers' Bank, 2 Bl. 686, 687, the bank sued Du- vall at law on certain notes, and Duvall filed a petition in the court of chancery for the production of certain books in the possession of the bank; but this procedure is not now used, the provisions of code, art. 75, sec. 94, having superseded it. 6 Whether the order for the production of books should be in the alternative to produce the original books or certified copies of parts- of their contents, depends upon the character of the books. If sepa- rate books were kept of the transactions in controversy, the orig- inals should be produced; but if the accounts in question be contained in the same books, with other accounts of the party, it would be proper that the order should be in the alternative; Eschbach v. Light- ner, 31 Md. 528, 536; see Duvall v. Farmers' Bank, 2 Bl. 686, 687. in which the order required the production of either originals or copies. §226-227 Interlocutory proceedings. 284 mony to sustain his case, it must appear that the party desiring the documents to be produced has some interest in them for that special purpose; 1 for if they relate solely to the case or defence of the opposite party, or merely contain accounts or entries which the party has kept or made for his own security, he cannot be called upon to produce. 2 The existence of the books or papers *must also be shown, and that they are in the possession or under the control of the party required to pro- duce them. 3 The proceeding may by the terms of the statute be had either where the bill is one for discovery, or for relief alone. It is not 'necessary to set forth in a bill for relief any ground of discovery upon which the application may subse- quently be based, or to amend a bill for relief in order to make such application ; in any case a petition filed in the cause is sufficient.* The power is always to be exercised with caution, and the court must be satisfied of the necessity of producing the books. 5 It is, however, a power wisely conferred, and in a proper case calling for its exercise, should be exerted with- out hesitation. §227. Application by petition ; allegations.— The application for an order directing the production of books in iDuvall v. Farmers' Bank, 2 Bl. 686, 687; Bank v. Dugan, 2 Bl. 254, 256; Ringgold v. Jones, 1 Bl. 88, 90, note case. 2 Eschbach v. Lightner, 31 Md. 528, 533; in such case if admissions are sought for they must be obtained by calling the party to the stand as a witness, or probing his conscience by interrogatories in a bill of discovery directed to that especial end. On page 535 it is said that the existence of the relation of principal and agent between the plaintiff and defendant shows such an interest in the principal in the accounts kept by the agent, as to entitle the former to the production of the books, or certified copies thereof, of all accounts of the affairs of the agency, relating to the matters in dispute. Compare Story, Eq. PI. sec. 859. 3 Eschbach v. Lightner, 31 Md. 528, 532-533. "Eschbach v. Lightner, 31 Md. 528, 535. 6 Williams v. Williams, 1 Md. Ch. 199, 201; Williams v. Savage Mfg. Co., 3 Md. Ch. 418, 430; Ringgold v. Jones, 1 Bl. 90, note case; Esch- fcach v. Lightner, 31 Md. 528, 532, 535; in the latter case it is said that if the facts as to the- interest of the petitioner or the nature of the books or their possession are denied by the answer, and the answer is believed by the court, no order for production can be passed. "Eschbach v. Lightner, 31 Md. 528, 532. 285 Interlocutory proceedings. §227 a proceeding under a bill for relief should be by petition. 1 'The petition should lay a sufficient foundation, stating all the facts and making all the allegations necessary to establish the rights claimed, or the order asked for cannot be passed. 2 It may pray for a discovery whether the books asked for are in existence and in the possession of the otiher party, and for a specification of what they are and for an order that they may be produced to be used in evidence ; the law contemplates a dis- covery in this mode, and the applicant is entitled to a specific and positive answer to his petition. 3 The order of court upon the application should be conditional, with liberty to the defendant to show cause against the application. 4 The peti- tion should designate with some reasonable degree of certainty the books and papers wanted; if practicable, they should be called for by their marks, number and names. 5 Unless the books are clearly designated, the party directed to produce them may find it impossible to comply with the order of the court. 6 In all cases where books have been ordered to be pro- duced the particular books have been specified. 7 The appli- cant for the production of the books should state the facts ex- pected to be proved by them, so that they may appear to be pertinent to the issue or relative to the matters in dispute. 8 The 1 Bank v. Dugan, 2 Bl. 254, 256; not by exceptions to an answer; compare Williams v. Williams, 1 Md. Ch. 199, 201; Williams v. Sav- age Mfg. Co., 3 Md. Ch. 418, 430; Duvall v. Farmers' Bank, 2 BL 686, 687; Eschbach v. Lightner, 31 Md. 528, 535. 2 Williams v. Williams, 1 Md. Ch. 199, 202. 3 Eschbach v. Lightner, 31 Md. 528, 534-536. 4 Williams v. Williams, 1 Md. Ch. 199, 201 ; as in Williams v. Savage Mfg. Co., 3 Md. Ch. 418, 428. 5 Duvall v. Farmers' Bank, 2 Bl. 686, 687; Williams v. Savage Mfg. Co., 3 Md. Ch. 418, 430; Eschbach v. Lightner, 31 Md. 528, 533. 6 Williams v. Williams, 1 Md. Ch. 199, 201 ; in this case the petition was for the books and papers of an insolvent debtor in the hands of his trustee. The court held the designation of the books clearly deficient. The trustee could not comply with the order without pro- ducing all the books in his possession, although the production of many of them might be wholly unnecessary, the facts recorded in them being wholly irrelevant to the matters in issue between the parties, and their exhibition embarrassing and prejudicial to the trustee in the administration of the estate. 'Ringgold v. Jones, 1 BI. 88, 90, note case. 8 Eschbach v. Lightner, 31 Md. 528, 533; Williams v. Savage Mfg, Co., 3 Md. Ch. 418, 430; Williams v. Williams, 1 Md. Ch. 199, 201. §227-228 Interlocutory proceedings. 286 petition should be at least as specially descriptive of the evi- dence and proof of facts expected to be obtained from the books and papers, as in an affidavit in a case at law in reference to the testimony of an absent witness. 9 By the terms of the statute the applicant must satisfy the court that the books con- tain material and necessary evidence and that the applicant cannot safely go to trial without the benefit of the testimony. 10 §228. Enforcing production. — An order of court re- quiring the production of books may be enforced by attach- ment, 1 or an order pro confesso may be passed, and followed by a decree ex parte? Moreover, the production of any paper, document or thing for inspection may be compelled by the court at any stage of a proceeding; 3 similarly in regard to the "Duvall v. Farmers' Bank, 2 Bl. 686, 688; in this case the petition was held too indefinite and general. In Williams v. Savage Mfg. Co., 3 Md. Ch. 418, 430, the applica- tion did not designate the books called for nor the, facts expected to be proved by them; but the allegation was stated hypothe'tically "that if they have been kept with any regard to good faith and accuracy they must contain evidence pertinent to the issues in the cause." This was an insufficient statement of the facts expected to be proved. 10 Code, art. 16, sec. 24. 1 Williams v. Williams, 1 Md. Ch. 199, 201 ; compare Alex. Ch. Pr. 98. 2 Under the provisions of code, art. 16, sec. 25, as follows: "In any case where a court of equity may order the production of books in the possession of any party in the said court, on the failure of such party to produce such books so directed to be produced by the day therein limited, or to show sufficient cause for such failure, during the first four days of the succeeding term, or any other time that may be appointed therefor, the said court may in its discretion take the allegations in the bill of complaint of the party requiring the produc- tion of the said books pro confesso, and decree ex parte, in such manner as shall appear just and reasonable." This section is referred to in Eschbach v. Lightner, 31 Md. 528, 532, and Buckingham v. Peddi- cord, 2 Bl. 447, 457. 3 Under the provisions of code, art. 75, sec. 95, as follows: "When- ever at the trial, hearing, or any other stage of an action, suit, petition, cause or matter at law or in equity, it shall appear to the court that the attendance or testimony of any person or witness, or the pro- duction of any paper, document or thing not produced by any party is necessary to the purposes of justice, the court may require any party to produce such paper, document or thing for inspection by court or jury, or may of its own motion issue process for the pro- 28 7 Interlocutory proceedings. §228-230 production of documents before an auditor. 4 §229. Ordering the payment of money into court.— The practice of ordering money into court 1 has become one of the most ordinary methods by which the court enforces its jurisdiction of preserving property in dispute pending a liti- gation. 2 The objects of making an order 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 to accel- erate the progress of the case and save costs, since it is evident that the parties will spin out the case while they have the advan- tage of keeping the money. 3 §230. Interest of applicant; allegations of peti- tion. — Those who make this motion must show that 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. It is not necessary that the party moving for the order should show an unquestionable right to a part or the whole of the money proposed to be called in ; it is enough that he show an interest in the safety and final disposition of the funds. 1 The facts upon which the bill or petition, praying that money be brought into coiirt, are based, must be found in the duction of such person, witness, paper, document or thing, and may- adjourn or postpone the trial or hearing, or name a day for the further trial or hearing if the trial has begun, or if a hearing shall already have been had, in order that such person, witness, paper, document or thing may attend or be produced, upon such conditions in every case as to time, notice, cost and security, as the court may deem proper." 4 Equity rule 55; code, art. 16, sec. 22. /Upon the general subject see Daniell, Ch. Pr. 1770-1782; Beach, Eq. Pr. sees. 603, 604. 2 Dillon v. Ins. Co., 44 Md. 386, 396. 3 McKim v. Thompson, 1 Bl. 150, 159; see this case, in which the subject is treated quite fully, with reference to English cases; see also Duvall v. Waters, 1 Bl. 569, 579; Davis v. Gemmell, 73 Md. 530, 533- [§230.] iMcKim v. Thompson, 1 Bl. 150, 157, 172; Hopkins v. Mc- Elderry, 4 Md. Ch. 23, 24. In McKim v. Thompson, 1 Bl. 150, 176, the arbitrators decided that the plaintiffs had no claim upon the money. The court had §230 Interlocutory proceedings. 28 & case either admitted or so established a.s to be open to no further controversy at any subsequent stage of the proceed- ings. 2 If tflie matter is submitted upon petition and answer without proof, the propriety of the court's action depends en- tirely upon the admissions of the answer. 3 If testimony is taken upon a petition, the court acts upon such facts as are admitted. by the pleadings or established by the proof. 4 In some cases previously found (page 168) that the holder of the money had no- right or .title to the funds. In Dillon v. Ins. Co., 44 Md. 386, the court held that the plain- tiff had established its right to the money in the hands of the defend- ant, and that the latter, had no interest therein, but was to be regarded and treated as a trustee. In this case the prayer of the bill was for an order requiring the defendant to bring the money into court, or that a receiver might be appointed to take charge of the same. The first prayer was granted. In Alex. Ch. Pr. 96, it is said that if the defendant admits by his answer, or by documents filed by him as part of his answer, or by any subsequent proceedings, that he has in his hands a sum of money belonging to the plaintiff, or forming part of a fund in which the plain- tiff is interested, and of which a distribution is sought by the bill,, the court will on application of the plaintiff order such sum of money to be paid into court, and that it is not necessary for the applicant to show that the fund is in any danger from the misconduct or insol- vency of the defendant; nor is it necessary that the admission should appear upon the face of the answer, as was supposed in some early cases. 2 McKim v. Thompson, 1 Bl. 150, 159-161; it is not necessary that the facts should be expressly admitted in the defendant's answer to a bill of complaint; ibidem, p. 157. If the requisite facts are found, the party cannot at any subsequent stage of the proceedings contradict or explain them away; ibidem, pp. 157, 159; (see Hopkins v. McEldery,. 4 Md. Ch. 23, 24) ; an admitted or incontrovertible state of facts is re- quired as the foundation of an order to bring money into court; ibidem, p. 172; and see Contee v. Dawson, 2 Bl. 264, 269. 3 Hopkins v. McEldery, 4 Md. Ch. 23, 24; in this case the admissions in the answer were not such as to enable the court to say that the precise sum was due. If the order is proposed to be based upon the admissions of the defendant, the truth of all the pertinent mat- ters alleged in the answer must necessarily be conceded, as in a final hearing upon bill and answer; Contee v. Dawson, 2 Bl. 264, 267. *As in Dillon v. Ins. Co., 44 Md. 386, 388; McKim v. Thompson, 1 Bl. ISO, 155-156. In Contee v. Dawson, 2 Bl. 264, 266, it was said that the English- cases are grounded upon an interest in the plaintiff, and an ad- mission in the answer itself, or an admission by reference to a schedule,, or to books or documents, or upon an auditor's report confirmed. 2S9 Interlocutory proceedings. §230-231 it may be to the advantage of a party to be allowed to bring into court a sum of money for which he is chargeable, in order to avoid further interest or costs ; and in a proper case the court may allow this to be done. 5 §231. Procedure upon petition ; order not appeala- ble. — Upon a petition or prayer to direct money to be brought into court, the first order is usually conditional, that the defend- ant pay the money into court, or show cause to the contrary, by a certain day; 1 and if there be a failure to show cause as re- quired, a peremptory, order may be obtained, and enforced by attachment, 2 but not by the writ of fieri fa-cias. 3 If an answer is filed objecting to the application, a final order cannot be passed requiring the money to be brought into court, without notice 5 Chase v. Manhardt, I Bl. 333, 343; as in Smith v. Anderson, 18 Md. 520, 528; Wayman v. Stockett, 4 Md. Ch. 495, 496, 497-498: Diffen- bach v. Vogeler, 61 Md. 370, 377. As to requiring a purchaser to pay the purchase money into court in an application by him for a decree of specific performance, see Mc- Kim v. Thompson, 1 Bl. 150, 161; Contee v. Dawson, 2 Bl. 264, 269- 270; and post, "specific performance." Code, art. 16, sec. 202, provides that the court may order any trustee appointed by the court "to bring into court any money, notes or bonds he may receive for the purchase money on any sale he may make." See Latimer v. Hanson, 1 Bl. 51, 53, 56; compare Ehlen v. Ehlen, 63 Md. 267, 273; post, sec. 515. In Baltimore city rule 26 of the equity courts provides for the deposit in bank of money or securities brought into court, and for the payment or delivery thereof by the bank, under the order of the court, and for the procedure in reference thereto. *As in McKim v. Thompson, 1 Bl. 150, 154; Hopkins v. McElderry, 4 Md. Ch. 23, 24; Dillon v. Ins. Co., 44 Md. 386, 388; see also Alex. Ch. Pr. 96. 2 As in McKim v. Thompson, 1 Bl. 150, 174. 3 United, &c, Co. v. Stevens, 67 Md. 156, 160; in this case the order directed a party to pay into court a sum of money, the same to be paid to a claimant. The claimant issued a writ of fieri facias upon this order. The court said that if the order had provided that the money should be paid directly to the claimant, a fieri facias would have been proper, but that it would not lie to enforce payment of the money into court. If a party obtaining an order for the payment of money apprehends the necessity of a fieri facias to enforce it, he can have the order so drawn as to make the money payable directly to himself. To the same effect see Owings v. Worthington, 4 Md. 260, 261. 19 §231-232 Interlocutory proceedings. 290 to, or hearing of, the party affected thereby.* An order direct- ing money to be brought into court by a given day, to be de- posited in bank to the credit of the cause, subject to further order, is not a final order, and is not the subject of appeal. No right is determined by such an order, as it does not profess to affect any right which either of the litigating parties may have to the fund, except the mere right to retain custody of it pend- ing the litigation. 5 §232. Issues for jury trial; purpose of ; discretion oi court. — Courts of equity have the power and full right to de- cide every question of law or fact 1 which may arise out of the subject-matter before them and over which they have juris- diction; 2 and also had by their original organization inherent power and authority to award issues of fact or law, to be sent to courts of law for trial, to inform the mind of the court. 3 In addition to this, provision has been made by statutes for a jury trial of issues of fact in certain classes of cases.* An issue 4 Brooks v. Dent, 4 Md. Ch. 473, 474. 5 Dillon v. Ins. Co., 44 Md. 386, 394-395 ; McKim v. Thompson, 1 Bl. ISO, 173; Thompson v. McKim, 6 H. & J. 302, 334. See also post, sec. 313- J See in general Daniell, Ch. Pr. 1071-1149; Beach, Eq. Pr. sees. 649- 671; Foster, Fed. Pr. sees. 301-306; Phelps, Jur. Eq. sec. 128. In Cates v. Allen, 149 U. S. 451, 459, it is said that in the courts of the United States the distinction between law and equity is a matter of substance and not merely of form and procedure; and that the fact that the chancery court has the power to summon a jury on occasion cannot be regarded as the equivalent of the right of trial by jury secured by the seventh amendment to the constitution. 2 Chase v. Winans, 59 Md. 475, 479; Hilleary v. Crow, 1 H. & J. 542, 544- 3 Barth v. Rosenfeld, 36 Md. 604, 613; in Hilleary v. Crow, 1 H. & J. 542, S44> it was said by the chancellor that "as the trial by jury is justly considered as far superior to a trial by any one person whatever on written depositions, it has always appeared proper, and has there- fore been the -practice, to direct issues in important questions of facts;" but where the matter in dispute is small such reference should not be made; compare Ringgold v. Jones, 1 Bl. 89, note case; An- drews v. Scotton, 2 Bl. 629, 654. *See post, sec. 234. The chancellor was authorized to take the opinion of a common law judge upon questions of law Alex Ch Pr 175- 291 Interlocutory proceedings. §232 of fact to be tried by a jury is not a matter of right, at any stage of the proceedings, independently of statute; 5 and in the exer- cise of a discretion it should only be allowed where the proof before the judge creates doubt, by reason of conflict, doubtful credibility of witnesses, or where from a mass of circumstances it may be difficult to draw a proper conclusion. It is resorted to simply as a means of informing the conscience of the court; and the expense and delay incident to such a mode of trial should only be incurred when the court, in the exercise of a sound discretion, may deem it necessary. It is never allowed as a substitute for the failure of proof, or for omitted evidence. 6 And even where the testimony is conflicting and contradictory, a resort to a court of law for the decision of a jury rests in sound discretion, and is not necessary if the conscience of the chan- cellor can be satisfied without it, 7 or if he could to his own satis-* faction decide himself upon the evidence. 3 As issues are to be used only in cases where it may be difficult for the court to draw a proper conclusion upon the questions of fact presented for decision, it follows that it is improper to grant issues until the court can know or see by examination what would be the state of the proof, whether doubtful or conflicting, and proper to be referred to a jury. Hence where application was made for issues before the court had means of ascertaining the nature and character of the proof proposed to be produced, and there- fore could not determine upon the necessity or propriety of re- sorting to such mode of trial, the application was properly re- jected. 9 5 Beach, Eq. Pr. sec. 659; compare Townshend v. Townshend, 5 Md. 287, 295. In Alex. Ch. Pr. 174, it is said that "the only exception seems to be where the heir at law controverts the validity of a will of lands. He has a right to demand an issue.'' But this has not been recog- nized in Maryland; Chase v. Winans, 59 Md. 47s, 480; see also Forn- shill v. Murray, 1 Bl. 479, 485. "Chase v. Winans, 59 Md. 475, 479-480; Fornshill v. Murray, 1 Bl. 479, 485- 7 Key v. Knott, 9 G. & J. 342, 364- 8 Stewart v. Iglehart, 7 G. & J. 132, 138; as in Fornshill v. Mur- ray, 1 Bl. 479, 485, in which the chancellor said there was no room for doubt upon the evidence. It is said that questions of fraud are eminently suitable for the consideration of a jury; Goodman v. Wineland, 61 Md. 449, 454. "Chase v. Winans, 59 Md. 475, 479"48o. §233-234 Interlocutory proceedings. 292 §233. Effect of the verdict of the jury.— A verdict found by a jury upon an issue of fact is not conclusive upon either the court or the parties. 1 The court is at liberty to entertain a motion for a new trial, or to disregard the verdict entirely. 2 But the finding of the jury should be sustained un- less against the absolute convictions of the court to the con- trary. 3 The party against whom the verdict is given has a right to move for a new trial or to proceed to take further testi- mony in support of his case, notwithstanding the court refuses to disturb the verdict, upon a motion for a new trial. But if no such action is taken by the party, the court proceeds to decree. 4 §234. Statutory provisions in certain cases. — The code provides for issues for trial by jury, as a matter of right, in certain cases, as follows; 1 in a proceeding to vacate any conveyance or contract or other act as fraudulent against cred- itors, when the debt of the plaintiff shall not be admitted by the pleadings in the case on the part of the defendant interested in contesting the same, the court shall, on application of any of the parties, send to any court of law an issue for determining the fact of such indebtedness, subject to the rules usually applied to issues out of chancery; 2 in a proceeding by a judgment 1 See Beach, Eq. Pr. sec. 666; Foster, Fed. Pr. sec. 305. 2 Barth v. Rosenfeld, 36 Md. 604, 614, 618; as was done by the lower court in Goodman v. Wineland, 61 Md. 449, 454; but the appellate . court adopted the jury's findings and decreed accordingly. Compare Kohn v. McNulta, 147 U. S. 238, 240; Idaho v. Brad- bury, 132 U. S. 509, 516. 'Hoffman v. Smith, 1 Md. 475, 489. 4 Barth v. Rosenfeld, 36 Md. 604, 618; there may thus be two trials, one before a jury, and, after an adverse verdict, before the court. It is said in this case that generally such a verdict is treated as con- clusive between the parties, for persons who have had an ample oppor- tunity of bringing- before a jury such evidence as they think proper and material to the case are satisfied with the result, at least, if the result of the investigation be such as not to lead to an order for a new trial. [§ 2 34-] 1 The right is waived unless seasonably asserted; see the cases collected in Beach, Eq. Pr. sees. 656 and 662. 2 Code, art. 16, sec. 46; see post, ch. xxxi. In Goodman v. Wineland, 61 Md. 449, 454, it was not deemed material to decide whether the verdict of the jury is conclusive in cases under this statute. Their 293 Interlocutory proceedings. §234-235 creditor of a corporation against the debtors to the corpora- tion, any of the defendants may pray a trial at law of' any issue of fact in said case, which issue shall be sent to a court of law for trial; 3 in attachments issued upon decrees, if any party shall pray a jury trial at any time before' such attachment case shall be determined by the court of equity, such attachment proceed- ings shall be transmitted to a court of law to be tried as in cases of attachment on judgment; * in a proceeding to obtain a declaratory decree wherever the court shall be of the opinion that there is a question involved which a party may be entitled under the constitution to have submitted to a jury, the court shall, if such party requires it, direct issues to be made up and sent to any court of law, the order granting or denying such issues being subject to appeal. 5 Every issue of devisavit vel nan sent from a court of equity shall be tried in the county of the office of the register of wills where the will is filed. §235. Method of procedure. — The court settles the form of the issue 1 and directs which party shall be plaintiff findings are at least entitled to great weight and ought to prevail whenever the court of equity is not clearly convinced they are errone- ous. Mere doubts of their correctness should not prevail against them- 3 Code, art. 23, sec. 300. 4 Code, art. 9, sec. 28. 5 Code, art. 16, sec. 30, as amended by the act of 1890, ch. 64; see post, chapter xxxi. 6 Code, art. 93, sec. 339. 1 The feigned issue used in England is obsolete. See the forms in Hoffman v. Smith, 1 Md. 475, 478; Barth v. Rosenfeld, 36 Md. 604, 611, 617; the issues are so condensed as to present some proposition the affirmative or negative of which cannot be affirmed or denied without finding all other facts necessary to the conclusion. They may involve questions of law and fact, and objection to their form cannot be considered on appeal unless made before the trial below. In Baltimore city it is provided by the code of public local laws, art. 4, sec. 174, that whenever in any case instituted in equity courts a jury is asked for and allowed, or is desired by the judge thereof, the judge shall issue an order to the sheriff of Baltimore city, re- quiring him to summon twenty jurors to attend the court, when proceedings shall be had in such cases as is usual in like cases in equity. The power to summon a jury being expressly conferred, all the incidental powers were necessarily included, and these embraced the formation of the issues and the direction of the position of the §235-236 Interlocutory proceedings. 294 and which shall be defendant, 2 and when and where the trial shall be had. The trial is conducted in the manner usual in courts of law excepting in so far as may be otherwise directed by the order awarding the issue. 3 Exceptions. may be taken to any opinion given by the court before whom the issues are tried, and an appeal may be taken on such exceptions. 4 The case in the law court may be removed in case a fair and impar- tial trial cannot be had in that court. 5 A motion to quash the verdict may be made, or a motion for a new trial ; either being addressed to the equity court. 6 §236. Consolidation of suits ; purpose of. — There is no statutory provision in reference to the consolidation 1 of suits in equity; 2 but, applying the maxim ''equity prevents multiplicity of suits," cases pending at the same time in the same court in relation to the same subject-matter, and which parties in trying the same. There is no provision for bills of ex- ceptions, the provisions of code, art. 5, sec. 5, not applying to a trial in an equity court; see Barth v. Rosenfeld, 36 Md. 604, 615, upon this subject. In Baltimore city instances of issues may be found in the follow- ing cases: Ex parte Peter Kernan, circuit court, docket 9 A., fol. 115; Creighton v. Disney, circuit court, 32 A., fol. 8. 2 Barth v. Rosenfeld, 36 Md. 604, 613; whether a party should be plaintiff or defendant depends in a great measure on the form of the proceeding and the burden of proof. 3 Alex. Ch. Pr. 174-175; see the proceedings in Barth v. Rosenfeld, 36 Md. 604, and compare Wilson v. Riddle, 123 U. S. 608, 614-615; Watt v. Starke, 101 U. S. 247, 250-255. 4 Code, art. 5, sec. 5; this was not availed of in Goodman v. Wine- land, 61 Md. 449, 455. Formerly it was held that a bill of exceptions could not be signed; Clarke v. Ray, 1 H. & J. 318, 324; nor in Eng- land; Barth v. Rosenfeld, 36 Md. 604, 615. 5 Code, art. 75, sec. 97; Cooke v. Cooke, 41 Md. 362, 371; see post, sec. 238; stated in Griffin v. Leslie, 20 Md. 15, 18. 6 Barth v. Rosenfeld, 36 Md. 604, 611, 618; see this case in full, and Alex. Ch. Pr. 174-176, for further details. iSee in general Beach, Eq. Pr. sees. 581-585; Foster, Fed. Pr. sec. 371; Daniell, Ch. Pr. 1120, note. 2 There is at law; code, art. 50, sees. 7, 8. Causes in different courts may be heard and disposed of to- gether under special circumstances; for example, see Robinson v. Su- preme Council American Fraternal Circle, Daily Record, May 17, 1892. 295 Interlocutory proceedings. §236-237 can be conveniently determined by one decree, may be consol- idated by order passed after due notice. 3 The avoiding of several suits and the consequent expenses, and the convenience of the thing by facilitating progress, are the advantages of con- solidation in proper cases. 4 When consolidated, the rights of all parties are as fully before the court as if they had been orig- inally combined in one suit. 5 §237. When ordered; other points.— Consolidation of cases has been frequently ordered where several suits have been brought for the sale of land under lien or other claims, thereby enabling the land to be sold clear of encumbrances; 1 similarly when two or more bills are filed by creditors for the sale of the same estate, 2 or to set aside conveyances and in various other cases. 3 Where two separate bills are brought 3 Phelps, Jur. Eq. sec. 119. ^Campbell's case, 2 Bl. 209, 241. 5 Holthaus v. Nicholas, 41 Md. 241, 263. *As in Cornell v. McCann, 37 Md. 89, 96; Appold v. Prospect Bldg. Assn., 37 Md. 457, 466; Holthaus v. Nicholas, 41 Md. 241, 256, 263; Trustees v. Heise, 44 Md. 453, 463; Burger v. Greif, 55 Md. 518, 525; Hamilton v. Schwehr, 34 Md. 107, 117. 2 As in Scott v. Amoss, 73 Md. 80, 81; Campbell's case, 2 Bl. 209, 241. 3 As in Crawfords v. Taylor, 6 G. & J. 323, 329; Faringer v. Ramsay, 4 Md. Ch. 33. 39- In Gibbs v. Clagett, 2 G. & J. 14, 28, a bill was alleged to be multifarious; but the court said that if the claims made in the bill had each been made the subject of a separate bill, a court of equity would on motion have consolidated them to avoid the multiplica- tion of suits and costs. In Young v. Lyons, 8 G. 162, 168, the same 'objection of mul- tifariousness in a bill was raised, and the court similarly declared that if separate suits had been brought they would have been consoli- dated. In Higgins v. Higgins, 4 Md. Ch. 238, 244, the court held that there was but one trust estate to be administered, although cut up into several distinct proceedings, and that it was indispensable to justice that the proceedings in all the cases should be consolidated. In Faringer v. Ramsay, 4 Md. Ch. 33, 39, two bills were filed by the same plaintiff against the same defendant to set aside two separate conveyances of the same grantor; by agreement the proof taken in the first case was used in the second and the two cases were argued to- §237-238 Interlocutory proceedings. 296 against the same defendant, seeking to accomplish objects that would conflict the one with the other, they should not be con- solidated. 4 And it is improper that the action should be taken as an arrangement between the plaintiffs in the bills, without the knowledge or consent of the defendants, in order to effect an object the result of which would be likely to be prejudicial to the interests of the latter. 5 Either plaintiff or defendant may apply 6 by petition for an order to consolidate or the court may of its own motion direct such action to be taken. 7 Consolida- tion may take place at any stage of the proceedings. 8 The ap- plication being addressed to the discretion of the court, and the order of the court being interlocutory, no appeal will lie from its action. 9 §238. Removal. — The right of removal, as it is under- stood in cases at law, does not exist in cases in equity. Under the provisions of the eighth section of article four of the con- stitution of 1867, it was argued that a removal was authorized gether. The chancellor consolidated them and immediately dismissed the bills. In Orrick v. Boehm, 49 Md. 72, 98, a trustee under a will was sued in two separate bills involving the same questions and claims arising out of the same will; it was held proper to consolidate the cases. Other instances are in Ohio Life Ins. Co. v. Ross, 2 Md. Ch. 25, 40; Deakin's case, 2 Bl. 398, 403; Thomas v. Brown, 67 Md. 512, 521; Gable v. Williams, 59 Md. 46, 49; Reed v. Stouffer, 56 Md. 236, 250; Commcmwealth v. C. & O. Canal Co., 32 Md. 501, 551; Canal Co. v. Railroad Co., 4 G. & J. 1, 53. *Day v. Postal Telegraph Co., 66 Md. 354, 360. ^Cornell v. McCann, 37 Md. 89, 96. "By the plaintiffs in Cornell v. McCann, 37 Md. 89, 96; by the defend- ant in Orrick v. Boehm, dg Md. 7-?, 98; compare Alex. Ch. Pr. 55; at law, code, art. 50, sec. 8. 7 As apparently in Higgins v. Higgins, 4 Md. Ch. 238, 244. 8 In the decree in Ringgold v. Ringgold, 1 H. & G. 11, 33; just before the decree dismissing the bills in Faringer v. Ramsay, 4 Md. Ch. 33, 39; before a decree for sale in Gable v. Williams, 59 Md. 46, 49, and Trustees v. Heise, 44 Md. 453, 463; after a decree for sale in Burger v Greif 55 Md. 518, 525. »See Mitchell v. Smith, 2 Md. 271, a law case. But see Cornell v. McCann, 37 Md. 89, 96, 99, and Day v. Postal Telegraph Co., 66 Md. 354, 360, in which the appellate court, on appeal from final orders, con- sidered the propriety of the orders of consolidation. 297 Interlocutory proceedings. §238-239 in equity cases. But it was held that such a construction could not be adopted, and that the section applied only to cases at law. 1 And now by the constitutional amendment the right of removal is restricted to certain classes of cases, in which classes a suit in equity is not included. 2 The removal of an equity cause from a trial before a particular judge may, however, be necessary if the judge "may be interested, or where either of the parties may be connected with him, by affinity or consan- guinity, within such degrees as now are or may hereafter be prescribed by law, or where he shall have been of counsel in the case." 3 The constitution also provides for a removal in cases of issues sent to a court of law from an equity court. 4 Upon suggestion in writing, under oath of either of the parties that such party cannot have a fair and impartial trial of the issues in the court of law in which the same may be pending, the court shall direct a removal. 5 §239. Rule security for costs. — It is provided by the code 1 that "in all cases in chancery a rule security for costs Cooke v. Cooke, 41 Md. 362, 366-371; Bel Air Club v. State, 74 Md. 297, 302. Compare the provisions of the act of 1896, ch. 229, to the effect that in every case at law or in equity in which it shall appear that the plaintiff is entitled to some relief, but not in the particular court or on the side of the court in which the suit is brought, the case may be re- moved to the proper court of law or equity; post, sec. 268. 2 Proposed by ch. 364 of the acts of 1874, and ratified by the people. Constitution, art. 4, sec. 7; Blackburn v. Craufurd, 22 Md. 447, 458- 459; and see Glenn v. Hebb, 17 Md. 260, 261. 4 As to these issues, see ante, sec. 235. Constitution, art. 4, sec. 8; code, art. 75, sec. 97; Griffin v. Leslie, 20 Md. 15, 18; Cooke v. Cooke, 41 Md. 362, 371; in this latter case it is said: "If a party mistrusts the judgment of the court upon the facts, he may have issues framed and submitted to a jury for trial, and then if there be sufficient prejudice against him in the community, he may safely make the suggestion and affidavit and have the case removed. For that the clause in question specially provides.' - [§239-] Code, art. 16, sec. 152; act of 1844, ch. 219. Compare the following cases at law: Holt v. Tennallytown, 81 Md. 219; Heinekamp v. Beaty, 74 Md. 388; and see Alex. Ch. Pr. 56-57- Under the practice prior to the act of 1844, ch. 219; code, art. 16, sec. 152; which provided that the rule may be laid at any time before final decree, any proceeding by the defendant in a cause, recognizing the plaintiff's right to sue, was a waiver of the defendant's right to have §2P.9 Interlocutory proceedings. 298 may be laid at any time before a final decree is passed, by any defendant, against a plaintiff, non-resident at the time of filing the bill or becoming so after the filing thereof." Where there are two plaintiffs, one being a non-resident and the other a resi- a rule security for costs. Thus, filing an answer to the bill, or filing a petition in reference to the sale of the property in controversy, 'or en- tering a prayer for appeal, waived the right to the rule;- Hatton v. Weems, 12 G. & J. 83, 105-106; Mayer v. Tyson, 1 Bl. 559, 565. It has been said that if the defendant at the time of answering be ignorant of the non-residence of the plaintiff, he may lay the rule as soon as he learns of the fact; but after learning of the non-residence, any act of the defendant recognizing the plaintiffs right to sue would be a waiver; Mayer v. Tyson, 1 Bl. 559, 563-564. Where the right to the rule is once waived, the filing of a supplemental bill of review by the ad- ministrator of the non-resident plaintiff does not revive the right; Hat- ton v. Weems, 12 G. & J. 83, 106. In Berry v. Griffith, 1 H. & G. 440, it was held at law that the court of appeals would not grant a rule on the appellant who had re- moved out of the State after the appeal had been taken. (In Baltimore city it is held that a deposit of money is the only proper method of compliance with the rule; a bond is not accepted.— Brewer.) Compare State v. McCarty, 60 Md. 373, 375, a case at law. In Baltimore city, rule 22 of the equity courts provides that no solicitor or other officer of the court, or his deputy, shall be admitted as security for costs. (The following forms are used in the equity courts of Baltimore city. — Brewer) : The defendant suggests to the court that the plaintiff is a non- resident of the State of Maryland, and he moves the court that said plaintiff be required to give security for costs on pain of having his bill dismissed. Ordered this day of , 189 , by the circuit court number two of Baltimore city, that the plaintiff give secur- ity for costs in this case or show cause to the contrary thereof, before the day of , 189 , provided a copy of the motion and of this order be served on the plaintiff or his solicitor be- fore the day of next. A rule security for costs having been laid on the plaintiff in this case, and a copy of the motion and of the order of the court thereon to show cause having been duly served on the solicitor of the plaintiff, as appears by the service thereof filed; and the plaintiff having shown no cause agaiinst the said order of the court, although the day limited thereon has passed, it is thereupon this day , 189 , by the circuit court number two of Baltimore city, adjudged and ordered that the bill of complaint be and the same is hereby dismissed with costs to the defendant. 299 Interlocutory proceedings. §239-240 dent, security for costs cannot be required. 2 After a decree had been passed without having disposed of a pending rule, the decree was not set aside for the purpose of getting the rule out of the way. When the rule is improperly laid, it cannot be enforced ; but if properly laid and not complied with by the plaintiff, the bill will be dismissed. The rule cannot be laid by ' a defendant who is in default 3 $240. Rule further proceedings.— The rule further proceedings 1 has been adopted as a substitute for the English practice of motions to dismiss for want of prosecution. 2 The equity rules provide that if the plaintiff omits to file the replication within fifteen days after answer filed, the defendant shall be entitled to a rule further proceedings within ten days after notice of such rule ; and upon failure to comply with such 2 Mayer v. Tyson, i Bl. 559, 564. 3 Hatton v. Weems, 12 G. & J. 83, 105, 106. In State v. Layman, 46 Md. 190, 192, a case at law, it was objected on appeal that the rule security for costs was laid without any proof of the plaintiff being a non-resident of the State. The motion was to strike out the rule which had been made absolute. There was no proof upon either side found in the record. This left the presumption in favor of the "rite acta" on the part of the court, and such presumption was conclusive. Under the old practice, if the non-residence of the plaintiff ap- peared from the bill, the rule could be laid on the docket during the sit- tings of the term; but where the fact of non-residence did not appear on the bill, the matter was brought before the court by petition, and a spe- cial order was obtained; Mayer v. Tyson, 1 Bl. 559, 563-565; Hatton v. Weems, 12 G. & J. 83, 105. The form of security was a bond to the State in a sum sufficient to cover the costs with resident approved se- curity; Mayer v. Tyson, 1 Bl. 559, 565. 1 See in general Alex. Ch. Pr. 62-63; Beach, Eq. Pr. sees. 465-466; Foster, Fed. Pr. sec. 292. 2 Whelan v. Cooke, 29 Md. I, 8; in this case it was held that the rule was properly laid under the rules of the lower court. It was not de- cided whether such motion could be made or rule laid after the cause is at issue and a commission to take testimony issued. In Hall v. McPherson, 3 Bl. 529, 534-535, it is said that after a decree to account each party becomes an actor, and the plaintiff cannot dismiss his bill as of course, but may lay "the common rule further pro- ceedings, so as thereby to lay a foundation for obtaining leave tb dis- miss his bill." §240-241 Interlocutory proceedings. 300 rule, the defendant shall be entitled to have the bill dismissed. 3 An answering defendant may obtain the rule against the plain- tiff to compel the latter to enforce an answer from a co-de- fendant. 4 §241. The writ of ne exeat.— The writ ne exeat regno was used in England to prevent a defendant in equity, indebted to the plaintiff, from going out of the jurisdiction of the court- originally for State purposes, but afterwards as a process be- tween private parties in a chancery suit. In substance it com- manded the sheriff to commit the party to prison until he found sufficient security in double the demand endorsed on the writ, that he would not leave the State without leave of the court. The proceeding was an arrest in the nature of an equitable bail, and the equitable demand must have been actually payable for a liquidated sum. 1 The writ was frequently used in Maryland prior to the adoption of the constitution of 1851, the practice following the English precedents. 2 The constitutional provis- ion, that "no person shall be imprisoned for debt," 3 has generally been regarded in this State as having abolished the writ. 4 The construction of similar provisions in other 3 Equity rule 28; code, art. 16, sec. 148. But if the answer is accompanied with a demurrer or plea, they are to be first disposed of, and can be set for hearing on motion of either side; Phelps, Jur. Eq. sec. 117; Alex. Ch. Pr. 63. Such a dismissal is not a bar to another bill; Royston v. Horner, 75 Md. 557, S6S- "Jones v. Magill, 1 Bl. 177, 198. 1 Story, Eq. Jur. sees. 1464-1475; Beames on Ne Exeat; Phelps, Jur. Eq. sec. 125; Alex. Ch. Pr. 94. 2 Alex. Ch. Pr. 94; the practice is described here. The Maryland cases are: Somerville v. Johnson, 1 H. & McH. 348, 349, where the plaintiff "petitioned to His Excellency, the Governor, and obtained His Lordship's most gracious writ ne exeat provinciam" against the defend- ant to prevent the removal of certain slaves; Cox v. Scott, 5 H. & J. 384; Johnson v. Clendenin, 5 G. & J. 463; Bryson v. Petty, 1 Bl. 182, note case; Sloss v. Mcllvaine, 2 Bl. 72, note case; Bayly v. Bayly, 2 Md.- Ch. 326, 329-334; Feigley v. Feigley, 7 Md. 537, 540; compare Binney's case, 2 Bl. 99, 103. 3 Constitution, 1851, art. 3, sec. 44; constitution, 1867, art. 3, sec. 38. The writ may be used in the District of Columbia; Mackey, Pr. & Pro. 414-415. "Phelps, Jur. Eq. sec. 125; Barroll, Md. Ch. Pr. 163-166. 301 Interlocutory proceedings. §241-242 States, however, has not been uniform. 5 In two Maryland cases, at least, since 185 1, the writ has been issued, 6 and a learned writer suggests several instances in which there would be arguable ground for the contention that it should be used. 7 §242. Sequestration. — The process of sequestration is a writ or commission directed to certain persons, usually four, nominated by the plaintiff, empowering them to take posses- sion of the defendant's real estate and receive the rents and profits thereof and to seize all his personal estate not exempt from execution, and to keep the same in their hands until the defendant shall have performed the decree against him. 1 The writ may be either a mesne process against a party in con- tempt 2 or a judicial writ to enforce the performance of a decree. 3 Although it has been superseded 4 by other more effective rem- edies, 5 the writ remains in full force in Maryland and may be "See the cases cited in Phelps, Jur. Eq. sec. 125. Todd v. Grave, 33 Md. 188, 201, and a case in Baltimore county cited in Barroll's Md. Ch. Pr. 166; see the forms in Carey's Forms, Nos. 695- 697. Rule 12 of the equity rules of the circuit court of Baltimore county provides for the dissolution of the writ by giving bond; see ap- pendix. 7 Phelps, Jur. Eq. sec. 125. iDaniell, Ch. Pr. 1050-1061, &c; Beach, Eq. Pr. sec. 896; Foster, Fed. Pr. sec- 347. Compare Alex. Ch. Pr. 21, 200-203; Phelps, Jur. Eq. sec. 84; Watkins v. Dorsett, 1 Bl. 530, 533; H. K. Chase's case, 1 Bl. 206, 232; Williams' case, 3 Bl. 186, 215; Nat. Park Bank v. Lanahan, 60 Md. 477, 512-513; McKim v. Odom, 3 Bl. 407, 427; Coombs v. Jordan, 3 Bl. 284, 320. 2 As for failure to appear and answer; Alex. Ch. Pr. 21; Daniell, Ch. Pr. 472-475, 494-496. 3 In Keighler v. Ward, 8 Md. 254, 255, the writ was issued upon a peti- tion filed in a case in which a decree for money had been entered, set- ting out the decree and praying for the writ; the writ was on the same day issued by the chancellor. The proceeding is authorized by code, art. 16, sec. 168. 4 In Alex. Ch. Pr. 203, it was said that the process of sequestration had become obsolete in practice, the remedy by fieri facias being more sum- mary and effectual; compare to the same effect Buckingham v. Peddi- cord, 2 Bl. 447.451- 5 The process may be of present service; however, in coercing a cor- poration to perform an order of court, other than for the payment of §242-243 Inteklocutohy proceedings. 302 used in proper cases. The remedy is recognized by the code, both in chancery practice 7 and in proceedings in the orphans' court. 8 §243. Contempt of court. — The power to punish for contempt of court, summarily and without trial, is inherent in all courts of record independent of statute, and is exercised either to vindicate the dignity of the court in case of disrespect shown to it or to its orders; or to compel the performance of some order or decree which the party, although able, refuses to obey. 1 A party in contempt will not be heard by motion or otherwise until he has relieved himself of the contempt. 2 money. It is said in McKim v. Odom, 3 Bl. 407, 420, 422, 426-428, that the only mode of proceeding either to enforce an answer or obe- dience to a decree in the case of a corporation is by a distringas and sequestration of its property. 6 Keighler v. Ward, 8 Md. 234, 263-264; in the arguments and opin- ion in this case, and the opinion in Keighler v. Nicholson, 4 Md. Ch. 86, 91-95, will be found about air the learning of record upon the subject in Maryland. The process may be used in the District of Columbia; Mackey, Pr. & Pro. 425-426, 443. (In circuit court number two of Baltimore city, in the case of Balto. &c, Turnpike Co. v. Balto. Belt R. Co., docket 2, folio 45, a per- emptory order was passed, upon the petition of the plaintiff, directing a commission of sequestration to issue against the defendant corpora- tion because of its violation of an order of injunction; no commission was, however, issued, the matter being settled. — Brewer.) T Code, art. 16, sec. 168; for a form of the writ see Harris Entries, vol. 2, 770; and also Daniell, Ch. Pr. 2365. In the federal courts the remedy is provided for by U. S. equity rules 7 and 8. ' 8 As in art. 93, sees. 189, 236 and 242. 1 Rapalje on Contempt, sees. 1, 3; see in general .Beach, Eq. Pr. sees. 888-893; Foster, Fed. Pr. sees. 341-346; ex parte Maulsby, 13 Md. 625, 635; Eakle v. Smith, 27 Md. 467, 482; ex parte Terry, 128 U. S. 289, 303; Savin, petitioner, 131 U. S. 267, 274; Eilenbecker v. Plymouth County, 134 U. S. 31, 37; in re Debs, 158 U. S. 564, 594-596. For a general statement of the law of contempt, see Phelps, Jur. Eq. sec. 124; the discussion there cannot be extended without going be- yond Maryland equity decisions; see Rapalje on Contempt for the general law of the subject. 2 Gilbert v. Arnold, 30 Md. 29, 35-36; Williamson v. Carnan, 1 G. & J. 184, 211, per Bland, Ch. In the former case a party withdrew a de- 303 Interlocutory proceedings. §244 §244. Statutory provisions. — It is provided by statute that the power of both courts of law and of equity to issue at- tachments and to inflict summary punishments for contempts of court shall not be construed to extend to any cases except the following: first, the misbehavior of any person or persons in the presence of the court or so near thereto as to obstruct the administration of justice; second, the misbehavior of any of the officers of the courts in their official transactions ; or, third, the disobedience or resistance of any officer of the court, party, juror, witness or any other person or persons to any lawful writ, process, order, rule, decree or command of the court. 1 This act is declaratory of what constitutes a contempt, and is intended to restrain the courts from punishing as a contempt anything that does not fall within its terms. 2 It therefore ex- cludes proceedings for contempt in case of a failure to pay a money decree. 3 In divorce cases, orders for the payment of murrer without leave of the court, thereby subjecting himself to the terms of code, art. 16, sec. 141, which provides that such a party shall be in contempt until the fine of ten dollars be paid; the party attempted to file his answer without paying the fine, but the court refused to con- sider it. (In Baltimore city the following form of commitment is used. — Brewer) : The defendant, , having been brought before the court under the writ of attachment heretofore issued against him as for a contempt for his non-compliance with the order of this court, passed conditionally on the day of , and made final on the day of , 189 , and being still in contempt for his non-compliance therewith, the court being satisfied from the proof in the cause that he is able to comply with said order, it is y this day of , 189 , ordered by the authority of the circuit court of Baltimore city that the said pay the costs of the attachment and stand committed to the custody of the warden of the jail of Baltimore city until he shall have purged the contempt by his compliance with said order, and that the sheriff of Baltimore city deliver the body of said to the said warden, together with a copy of this order to be furnished by the clerk of this court. iCode, art. 26, sec. 4, being the act of 1853, ch. 450, sec. 1. *Ex parte Maulsby, 13 Md. 625, 635. 3 Phelps, Jur. Eq. sec. 124. In the following cases are instances of proceedings for contempt prior to the statute: Taylor v. Llewellin, 1 H. & McH. 19, 20, in which §244 Interlocutory proceedings. 304 alimony, costs or counsel fees, may be enforced by attachment for contempt.* A special provision in respect to contempt in courts of equity is to the effect that in order to enforce obe- dience to their process, rules and orders, in all cases where a person is in contempt he shall pay a fine not exceeding twenty dollars before being discharged from the contempt; and shall be committed until the process or order of the court has been obeyed and the fine paid. 5 The provisions of the code relate also to cases where a defendant fails to appear and answer a bill for discovery merely or any other bill ; 7 where a party is sub- jected to the fine prescribed when a plea or demurrer is over- ruled, or withdrawn without leave of the court; 8 where a sheriff the justices of a county court were proceeded against; State v. Stone, 3 H. & McH. us, in which the justices were fined; Garretson v. Cole, i H. & J. 370, 377-381, in which a party neglected to obey the order of court; West v. Hughes, i H. & J. 453, in which the sheriff failed to re- turn a writ; Crapster v. Griffith, 2 Bl. 5, 14-15, in which the defendant did not obey a decree; Binney's case, 2 Bl. 99, 101-102, and note cases; see Cromwell v. Owings, 7 H. & J. 55, 58, in which it was said that at common law it is a contempt of the court issuing an execution to re- plevy property taken under it; Penn v. Brewer, 12 G. & J. 113, 116, in which it was said that it was a contempt of a county court to seek its aid in a case already decreed upon in the chancery court, without communi- cating the proceedings in the latter court. See also post, sees. 619, 620. 4 McCurley v. McCurley, 60 Md. 185, 189. In Stewart, M. & D. sec. 378, it is said that "this is not imprison- ment for debt, for the obligation to pay alimony is a duty rather than a debt; and, besides, the court acts upon the contemptuous refusal rather than the failure to pay the alimony." 5 Code, art. 16, sec. 151; see Alex. Ch. Pr. 25. In Phelps, Jur. Eq. sec. 124, it is said that when the order dis- obeyed is an order for alimony, for the payment of money into court, or the like, it is not usual to order the writ of attachment until after notice of an order nisi, and an opportunity to show cause. But when the contempt is by an officer of the court, by a witness, and in some cases by a party, the attachment may be issued forthwith. See ex parte Maulsby, 13 Md. 625, 635-642, for various matters in respect to the commitment, habeas corpus proceedings, and other mat- ters. 6 Code, art. 16, sec. 172; Alex. Ch. Pr. 27. 7 Code, art. 16, sees. 173-174; Alex. Ch. Pr. 20, 25; West v. Biscoe 6 H. & J. 460, 462. 8 Code, art. 16, sec. 141; Gilbert v. Arnold, 30 Md. 29, 35. 305 Interlocutory proceedings. §244-245 neglects to perform certain duties; 9 for the purpose of execut- ing decrees and orders or compelling the performance thereof; 10 in cases of violations of injunctions; 11 and where any person secretes an infant to prevent the service of process. 12 §245. Motions. — A motion 1 is defined to be an application made to the court for an order. 2 A motion is used where the circumstances are few and simple, and already appear in the proceedings. 3 A party in contempt cannot make a motion ; 4 a person not a party cannot in general make any motion in a cause, except a motion to be made a party. 6 Motions are of course, where by the rules of the court the object of it is granted upon asking for it. The term motion is applied in practice chiefly to applications to the court for a rule security for costs; 7 for a rule further proceedings; 8 to strike papers from the file, or that they be not received f to grant or dissolve an injunc- tion; 10 to amend. 11 9 Code, art. 87, sees. 16-19; Alex. Ch. Pr. 23-25; West v. Hyde, 1 H. & J- 453- 10 Code, art. 16, sees. 168-169. "Code, art. i6,.secs. 63, 65; see Eilenbecker v. Plymouth County, 134 U. S. 31. Compare also code, art. 16, sec. 232, in reference to witnesses before an examiner or commissioner. 12 Code, art. 16, sec. 61. 1 See in general Beach,' Eq. Pr. sees. 554-563) Foster, Fed. Pr. 194- 198; Alex. Ch. Pr. 78-79. 2 It is said that a motion is an application ore tenus; but in practice perhaps all motions are in writing; a motion not in writing seems to be a defect in form; Barth v. Rosenfeld, 36 Md. 604, 616. 3 Alex. Ch. Pr. 78; Phelps, Jur. Eq. sec. 87; in other cases a petition is used. In H. K. Chase's case, 1 Bl. 206, 212, the chancellor spoke of "a matter which could not have been made the subject of a mere mo- tion, because of the necessity of putting upon the record the new facts therein set forth." ^Gilbert v. Arnold, 30 Md. 29, 35; Beach, Eq. Pr. sec. 556. 5 Ross v. Titsworth, 37 N. J. Eq. 333, 339; ante, sec. 77, note. 6 Alex. Ch. Pr. 78; Beach, Eq. Pr. sec. 557; Foster, Fed. Pr. sec. 195. As to service of rules, as of course, in Baltimore city, see rule 14 of the equity courts. 7 See ante, sec. 239. 8 See ante, sec. 240. •See post, sec. 249. 10 See post, sec. 593; code, art. 16, sees. 68, 177. "See ante, sees. 181-190. 20 §246 Interlocutory proceedings. 306 §246. Petitions.— A petition 1 is an application in writing by a party to the court, in a cause, for an order, stating the cir- cumstances on which the prayer of the petition is founded. 2 If new facts are to be presented for the action of the court thereon, the procedure should be by petition and not by mo- tion. 3 A petition may be filed by a person not a party to a cause, differing in this respect from a motion. 4 When a peti- tion states new matter it should be sustained by affidavit or documentary evidence. 5 It is provided by the equity rules that the term "bill," as therein used, shall embrace "petition," where by statute or the established practice, petition be proper. 6 The form of petition and the proceedings upon them are thus sim- ilar to those upon bills. 7 A petition must be regularly and properly denied under oath, 8 or it may be taken pro confesso. 9 The matter in controversy may be heard upon petition, answer and proofs, or upon petition, and answer. 10 The word peti- 1 Upon the general subject see Beach, Eq. Pr. sees. 564-57°; Foster, Fed. Pr. sees. 199, 202; Alex. Ch. Pr. 78-80. 2 Alex. Ch. Pr. 78. In Phelps, Jur. Eq. sec. 88, it is said that "if new matter is to he introduced, or if the application rests on facts to be collected from dif- ferent parts of the proceedings, it is usual to file a petition." 3 H. K. Chase's case, 1 Bl. 206, 212. 4 Beach, Eq. Pr. sec. 564; Foster, Fed. Pr. sec. 199. 5 Alex. Ch. Pr. 78; Phelps, Jur. Eq. sec. 88. (In Baltimore city every petition stating facts upon which the court is requested to act, must be sworn to by the petitioner or some representative on his behalf. This applies to all cases except where record evidence of the truth of the allegation of the petition is filed with the petition; thus a guardian petitioning for the payment to him of funds appearing to be due his ward, and filing with his petition a proper certificate of his appointment as guardian, need not swear to his peti- tion. — Brewer.) 'Equity rule 3; code, art. 16, sec. 119. 7 See equity rule 4; code, art. 16, sec. 120; equity rule 7; code, art. 16, sec. 122; equity rule 13; code, art. 16, sec. 131; and several others. Special provision is made for taking testimony upon any petition, mo- tion or other interlocutory motion; equity rule 46; code, art. 16, sec. 226. 8 H. K. Chase's case, 1 Bl. 206, 212. 9 Equity rule 12; code, art. 16, sec. 127; Fenwick v. Laughlin, 1 Bl. 474, 478-479- 10 McKaig v. James, 66 Md. 583, 584. See also equity rule 27; code, art. 16, sec. 147; ante, sec. 163. In Ringgold v. Emory, 1 Md. 348, 350, it was said that the order 307 Interlocutory proceedings. §246-247 tion is also used in a different sense from that of "interlocutory petition," chiefly in cases of statutory proceedings. 11 §247. When petition may be used instead of bill.— An exact rule as to when a proceeding may be had by way of petition in a pending cause, and when an original bill is neces- sary, does not appear to have been formulated, except in pro- ceedings to vacate an enrolled decree or order. 1 An in- terlocutory order may be revoked at any time during the prog- ress of the cause upon petition. 2 Where there is a fund in court, and subject to its order, and all persons interested in it are parties to the suit, a claimant of any portion of it may assert his claim by petition, 3 without asking for a subpoena against the original parties or other claimants, or praying relief. 4 A dismissing the petition in that case dismissed all the subsequent pro- ceedings which were based upon that petition. "See the list of statutory proceedings by petition in the index to Carey's Forms, ioio, 1015-1016. 1 See post, sees. 287, 288. See the rule as suggested by counsel in Green v. Keen, 4 Md. 98, 103. 2 Waring v. Turton, 44 Md. 535, 547. 3 As in Griffith v. Parks, 32 Md. 1, 4-5, and cases cited. In this case the real estate of a surety on a defaulting guardian's bond was sold for distribution, and the proceeds of sale were in court. The wards of the defaulting guardian filed their petition praying to be paid, out of the fund, the amounts due them by the guardian. As to the objection that the proceedings should be by original bill against the estate of the surety, the court said that as there was no dispute as to the existence of the claims against the guardian, the parties should not be required to institute an independent original proceeding where there was one already pending, in which the right to proceed against the real estate of the surety could be investigated with less expense and trouble. In Wingert v. Gordon, 66 Md. 106, 109, an attorney proceeded by petition to subject a fund in court, belonging to married women, to a lien for his professional services. Other cases in which a petition has been held sufficient to recover a fund are Maddox v. Dent, 4 Md. Ch. 543, 548; Dent v. Maddox, 4 Md. 522, 530; Chenowith v. Smith, .29 Md. 18, 23; Baltzell v. Foss, 1 H. & G. 504, 507; Duvall v. Farmers' Bank, 4 G. & J. 282, 292-293; and see Mat- tingly v. Grimes, 48 Md. 102, 107; Thomas v. Farmers' Bank, 46 Md. 43, SS-S6; Brown v. Thomas, 46 Md. 636, 641; Dunnington v. Evans, yg Md. 83, 92-93- the payment of money, unless such delivery or payment be directed to be made to a receiver appointed by such court; or from an order determining a question of right between the parties, and directing an account to be stated on the principle of such determination." By this section 2 it therefore appears that an appeal is allowed : 1. From any order granting an injunction; 2. From a refusal to dissolve the same; and do not rest upon a foundation of strict right, which may not be disregarded." 9 Owings v. Worthington, io G. & J. 283, 294. "Cumberland Coal Co. v. McKaig, 27 Md. 258, 267; similarly in Universal Ins. Co. v. Bachus, 51 Md. 28, 32, a case at law. 11 Wylie v. Johnston, 29 Md. 298, 304. 12 Hill v. Reifsnider, 39 Md. 429, 430; compare Belt v. Bowie, 65 Md. 350,' 352. "Barnum v. Barnum, 42 Md. 251, 324; it was said that the court below must, in the nature of things, be the best judge of the propriety of granting or refusing such an application. 14 Swartz v. Chickering, 58 Md. 290, 297-298. 15 Freeny v. Freeny, 80 Md. 406, 409. See also Beach, Eq. Pr. sees. 933-934- 1 Code, art. 5. sec. 25. 2 The first three clauses of the above section came into the law by the act of 1835, ch. 346, sec. 2, and the act of 1835, ch. 380, sec. 3; and have been continued in almost the same phraseology in the codes of i860 389 Appeal. §316 3. From an order appointing a receiver; the answer of the party appealing being first filed in the cause; 4. From an order dissolving an injunction ; 5. From an order for the sale, conveyance or delivery of real or personal property, or the payment of money, unless such delivery or payment be directed to be made to a receiver appointed by such court ; 6. From an order determining a question of right between the parties and directing an account to be stated on the prin- ciple of such determination. The orders from which appeals are allowed by this section are interlocutory orders from which no appeal would lie under the terms of the preceding section, 3 which confines appeals to final decrees or orders in the nature of final decrees. 4 The section simply provides for appeals from certain special or- ders or interlocutory proceedings not in their nature final. 5 and 1888; and each separate clause has continuously received the same construction; Mayor, &c, v. Weatherby, 52 Md. 442, 447; Blackburn v. Craufurd, 22 Md. 447, 456; Haight v. Burr, 19 Md. 130, 133. The act of 1835, ch. 346, sec. 2, provided: "When any injunction which has heretofore issued, or shall hereafter issue from the court of chancery, or any county court as a court of equity, or where any re- ceiver or receivers have been, or shall be ordered or appointed by the court of chancery or county court as a court of equity, it shall be law- ful- for the defendants in the case, or any of them, to appeal from the granting of such injunction, or from the refusal to dissolve the same, or from the order, ordering or appointing such receiver, the answer of the defendant or defendants being first filed, &c." The act of 1835, ch. 380, sec. 3, provided:. "Where any injunction shall issue from the court of chancery or any county court as a court of equity, the defendant or defendants in the case, or any of them, may appeal, the answer or answers of such appellants being first filed, from the order of the chancellor granting the injunction, or refusing to dis- solve it, to the court of appeals, &c." In Guyton v. Flack, 7 Md. 398, 402, it is said that the third sec- tion of ch. 380 relates only to injunctions; but the second section of ch. 346, passed the same year, makes provision as to the appointment of receivers as well as the granting of injunctions, and the two sections correspond with each other in providing for appeals and the filing of answers. 3 Section 24 of art. 5. 4 Goodburn v. Stevens, 5 G. 1, 20-21; Barnum v. Barnum, 42 Md. 2Si. 314- 5 Wylie v. Johnston, 29 Md. 298, 303; Chenowith v. Smith, 29 Md. 18, 22. §317-319 Appeal. 390 §317. Orders granting- injunctions. — Prior to the stat- ute it was held that an appeal would not lie from an order granting an injunction, such an order not being final in its nature. 1 An appeal is, however, now expressly allowed by the statute. The sufficiency of the averments of the bill is the only question raised by the appeal. If the averments are suffi- cient, the order will be affirmed, without inquiring into their truth or falsity. If, however, the bill be defective in substance, and the averments insufficient, the order will be reversed with- out regard to the merits of the controversy. 2 §318. Orders refusing to dissolve. — The right to ap- peal from a refusal to dissolve an injunction, granted in ex- press terms by the statute, includes the right of appeal from an order continuing an injunction. The right is not defeated because a case has been set down for final hearing, and other questions are reserved by the court below for further consider- ation j 1 and the appeal lies if taken from an order refusing to dissolve and continuing the injunction until final hearing. 2 §319. Orders appointing receivers.— While an ap- peal is given from an order appointing a receiver, no appeal is given from an order refusing to rescind the appointment, or to discharge the receiver. But in cases where appeals upon other points have been before the court, the question of the propriety of continuing the receiver has been considered, in con- 1 Ringgold's case, I Bl. 5, 13. 2 Lamm v. Burrell, 69 Md. 272, 273-274; and see post, sec. 321. [§3i?-] Griffith v. Clarke, 18 Md. 457, 463. 2 As in Furlong v. Edwards, 3 Md. 99, 106, in, 114; Geiger v. Green, 4 G. 472, 473, 478; Barnes v. Dodge, 7 G. 109, 114, 118. In Ringgold's case, 1 Bl. 5, 13, such an order was held not ap- pealable. Instances of appeals from orders refusing to dissolve injunc- tions may be found in Brawner v. Franklin, 4 G. 463, 471-472; Reeder v. Machen, 57 Md. 56, 60. In Williamson v. Carnan, 1 G. & J. 184, 215-216, (1829), an appeal was entertained from an order continuing an injunction- Alex Ch Pr 183. 391 Appeal. §319-321 nection with such other points. 1 The discharge of a receiver, however, furnishes no ground of appeal. 2 §320. Appeal only after filing answer.— In granting the right of appeal from these orders, the legislature imposed upon the defendant the filing of an answer as one of the condi- tions upon which the right of appeal depended; 1 the filing of an answer being a condition precedent to the exercise of the right of appeal. 2 But for the purposes of an appeal,- a demur- rer to the whole bill is treated as an answer within the meaning of the statute ; the requirements of the statute in respect to the filing of an answer, being in the nature of a restriction upon the right of appeal, should be liberally construed in favor of the right. 3 §321. The answer not considered on appeal. — When an injunction is granted or receiver appointed upon the allega- tions in a bill or petition, and an appeal under this section of the code is taken by the defendant, the court of appeals, in consid- ering the propriety of the order appealed from, is confined to the case made by the bill or petition upon which the order was based, and does not examine the answer, although the statute requires the answer of the party appealing to be first filed in the cause. If the appellate court were influenced by the answer, which was not exhibited to the lower court when the order was a Hull v. Caughy, 66 Md. 104, 105. In Ringgold's case, 1 Bl. 5, 13, such an order was held not ap- pealable. 2 Washington R. R. Co. v. Southern R. R. Co., 55 Md. 153, 156; see also the cases cited, ante, sec. 310. Compare estate of Rachel Colvin, 3 Md. Ch. 278, 300. [§320.] iWagner v. Cohen, 6 G. 97, 102; it is said that the filing of an answer was required "solely for the purpose of preventing unneces- sary delay." Compare Blondheim v. Moore, 11 Md. 365, 370-373, quoted post, sec. 321, note 1; and see Gilbert v. Arnold, 30 Md. 29, 36. 2 Blackburn v. Craufurd, 22 Md. 447, 456; see also sec. 322. 3 Mayor, &c, v. Weatherby, 52 Md. 442, 447-449; in this case one of the defendants answered, and the others demurred, and all jointly ap- pealed; upon motion to dismiss, the court held as stated in the text; citing Mayor, &c, v. Gill, 31 Md. 375, as a case in which an appeal was heard, although no answer was put in other than a demurrer. §321 Appeal. 392 passed, it would practically be exercising- original jurisdiction. Hence it has been uniformly held in such appeals that the ap- pellate court puts aside the answer, and decides the case from a consideration of the bill or petition, and exhibits, if any, alone; 1 the averments of the bill, on appeal, being taken as true. 2 The duty of the appellate court on the appeal is simply to determine whether the case stated by the plaintiff is one which justified the passage of the order appealed from, 3 the correctness of the 1 Wagner v. Cohen, 6 G. 97, 101-102, citing Union Bank v. Poultney, 8 G. & J. 324; Alexander v. Worthington, 5 Md. 471, 477-478; Guyton ' v. Flack, 7 Md. 398, 402; Roman v. Strauss, 10 Md. 89, 96; McCann v. Taylor, 10 Md. 418, 429; Hyde v. Ellery, 18 Md. 496, 499; Haight v. Burr, 19 Md. 130, 133; Blackburn v. Craufurd, 22 Md. 447, 458; Par- sons v. Hughes, 12 Md. 1, 5; Voshell v. Hynson, 26 Md. 83, 93; Gayle v. Fattle, 14 Md. 69,. 83; American Telephone Co. v. Pearce, 71 Md. 535, 538; Lamm v. Burrell, 69 Md. 272, 273; Dittman v. Repp, 50 Md. 516, 520; Robertson v. Berry, 50 Md. 591, 596. See also ante, sec. 317. In Guerand v. Dandelet, 32 Md. 561, 564, it was said that if the answer could be taken into consideration the appellate court would be reviewing the order by the light of other facts than those 'presented to the judge below and upon which he acted; which would not be con- sistent with the exercise of the mere appellate jurisdiction to which the court of appeals is confined. In Blondheim v. Moore, 11 Md. 365, 373, the court says: "To deny an appeal to the defendant, until he shall have answered the bill, and then to say the answer shall not at all be looked to, is not without the appearance of trifling; it is to command an act, which, when per- formed, is to be taken as wholly void of value. The only reason we can imagine for such a procedure is that it enables the complainant to fish out a case from the answer of the defendant sio as to furnish him with the aid necessary to alter his case if need be. It is a species of jug- glery not altogether worthy of commendation. It is, however, the law, and we are bound by it." 2 Rose v. Bevan, 10 Md. 466, 470; Haight v. Burr, 19 Md. 130, 133; Shannon v. Wright, 60 Md. 520, 521-522. In Dittman v. Repp, 50 Md. 516, 520, in which an injunction had been granted by the court below, it was said that "if the defendants had desired the benefit of their answer, they should, upon filing it, have moved to dissolve the injunction, and then, on an appeal from the'order disposing of that motion, the answer would have been before us for consideration. They have not pursued that course, however, and their answer cannot be considered." "Shannon v. Wright, 60 Md. 520, 521-522; Haight v. Burr 19 Md 130, 133- In Robertson v. Berry, 50 Md. 591, 603, it was said, in affirming 393 Appeal. §321-322 order depending entirely upon the sufficiency of the case made by the bill and accompanying exhibits.* §322. Other matters in reference to the appeal.— The answer must not only be filed in the court below, but must also appear in the record. 1 A full transcript of all the proceedings in the court below, up to the time when the appeal was taken, must be transmitted to the court of appeals. 2 As the statute requires the answer of the party appealing to be firist filed in the cause, an appeal taken before the answer is filed is premature and will be dismissed. An insufficient answer is regarded as no answer at all within the view of the statute; hence if such answer be filed, the appeal must be dismissed. It is for the court of appeals and not for the lower court to de- cide upon the sufficiency of the answer on appeal. 3 In order to authorize an appeal from an order granting an injunction it is not necessary that the answer be sworn to, unless an oath is required by the bill ; but to sustain a motion for a dissolution of an injunction it is necessary that an affidavit be made, an order granting an injunction, "we must be understood as intimating no opinion upon any other question than the one directly before us, viz., that the averments of the bill are sufficient to justify the granting of the injunction prayed for." 4 Hankey v. Abrahams, 28 Md. 588, 590. 1 American Tel. Co. v. Pearce, 71 Md. 535,- 538; Blackburn v. Crau- furd, 22 Md. 447, 456. 2 Bkckburn v. Craufurd, 22 Md. 447, 456; otherwise the subsequent proceedings might disclose the fact that the objections to the injunc- tion had been waived, or the appeal withdrawn, or other facts showing the question presented by the appeal to be immaterial. In this case a writ of diminution was applied for, because of the record containing the proceedings subsequent to the bill and exhibits; the motion was not granted. 3 Keighler v. Savage Mnfg. Co., 12 Md. 383, 412-413, citing Richter v. Pue, 9 G. & J. 475; Blondheim v. Moore, 11 Md. 36s, 371, 375; Black- burn v. Craufurd, 22 Md. 447, 456; Belt v. Blackburn, 28 Md. 227, 240; compare Canton Co. v. Northern Central R. Co., 21 Md. 383, 393. In Mayor, &c, v. Magruder, 34 Md. 381, 384, a motion to dismiss an appeal was made on the ground that the answer filed by one of the defendants was defective, and was therefore no answer. It was held that the case was before the court on the appeal of the other defend- ants whose answers were unobjectionable §322-323 Appeal. 394 whether required by the bill or not* A defendant who has an- swered the bill may appeal from an order granting an injunc- tion without waiting for the answers of his co-defendants to be filed. 6 The rule that on an appeal of this character the court looks only to the case presented by the bill, presupposes that the order appealed from proceeded from a court of competent juris- diction. Any objection to the injunction based upon the want of authority in the- court, and shown by the record of its pro- ceedings, must be examined in the court of appeals ; otherwise there would be no restraint upon the usurpation of authority by inferior tribunals. 6 §323. Orders dissolving injunctions. — This provision first appeared in the act of 1832, ch. 197 j 1 prior to which it had been held that an appeal would not lie from an order dis- solving an injunction, 2 such an order being merely interlocu- tory. 3 4 Mahaney v. Lazier, 16 Md. 69, 73; this follows from the provisions of code, art. 16, sec. 146, as follows: "It shall not be necessary for any defendant to make oath to his answer unless required by the plaintiff; * * * but this section shall not apply to motions to dissolve an in- junction or to discharge a receiver;" see ante, sec. 164, and post, sec. 596. 6 Barnes v. Dodge, 7 G. 109, 118; Alexander v. Worthington, 5 Md. 471, 477; Mayor, &c, v. Weatherby, 52 Md. 442, 447. 6 Blaclcburn v. Craufurd, 22 Md. 447, 458; in this case it was con- tended that the record showed that the judge below was disqualified to grant the injunction. 1 The act provided that "whenever any application by bill or other- wise for an injunction has been or shall be overruled or refused, or whenever any order or decree has been or shall be passed or entered, dissolving injunctions, it shall be lawful for any person, &c," to appeal. 2 Ringgold's case, 1 Bl. 5, 13. In Dorsey v. Smith, 2 H. & G. 135, 136, (1828), the appeal was from an order dissolving an injunction. The court took the "occa- sion to declare that they are unanimously of opinion that such appeals will not lie, and that they will consider them an abuse of the right to ap- peal, and will censure them accordingly." In Marshall v. Mayor, &c, 8 G. & J. 214, 217, (1836), the appeal was from a similar order, but was not prosecuted under the act of 1832, ch. 197. The court repeated its declaration made in Dorsey v. Smith, 2 H. & G. 135, and said that it was a matter of surprise that such an appeal should have been brought, in view of the decision in that case. 3 Fullerton v. Miller, 22 Md. 1, 7; see this case in reference to giving bond in appeals of this character; see also post, sec. 326. 395 Appeal. §324 §324. Orders for the sale, conveyance or delivery of property. — The terms of the statute are that an appeal may- be allowed "from an order for the sale, conveyance or de- livery of real or personal property, or the payment of money, unless such delivery or payment be directed to be made to a receiver appointed by such court." This provision first ap- peared in the act of 1841, ch. n. 1 Prior to its passage it had been held that as an appeal would not lie except from a final decree or order in the nature of a final decree, there could be no appeal from an order directing the delivery of certain real and personal property, and an account of the rents and profits thereof, until the account had been finally acted upon by the court. 2 The statute confers the right of an immediate appeal from the orders mentioned in it. 3 While the statute provides for an appeal from an order directing a sale, it makes no pro- vision for an appeal from an order refusing to authorize a sale before final decree, or from an order suspending or rescinding an interlocutory order of sale. 4 And no appeal lies from a simple order requiring property to be delivered to a receiver, without determining any question of right. 5 'The act provided: "That so much of the first section of the said act [1830, ch. 185J as takes away the immediate right of appeal from any decree or order of the court of chancery, or any county court sitting as a court of equity, for the sale, conveyance or delivery of real or personal property, or the payment of money, unless such delivery or payment be directed to be made to a receiver to be appointed by such court, be and the same is hereby repealed; and that from any such decree or order heretofore passed, or hereafter^o be passed, the right of an im- mediate appeal is hereby given." 2 Hatton v. Weems, 10 G. & J. 377, (1839)- See also Fitzhugh v. Mc- Pherson, 9 G. & J. 51, 76; Ridgely v. Bond, 18 Md. 433, 448; Burke v. Chamberlain, 22 Md. 298, 307. 3 Dugan v. Gittings, 3 G. 138, 153; Wheeler v. Stone, 4 G. 38, 46; Wil- helm v. Caylor, 32 Md. 151, 161; in the latter case it is said that the acts of 1841, ch. 11, and 1845, ch. 367, gave the right of immediate ap- peal in certain enumerated cases, but only modified the act of 1830, ch. 185, (which limited the right of appeal to final decrees and orders in the nature of final decrees) in so far as the latter act restricted the right of immediate appeal. The act restored the right of immediate appeal in such cases; Ware v. Richardson, 3 Md. 505, 555. ^Washington R. Co. v. Southern R. Co., 55 Md. 153, 157. 5 Reeder v. Machen, 57 Md. 56, 60. In Cain v. Warford, 7 Md. 282, 286-287, it was held that under the §325 Appeal. 396 §325. Orders determining a question of right and directing an account.— The statute provides that an ap- peal may be allowed from an order determining a question of right between the parties, and directing an account to be stated on the principle of such determination. This provision was introduced into the statute law by the act of 1845, ch - 3 6 7> sec. I, 1 modifying the act of 1830, ch. 185, which limited the right of appeal to final decrees or orders in the nature of final decrees, in so far as the latter act restricted the right of immediate appeal. 2 Its purpose was to enlarge the right of appeal in cases where decrees or orders to account had been passed by the equity courts. In the examination of the order appealed statute an order was appealable which directed a receiver to deliver up to a third person certain property in his hands. The statute "expressly provides an appeal from orders directing the payment of money or the delivery of property except where such payment or delivery is to a re- ceiver. Here the delivery was required to be made by the receiver to the administrator pendente lite, and * * * involved an adjudication of his right to receive the property." > In Burroughs v. Gaither, 66 Md. 171, 192, an order commanded the defendants or some of them to bring the money due on a mortgage into court on or before a given day, "otherwise a decree will be passed" for a sale of the mortgaged premises. This is not a decree for a sale, nor an absolute order for the payment of money, nor an order de- termining a question of right between the parties, and directing an ac- count to be stated on the principles of such determination; and does not come under the provisions of this section of the code. In Dillon v. Conri. Ins. Co., 44 Md. 386, 395, it was said that the order in that case, ordering the defendant to bring certain money into court, is not one of those mentioned in this section of the code. See also White v. White, 5 G. 359, 382; Ch'enowith v. Smith, 29 Md. 18, 22. iThe act provided: "That an appeal may be taken and prosecuted from any decree or order of the court of chancery, or any county court as a court of equity, determining a question of right between the par- ties, and directing an account to be stated, on the principle of such de- termination; provided, that no appeal * * shall delay the execu- tion of the decree or order, * * unless, &c." In Darrington v. Rogers, 1 G. 403, 411, (1843), and in other cases, the court of appeals had decided that an appeal from an order referring a case to an auditor for an account, with directions as to the mode of stating it, was not authorized under the act of 1830, ch. 185, which confined appeals to final decrees and orders in the nature of final de- crees; see ante, sec. 311. 2 Wilhelm v. Caylor, 32 Md. 151, 161. 397 Appeal. §325-326 from, the court of appeals can only inquire into the correctness of the principles announced by the lower court as the basis of the auditor's report. The right of appeal from such interlocu- tory orders is conferred only where a question of right has been determined between the parties and an account directed to be stated on the principle of such determination. The appellate court cannot consider any other questions than those deter- mined by the court below, for the government of the auditor, without exercising original jurisdiction. 3 §326. Orders refusing to grant injunctions. — The code provides that whenever any court having equity jurisdic- tion shall refuse to grant an injunction according to the prayer of the bill or petition filed in the cause, an appeal may be taken from such refusal by any party aggrieved thereby. 1 In ap- 3 Goodburn v. Stevens, 5 G. 1, 20-21. In McLaughlin v. Barnum, 31 Md. 425, 450-451, the court said: "More difficulty is felt in settling the general principles upon which the accounts are to be stated. On this branch of the case we shall con- fine our opinion strictly to the questions which appear to have been decided by the decree appealed from, both because it may be doubtful whether upon these appeals this court has authority to go further, (Goodburn v. Stevens, 5 G. 1), and because the decree itself has ex- pressly reserved for further consideration" all matters in controversy. In Reeder v. Machen, 57 Md. 56, 60, the question of right to certain personal property was fully raised, considered and definitely decided by an order of the court below, and an account was directed to be stated. The case was therefore brought fully within the purview of the statute. In Goodburn v. Stevens, 5 G. 1, 20, an order determined that a partnership continued until a certain date, to which date the firm ac- counts were to be brought down; that the real and personal estate of the partnership was to be applied to the partnership debts; and di- rected an account to be stated upon this basis. In McLaughlin v. Barnum, 31 Md. 425, 428, an order directed an account to be taken of % the rents and profits of a hotel and prescribed the basis upon which they should be calculated; and also directed an account of the value of certain improvements, to be estimated in a cer- tain way. See also Young v. Frost, 5 G. 287, 305-306, as stated in Young v. Frost, 1 Md. 377, 394; Hull v. Caughy, 66 Md. 104, 106; Reiff v. Horst, 55 Md. 42, 46; Davis v. Gemmell, 73 Md. 530, 554, per Miller, J. 1 Code, art. 5, sec. 29. The section further provides that "such right of appeal shall not §326 Appeal. 398 peals under this section the transcript of the record shall be made and transmitted to the court of appeals forthwith after appeal prayed. 2 be prejudiced by the filing of an answer to the said bill or petition on behalf of any opposing party, nor by the taking of depositions in refer- ence to the allegations of the bill or petition to be read on the hearing of the application for an injunction." This clause, first contained in the act of 1868, ch. 102, changed the rule as laid down in Steigerwald v. Winans, 17 Md. 62, 66; Krone v. Krone, 27 Md. 77, 81, and Barnum v. Gordon, 28 Md. 85, 97-98, that no appeal would lie in a case where the order of refusal was passed after answer filed or evidence taken, and that in such case the right of appeal was gone until final hearing. See also State v. Jarrett, 17 Md. 309, 330, note; State v. Northern Central R. Co., 18 Md. 193, 210. See post, sees. 577-578. This section is based upon the act of 1832, ch. 197, which pro- vided that upon the overruling or refusal of an application for an in- junction or dissolving an injunction, any person aggrieved might pre- sent the matter to any judge of the court of appeals, who might award the injunction, &c. ; and the act of 1843, ch. 73, which provided that an appeal should lie without a previous application to any judge of the court of appeals; Fullerton v. Miller, 22 Md. 1, 6-7; see ante, sec. 323; see Steigerwald v. Winans, 17 Md. 62, 63, 66. The code of i860, art. 5, sec. 25, contained in substance the provisions of the previous acts. The act of 1868, ch. 102, which is reproduced in the code of 1888, amended the code of i860, art. 5, sec. 25, chiefly by the addition of the provisions in reference to the filing of the answer and taking depositions, and by providing that the appeal should be heard upon a transcript of the rec- ord, and not upon the original papers. In Stockett v. Bird, 18 Md. 484, 485, the injunction was not asked for in the bill, but by petition on the facts disclosed in the answer. The question was raised whether this case came under the statute, and the court held that it did, 2 Code, art. 5, sec. 31; rule 10 of the rules respecting appeals as modi- fied by rule 27. In Willis v. Jones, 57 Md. 362, 365, it was held that a delay of more than five months in the transmission of the record was not in compliance with the rule. Prior to the act of 1868, ch. 102, the appeal was taken by trans- mitting to the court of appeals the original papers in the case; Steiger- wald v. Winans, 17 Md. 62, 66; Stockett v. Bird, 18 Md. 484, 487; code, of i860, art. 5, sec. 25; McClellan v. Griffith, 29 Md. unreported. The present provision is that "the said appeal shall be heard on a transcript of the said bill or petition, with such other papers or proceedings in the cause as may be necessary for the purposes of the appeal, and so soon as conveniently may be after such transcript shall have been filed in the court of appeals'' ; code, art. 5, sec. 29. In Bonaparte v. Balto., &c, R. Co., 75 Md. 340, 343-344, a pre- 399 Appeal. §327-328 §327. Orders previous to final decree ; the statute.— It is now provided by the code 1 that "on an appeal from a final decree or order, all previous orders which may have been passed in the cause shall be open for revision in the court of appeals, unless an appeal under the preceding section shall have been previously taken from such order." §328. Purpose of the statute ; instances.— The de- sign of the statute is to open, upon appeal from a final decree, all previous orders and decrees constituting a part of the pre- liminary injunction was prayed for in the bill; but instead of granting the injunction at once the court set a day for hearing, and until the hearing could be had, passed a restraining order. Upon the hearing the preliminary injunction was refused, and an appeal was taken from the order of refusal. It was held that this order was within the statute and that the appeal was properly taken under it. 1 Code, art. 5, sec. 26. By the act of 1830, ch. 185, sec. 1, it was provided "that upon ap- peal from a final decree or order in the nature of a final decree, within the time limited by law for such appeals, all previous orders and de- crees, passed in the cause, shall be open in the appellate court in the same .manner as if such previous orders and decrees had been as here- tofore appealed from." There was a question as to how far this act was repealed by the act of 1841, ch. n; ante, sec. 324, note. The two acts were construed to mean that the provision of the former act was left in force, which declared that on appeal from a final decree or order all previous orders should be open for review. The act of 1845, ch. s6y, sec. 3, contained a similar provision; Dugan v. Gittings, 3 G. 138, 153- 154; Phelps v. Stewart, 17 Md. 231, 243. Compare Wilhelm v. Caylor, 32 Md. 151, 161; Ware v. Richardson, 3 Md. 505, 555-556; Strike v. McDonald, 2 H. & G. 191, 260. The language of the code of i860, art. 5, sec. 22, was somewhat different from that of the previous acts. It was that "on an appeal from a final decree or order, all previous orders which may have passed in the cause shall be open for revision in the court of appeals, unless an appeal under the next preceding section (sec. 21) may have previously been taken to such order." This' provision, although not identical with the act of 1830, had the same meaning and was given the same construction; Vickers v. Tracey, 22 Md. 196, 199. The code provided that all previous "orders," (omitting "decrees") should be open for re- view; but the meaning was not varied; Bull v. Pyle, 41 Md. 419, 422; cited in Mayor, &c, v. Tiddy, 63 Md. 514, Si°- The code of 1888 made only verbal changes in the provisions of the section. §328 Appeal. 400 liminary proceeding's leading to the passage of the final decree. 1 Under these provisions it is optional either to prosecute the appeal direct from the special orders mentioned, or to wait for the final decree and appeal from that, on which appeal the whole case would be brought before the appellate court, includ- ing all previous orders and decrees. 2 The right of an imme- diate appeal from the orders mentioned might be waived, and errors in them might be alleged on appeal from the final order or decree. 3 Any special or incidental order passed in the pro- gress of a cause may be reviewed by the court of appeals if there should be an appeal from any final order or decree. The party aggrieved by any interlocutory order has the right of having the action of the court below reviewed in any particular,. if from the result of the entire proceedings he finds cause to take an appeal. This provision relieves the court of appeals from the necessity of deciding a case by detached installments, and enables it to review the action of the lower court in every particular when the case in its entirety is finally disposed of on appeal. 4 The language of the statute is so comprehensive as to embrace all orders or decrees, whether they are matured decrees, professing to establish all the rights in controversy be- tween the parties, 6 or mere interlocutory and preparatory or- ders. 6 If the order or decree in dispute was passed in the cause, and was previous to the final decree, it becomes open for re- vision in the appellate court by force of the statute. 7 In a case 1 Bull v. Pyle, 41 Md. 419, 422; cited in Mayor" &c, v. Tiddy, 63 Md. 514. 519- 5 Wilhelm v. Caylor, 32 Md. 151, 161. 3 Ware v. Richardson, 3 Md. 505, 555; see the facts in this case. *Wylie v. Johnston, 29 Md. 298, 303. 5 As in Strike v. McDonald, 2 H. & G. 191, 260; cited in Dugan v. Git- tings, 3 G. 138, 153; see also Davis v. Gemmell, 73 Md. 530, 554, per Miller, J. ; Ware v. Richardson, 3 Md. 505, 555. 6 As in Snowden v. Dorsey, 6 H. & J. 114; cited in Dugan v. Gittings, 3 G. 138, 153- 7 Dugan v. Gittings, 3 G. 138, 152-153. In Porter v. Askew, n G. & J. 346, 350-351, as stated in Phelps- v. Stewart, 17 Md. 231, 242, a bill was filed for sale for purposes of partition. A decree for sale was passed and executed, and thereafter an order was passed confirming the account of the auditor; from which last order an appeal was taken and it was held that upon this appear the decree for sale was not open for review. In Phelps v. Stewart, 17 401 Appeal. §328 where a bill was demurred to by one defendant, and answered by another, the demurrer was sustained as to one, and as to the other the bill was dismissed. An appeal was taken by the plaintiff from the decree dismissing the bill, but not from the order sustaining the demurrer; but, on the appeal, the order sustaining the demurrer was open for review. 8 Md. 231, 242, the court said that "although that decision would seem to be in conflict with the general language employed by the court in the case of Dugan v. Gittings, 3 G. 138, 153, before cited, we adhere to the decision in Porter v. Askew, and are of opinion that the court prop- erly refused to examine into the validity of the original decree in that case." To the same effect is Vickers v. Tracey, 22 Md. 196, 199; Bull v. Pyle, 41 Md. 419, 422; see post, sec. 503, note 3. In Wylie v. Johnston, 29 Md. 298, 304, an order was passed vacating a decree, and requiring the defendants to file answers. This interlocutory order was not appealable, but could be reviewed on ap- peal from any final order in the cause. In Mahoney v. Mackubin, 54 Md. 268, 277, on appeal from an order of final ratification of an auditor's report in a mortgage fore- closure case, the court of appeals considered an order of the lower court passed on an ex parte petition, allowing a counsel fee for profes- sional services. Upon an appeal from a decree for sale in a proceeding for parti- tion, a previous order ratifying the commissioners' return may be re- viewed, although no appeal was taken therefrom, the order being merely interlocutory and a part of the proceedings preliminary to de- cree; Phelps v. Stewart, 17 Md. 231, 243; Stallings v. Stallings, 22 Md. 41, 45; Bull v. Pyle, 41 Md. 419, 422. In Barth v. Rosenfeld, 36 Md. 604, 616, a case where issues were sent to a law court for a jury trial, an appeal from the final decree was held to bring up for review a motion to quash the verdict of the jury. In Watkins v. Bevans, 6 Md. 489, 494, the principle of the statute was considered applicable to a case on appeal from the orphans' court. An order was passed directing a final account to be stated, and specifying the items to be charged to the executors. On appeal from the order of distribution the previous order directing an account, and all questions arising upon the account itself, were open for review. The court cited Miller v. Allison, 8 G. & J. 35- Similar cases are Wilhelm v. Caylor, 32 Md. 151, 161; Barton v. Higgins, 41 Md. 539, 546; Meakin v. Duvall, 43 Md. 372, 377-378; Tray- hern v. Nat. Mechanics' Bank, 57 Md. 59°, 596; Davis v. Gemmell, 73 Md. 530, 552, 554; see also Walsh v. Boyle, 30 Md. 263, 268-269; ReiflE v. Horst, 55 Md. 42, 45-46. 26 §329 Appeal. 402 Certain objections not reviewable on appeal unless exceptions are filed. §329. The Statutes.— Certain objections to the proceed- ing's in the lower court cannot be made in the court of appeals unless it appears by the record that exceptions, presenting the objections, were filed in the court below. There are two statutes making these provisions. The first is that "on an appeal from a court of equity, no objection to the competency of a witness, or the admissibility of evidence, or to the sufficiency of the averments of the bill or petition, or to any account stated and reported in said cause, shall be made in the court of appeals, unless it shall appear by the record that such objection was made by exceptions, filed in the court from which such appeal shall have been taken." 1 The second is that "no defendant to iCode, art. 5, sec. 34; this section embraces the following statutory- provisions: Act of 1825, ch. 117, sec. 2: "On an appeal to the court of ap- peals, from a decree of the court of chancery or any county court acting as a court of equity, in which an account or accounts may have been stated and reported to such court by its discretion, (sic), the appellant shall not be permitted to urge or insist upon any exception to any ac : count so reported, unless it shall appear by the record that such excep- tion was taken or made in the court from whose decree such appeal shall be made; and the court of appeals shall not reverse any decree, on any exception which shall not appear to have been taken or made as aforesaid, in the court from whose decree the appeal may be made." Act of 1832, ch. 302, sec. 5: "All objections to the competency of witnesses and the admissibility of evidence, and to the sufficiency of the averments of the bill or petition, shall be made by exceptions filed in the cause, and no point relating to the competency of witnesses or the admissibility of evidence, or sufficiency of the averments of the bill or petition shall be raised in such causes in the court of appeals, or noticed or determined or acted upon by the court of appeals, unless it shall plainly appear in the record that such point has been raised by exceptions as aforesaid." Code of i860, art. 5, sec. 26: "On an appeal from a court of equity, no objection to the competency of witnesses or the admissibility of evidence, or to the sufficiency of the averments of the bill or petition, shall be made in the court of appeals, unless it appear by the record that such objection has been made by exceptions filed in the court of equity." This provision of the code was amended by the act of 1861 ch. 33, which was incorporated, without change, into the present code,' art. 5, sec. 34; see Young v. Omohundro, 69 Md. 424, 428-429; Alex.' Ch. Pr. 195-197; post, sec. 335, note 4. 403 Appeal. §329-331 a suit in equity in which an appeal may be taken, shall make any objections to the jurisdiction of the court below, unless it shall appear by the record that such objection was made in said court." 2 The clauses of the first mentioned statute fall naturally into five divisions, viz. : i. The competency of witnesses. 2. The admissibility of evidence. 3. The sufficiency of the averments of the bill or petition. 4. Account stated and reported. 5. The exceptions. §330. The competency of witnesses. — The following- are instances of the application of this clause of the section: an objection was made in the court of appeals to the competency of a witness on the ground that he was an interested party. No exceptions were filed in the court below. If exceptions had been filed the objection would have prevailed, but in their ab- sence, the objection was too late. 1 An objection to the com- petency of a witness on the ground that his evidence would con- travene the provisions of the evidence act is unavailable in the court of appeals, in the absence of exceptions filed in the court below. 2 An administrator was a party to a suit and his testi- mony was inadmissible; but the exceptions were only to cer- tain questions and answers; this left a large part of his inad- missible testimony as evidence in the cause. 3 §331. Admissibility of evidence; purpose of the Statute; instances.- — It was the design of the legislature that all objections to the admissibility of evidence should be taken by exceptions 1 filed in the court below before the pas- 2 Code, art. 5, sec. 35; post, sec. 340. iCalwell v. Boyer, 8 G. & J. 136, H7- 2 Grand Order, &c, v. Merklin, 65 Md. 579. 583; see also Cross v. Cohen, 3 G. 257, 269; Billingslea v. Ward, 33 Md. 48, 53. 3 Dilley v. Love, 61 Md. 603, 607-608. Exceptions to the competency of witnesses or the admissibility of evidence, on appeals from the orphans' courts, need not be taken in the court below, but may be taken and insisted on in the court of ap- peals; Denison v. Denison, 35 Md. 361, 381. [§33i-] 1 See post, sec. 337- §331 Appeal. 404 sage of the decree, that the chancellor whilst decreeing might have them in view and that the opposite party might resort ta the appropriate means of obviating their effect. 2 The pro- hibition is that on appeal no objection shall be raised to the ad- missibility of the evidence unless exceptions are filed in the court below. 3 The statute does not require an exception to the want or insufficiency of the evidence, but to its admissibility. 4 The objection that certain testimony is hearsay must be made in the court below, and unless an exception is filed, cannot be considered in the court of appeals; 5 so also an objection that a witness was examined without any previous notice thereof be- ing given to the opposite party; 8 and an objection to the testi- mony of a witness, who, being a defendant, was examined un- der a commission without the previous order of the court. 7 Leading questions cannot be objected to in the court of ap- peals in the absence of exceptions filed below. 8 An ex parte certificate of a register of wills offered in evidence as proof that the personal estate of a testator was inadequate to the payment of his debts was treated as proof in the cause. 9 The objection to a deed that it was not stamped as required by law was not considered; 10 also that a copy of a mortgage lacked the seal of the court. 11 2 Fitzhugh v. McPherson, 9 G. & J. 51, 70. 3 Berrett v. Oliver, 7 G & J. 191, 202; compare Ringgold's case, 1 BL 5, 14-15- 4 Young v. Mackall, 4 Md. 362, 370; compare Freeny v. Freeny, 80 Md. 406, 409. 5 Key v. Knott, 9 G. & J. 342, 361. "Harwiood v. Jones, 10 G. & J. 404, 414, 418-419; see also Young v, Mackall, 4 Md. 362, 369-370. 7 Gardiner v. Hardey, 12 G & J. 365, 380. 8 Long v. Long, 9 Md. 348, 356. "Ashton v. Ashton, 35 Md. 496, 503. "Andrews v. Poe, 30 Md. 485, 486. "Mondell v. Shafer, 49 Md. 492, 493-494. For other instances see Windwart v. Allen, 13 Md. 196, 200; Union Bank v. Cochran, 7 G. & J. 138, 142; Luckett v. White, 10' G. & J. 480, 494; Fitzhugh v. McPherson, 9 G. & J. 51, 69; Lamdin v. Lam- din. 32 Md. unreported; Trump v. Baltzell, 3 Md. 295, 304; Young v. Omohundro, 69 Md. 424, 428, 430; Gray v. Veirs, 33 Md.' 18, 21-22- Ortwine v. Caskey, 43 Md. 134, 136. 405 Appeal. §332 §332. Effect of evidence not excepted to. — Parol evidence which may contradict or vary the terms of a written instrument should be excepted to in the court below. Unless exceptions are filed, the evidence, on appeal, is in the case for all purposes, although its effect is to render nugatory the es- tablished principle of law in regard to the effect of parol testi- mony upon written instruments. In the principal case upon this point, parol evidence was given to the effect that a lessor did not intend by a certain covenant in the lease to bind his assigns, and that the words "heirs and assigns" were for that purpose left out of the covenant. This evidence was admitted without exception in the court below, and, on appeal, was al- lowed to have the effect of making the covenant personal in its character, and not binding upon the heirs or assigns. 1 Other instances of the application of this rule are as follows: oral testimony to the effect that a party had purchased land at a sheriff's sale, admitted without exception, was allowed to prove title in the purchaser, notwithstanding the fact that sheriffs' sales are within the statute of frauds and must be evidenced by some memorandum in writing; 2 testimony offered to show that a deed was executed on a secret trust, the effect of which testimony was in opposition to the rules of evidence, was open for consideration in the court of appeals; 3 incompetent testi- mony as to a certain article in a written co-partnership agree- ment and its meaning, is competent evidence in the absence of exceptions. 4 1 Gibbs v. Gale, 7 Md. 76, 86-87; as stated in Sentman v. Gamble, 69 Md. 293, 304; it was contended that the facts thus proved by parol could have no influence upon the interpretation of the written covenant, be- cause to allow it would be to violate the established rule which prohib- its the introduction or parol evidence in such cases; and that although • it was too late to except to the admissibility of the evidence, yet the evidence itself should not be considered. But the court held that the evidence, being in the cause, must be allowed its full force. 2 Spencer v. Pearce, 10 G. & J. 294, 299; stated in Sentman v. Gamble, 69 Md. 293, 304. a Clagett v. Hall, 9 G. & J. 80, 92. 4 Trump v. Baltzell, 3 Ivtd. 295, 304; compare Lamb v. Taylor, 67 Md. 85, 94. But in Shreve v. Shreve, 43 Md. 382, 393, the rule was not fol- lowed; parol declarations of a testatrix after the execution of her will, as to its effect, and testimony as to the interpretation put upon it by §333-334 Appeal. 406 §333. Papers not strictly in evidence.— The statute applies only to evidence as such ; it presupposes that the par- ties will be fully aware of the evidence intended to be used against them, as where it is taken under a commission or or- der of court. 1 Thus where a petition was filed to vacate the enrolment of a decree, certain affidavits were filed in support of the petition, but without notice to the opposite party and without an order of court. They could not therefore be con- sidered at the hearing, and objection might be made to them in the court of appeals without exceptions below. 2 The proof of insolvency of a defendant was alleged to be in a short copy of writ of fieri facias with an entry of nulla bona thereon; as it did not appear when or how the paper was introduced into the case, an objection to its admissibility might be raised in the court of appeals, although no exceptions were filed in the court below. 3 §334. Sufficiency of the averments of the bill. — The statute provides that no objection shall be made "to the suffi- ciency of the averments of the bill or petition," unless it shall appear that such objection was made by exceptions filed in the court below. Hence the omission of a necessary averment in a bill or petition will not be open for consideration in the-court of appeals unless an exception be filed. 1 An objection that the relief sought by a petition should be sought by an original bill is evidently not within .the statute, as it is not an objection to the sufficiency of the averments. Hence no exceptions need be filed in such a case, the objection being one to the nature devisees and others, were offered in evidence by plaintiffs, and no exceptions were filed thereto. The only persons whose interests were antagonistic to the plaintiffs, were infants who were not represented by counsel at the hearing. "Under these circumstances," said the court, "it would be an unreasonable extension of the doctrine in Gibbs v. Gale, 7 Md. 76, to apply it to this case,'* and the testimony was there- fore not considered. JStockett v. Jones, 10 G. & J. 276, 279; see the instance in this case. 2 Gechter v. Gechter, 51 Md. 187, 189. 3 Eyler v. Crabbs, 2 Md. 137, 154; compare Brown v. Thomas, 46 Md. 636, 641. [§334-] ! Evans v. Iglehart, 6 G. & J. 171, 199; Thomas v. Doub, 1 Md 252, 327-328; Eyler v. Crabbs, 2 Md. 137, 154. 4 °7 Appeal. §334 of the proceeding. In demanding that exceptions be filed to the averments of the bill or petition, the law assumes that the remedy adopted is the appropriate one, but supposes that it may be defectively stated. 2 Where a bill is objectionable be- cause of insufficient averments and is properly excepted to, no decree can be passed, whatever be the proof in the case, 3 and evidence taken in support of that part of the case (it being upon a distinct and independent matter) is to be treated as evi- dence of a fact not in issue, and rejected. 4 But if the bill is bad, but the proof establishes the right of the plaintiffs, the defend- ants, in the absence ot exceptions, cannot urge the defect in the bill in the appellate court. 5 In such a case the question of variance is immaterial; the court will decree according to the proof, whether the allegata and probata correspond or not, 6 and without regard to the averments in the bill. 7 Objection was made to the averments of a bill in the court of appeals on the ground that it did not charge the defendant with notice of a certain deed; no exception having been filed in the lower court, the point was not open for consideration in the court of appeals. 8 Exceptions were filed to the sufficiency of the averments of a bill to charge the defendant with the receipt of a sum of money decreed to be paid by him; on appeal the question raised by the exception was open for review. 9 Where 2 Boteler v. Brookes, 7 G. & J. 143, 155-156; Boteler v. Beall, 7 G & J- 389, 398. 3 Berry v. Pierson, 1 G. 234, 246-247. 4 Berrett v. Oliver, 7 G. & J. 191, 201. 5 OHver v. Palmer, 11 G. & J. 426, 442; quoted in Schroeder v. Loeber, 75 Md. 195, 202-203; Thomas v. Doub, 1 Md. 252, 327. In Schroeder v. Loeber, 75 Md. 195, 202, it is said that in the absence of exceptions "it is no matter whether the averments of the bill cover the case proved in evidence or not; we are obliged to decree according to the matters established by the proof;" quoted in Loeber v. Schroeder, 76 Md. 347, 350. "Harwood v. Jones, 10 G. & J. 404, 419; quoted in Schroeder v. Loeber, 75 Md. 195, 202; and Loeber v. Schroeder, 76 Md. 347, 349; Balto., &c, Co. v. Pumphrey, 74 Md. 86, 113. 7 Schroeder v. Loeber, 75 Md. 195, 203-204; Loeber v. Schroeder, 76 Md. 347, 349- 8 0'Neill v. Cole, 4 Md. 107, 123. "Berry v. Pierson, 1 G. 234, 246-247. Other instances are found in McKaig v. Hebb, 42 Md. 227, 231; §334-335 Appeal. 408 no exceptions were filed as to the sufficiency of the averments to give the court below jurisdiction of the case, the court of ap- peals was precluded from entertaining the question. 10 §335. Account stated and reported; instances. — This clause originated in an act 1 which provided that on ap- peal to the court of appeals from a decree in a cause in which an account "may have been stated and reported to such court by its discretion,* the appellant shall not be permitted to urge or insist upon any exception" to the account, unless it appear by the record that such exception was taken in the court below; and that no decree should be reversed on any exception not made as aforesaid. Prior to this act any exception might have been taken to an account on hearing the appeal, although no intimation had been given in the court below of the defect. 3 Whether general exceptions had been taken below, or special exception's or no exceptions at all, the whole account might be gone into by exceptions in the court of appeals. 4 But under the statute the appellate court is prohibited from pass- ing upon an objection to an audit unless properly made in the Harwood v. Jones, io G. & J. 404, 419; Berrett v. Oliver, 7 G. & J. 191, 201-202; Thomas v. Doub, 1 Md. 252, 327-328; White v. Flannigain, 1 Md. 525, 550; Hitch v. Davis, 3 Md. Ch. 266, 275; Ashton v. Ashton, 35 Md. 496, 503; compare Ridgeway v. Toram, 2 Md. Ch. 303, 304, 307. 10 Estep v. Mackey, 52 Md. 592, 595-596. J Act 1825, ch. 117, sec. 2; see ante, sec. 329, note. 2 Probably an error for direction. 8 Alex. Ch. Pr. 195. 4 Ringgold v. Ringgold, 1 H. & G. 11, 67. The act deprived the appellant of the right to make new excep- tions in the court of appeals, but did not deny the right to the appellee; Alex. Ch. Pr. 195. The act continued in force until the adoption of the code of i860, from which it was omitted. This omission operated as a repeal; Mayor, &c, v. Groshon, 30 Md. 436, 443-444; and there was no provision of a similar nature in force until the passage of the act of 1861, ch. 33, which was virtually a re-enactment of the act of 1825, ch. 117, sec. 2; Anderson v. Tuck, 33 Md. 225, 234. This act repealed code, (i860), art. 5, sec. 26, (for which see ante, sec. 329, note), and re- enacted it with the amendment that no objection "to any account stated and reported in said cause" should be made in the court of appeals ex- cept by exceptions filed in the court below. This act is now sec. 34, of art. 5, of the code of 1888. It will be observed that the clause does not apply only to appellants. 409 Appeal. §335-336 court below. 5 Instances of the application of the statute are found in cases on appeal from orders finally ratifying audit- ors' accounts. In the absence of exceptions, no objection to the account can be raised. 6 . Thus an error in the calculation of interest is not open for review; 7 so where an objection was based upon the proof in the record, but no exceptions were taken; 3 similarly where an auditor's report was submitted by agreement, with a reservation of the right to except, but no exceptions were filed. 9 §336. Exceptions to this clause.— To the general rule there are, however, two classes of exceptions. One of these is that when accounts are stated to represent the views and claims of the parties to the cause, under their instructions, no exceptions are required by either party, and objections may still be taken in the court of appeals. Such an account, brought into the cause with other accounts presenting different views of the conflicting claims of parties, does not require ex- ceptions to be filed to it. 1 It was not necessary under the act of 1825 to file exceptions to an account in order to raise objections which were put in issue by the pleadings, and which did not depend upon the state of the accounts, although an auditor's account might be necessary to ascertain the extent of the respective claims. 2 The other exception is where the rights of the parties have been adjudicated by the court, and the auditor in stating his account merely exhibits a statement of those rights as adjudicated. Thus where the proceeds of sale of property were directed by the court to be applied in a 5 Young v. Omohundro, 69 Md. 424, 432; Stokes v. Detrick, 75 Md. 256, 267; and see the cases cited, post, sec. 337. 6 Citizens' Co. v. Wilson, 50 Md. 90, 91; see also Ashton v. Ashton, 35 Md. 496, 503; McCullough v. Pierce, 55 Md. 540, 545; Perkins v. Emory, 55 Md. 27, 38; Thomson's appeal, 15 Md. 268, 283-284. 7 Lyles v. Hatton, 6 G. & J. 122, 136. 8 OHver v. Palmer, 11 G. & J. 426, 445. "Ins. Co. v. Ins. Co., 10 Md. 517, 529. iAnderson v. Tuck, 33 Md. 225, 234. =Wells v. Beall, 2 G. & J. 458, 467. In Walter v. Foutz, 52 Md. 147, 152, and Dennis v. Dennis, 15 Md. 73, 150, the accounts were stated under orders of court which di- rected the auditor to state accounts from the evidence in the cause, §336-337 Appeal. 410 certain manner, and the auditor stated an account in conformity with the order, which account was finally ratified, the account was open for review on appeal, although no exceptions had been filed. Indeed, the court said that it would have been disrespectful to file exceptions to such an account, as all con- troversy had been settled by the order of court determining the manner in which the proceeds of sale should be applied. 8 §337. The exceptions. — As it is the design of the statute that the record should present to the appellate court the same question which the court below decided, 1 and as its purpose is to prevent surprise in raising points in the court of appeals not raised in the court below, 2 it must appear by the record that the point raised in the appellate court is the same point present- ed to the consideration of the court below. 3 The exception must therefore be sufficiently definite to apprise the opposite party of the particular objection made. 4 Thus the particular ground of the exception must be pointed out in an exception to an auditor's report, a general exception being insufficient. 5 under the instructions of the respective parties; the accounts were stated under this order, and upon appeal were open for review, a\- though no exceptions were filed in the court below. 3 Miller v. Allison, 8 G. & J. 35, 37-38; Reiff v. Horst, 55 Md. 42, 46. Thomson's Appeal, 15 Md. 268, 283, referring to the act of 1825, ch. 117,' sec. 2. 2 Cross v. Cohen, 3 G. 257, 271. 3 Gardiner v. Hardey, 12 G. & J. 365, 380; compare Cherbonnier v. Goodwin, 79 Md. 55, 61. 4 Young v. Mackall, 4 Md. 362, 370; Berrett v. Oliver, 7 G. & J. 191, 202; Lyles v. Hatton, 6 G. & J. 122, 136. 5 Darby v. Rouse, 75 Md. 26, 29, citing Scrivener v. Scrivener, 1 H. & J- 743, 748. In Darby v. Rouse, as stated in Stokes v. Detrick, 75 Md. 256, 267, the appellee claimed his statutory exemption of $100, and it was allowed by the auditor. The appellant filed an exception to this allow- ance, and in the court of appeals, for the first time, made the point that the appellee had not proved that he had no other property. It was the duty of the appellant to have supplied that proof in the court below in order to sustain his exceptions, and, not having done so, he was not al- lowed to stand upon the objection in the appellate court. 411 Appeal. §338 §338. Instances of exceptions.— If the objection be to the competency of a witness, the exception should point out the particular witness who is objected to; a 'general exception to the witnesses of the opposing party would be insufficient. 1 \\ here the testimony of a certain witness was taken under an agreement that the evidence should be subject to all exceptions on account of the incompetency of the witness the exception was held sufficient. 2 If the objection be to the admissibility of evidence the exception should state the particular evidence objected to; a general exception to the admissibility of the evidence is not sufficient. 3 The names of the witnesses should be given.* But the exception need not state the facts or legal arguments upon which the objection rests. 5 As the excep- tion brings before the court the whole question of admissibil- ity, the admissibility or the reverse is the point for the court to consider and not the sufficiency of the reasons assigned in argument. 6 All that is required is that the evidence objected to be plainly designated. Exceptions were filed to certain spec- ified evidence because it did not appear that it was taken after due notice; as the evidence was plainly designated the excep- tions were sufficient. 7 If the exceptions be to the sufficiency of the averments of the bill or petition, the exceptions should state the particular averment whose absence is suggested; an ex- ception that the allegations in the bill are not sufficient to entitle the complainant to recover is insufficient. 8 If the dp- J Berrett v. Oliver, 7 G. & J. 191, 202; Young v. Omohundro, 69 Md. 424,429. 2 Billingslea v. Ward, 33 Md. 48, 52-53. In Johnson v. Heald, 33 Md. 352, 373, stated in Dilley v. Love, 61 Md. 603, 607, the exception was to the whole testimony of a witness on the ground of incompetency. 3 Berre'tt v. Oliver, 7 G. & J. 191, 202; Young v. Omohundro, 69 Md. 424, 429. *Freeny v. Freeny, 80 Md. 406, 409-410. 5 Young v. Mackall, 4 Md. 362, 370; Stokes v. Detrick, 75 Md. 256, 267; Scanlon v. Walshe, 81 Md. 118, 133. "Gardiner v. Hardey, 12 G. & J. 365, 380; compare Young v. Mack- all, 4 Md. 362, 370; George v. Andrews, 60 Md. 26, 35. 7 Young v. Mackall, 4 Md. 362, 369-370. 8 Berrett v. Oliver, 7 G. & J. 191, 200-201; but in this case the bill was so equivocal in character that specific exceptions could not be re- quired. "Stokes v. Detrick, 75 Md. 256, 267; Young v. Omohundro, 69 Md. §338-339 Appeal. 412 jection be to any account stated and reported, the exception should point out the particular allowance objected to or the particular claim allowed or not allowed. It was the intention of the legislature to require an exact and definite statement of exceptions in the lower court, so that neither party could be taken by surprise on appeal. 9 Thus where an error in the computation of interest was made in an auditor's account and was objected to in the court of appeals, the exceptions were: "because the auditor allowed the defendants interest on the amount of their judgment; because he has allowed costs" (as set forth); these exceptions do not specifically point out the objection, and are insufficient. 10 Nor is an exception "that this exceptant is entitled to credits in addition to those given him in said accounts" sufficiently specific to be considered by the court of appeals. 11 §339. Filing the exceptions. — The section provides that no objection shall be made in the court of appeals "un- less it shall appear by the record that such objection was made by exceptions filed in the court from which such appeal shall have been taken." The exception must appear from the record to have been filed in the court below, and must be signed by a solicitor. 1 Where testimony was taken before a justice of the peace under the old practice, exceptions to the testimony of a witness were made before the justice, but were not regularly filed in the court, and could not be considered on appeal. The evidence was therefore before the court of appeals for consid- eration, even though it would have been excluded if excep- tions had been properly filed. 2 The design of the statute would be frustrated if objections suggested at the execution' of the commission and afterwards practically abandoned at the 424, 431-432; in this latter case an exception "for other and various reasons apparent on the face of said report," was held insufficient. 10 Lyles v. Hatton, 6 G. & J. 122, 136; compare Grove v. Todd, 45 Md. 252, 256. "Calvert v. Carter, 18 Md. 73, 90, m; stated in Young v. Omo- hundro, 69 Md. 424, 432. iSindall v. Campbell, 7 G. 66, 76; Cross v. Cohen, 3 G. 257, 271; Young v. Omohundro, 69 Md. 424, 429. 2 Cherry v. Stein, n Md. I, 19. 413 Appeal. §339-340 * hearing, might again be relied on in the court of appeals. 3 The same rule prevails in the present practice of taking testi- mony before an examiner; the exception to the competency of a witness or the admissibility of evidence must appear from the record to have been filed in court; the mere noting of an excep- tion by the examiner is not sufficient. 4 §340. Objections to the jurisdiction.— Prior to the act of 1841, ch. 163, an objection to the jurisdiction of a court of equity might be made in the appellate court, although the defendant had omitted to make any defense upon that ground in the court below; so that it frequently happened that parties who had meritorious claims, if prosecuted in the proper forum, lost them by having an exception to the jurisdiction made for the first time in the appellate court, when, if the objection: should be sustained, limitations or loss of evidence would be- fatal to a recovery upon being compelled to sue at law. The- act was intended to cure this evil. 1 The present form of the statute is that "No defendant to a suit in equity in which an appeal may be taken, shall make any objections to the jurisdic- tion of the court below, unless it shall appear by the record that such objection was made in said court." 2 The act does not apply to the lower court, nor require the defendant to object 3 Cross v. Cohen, 3 G. 257, 271 ; nor was a return of the justice of the peace that objections were furnished him to be filed in the cause, a com- pliance with the statute. 4 Grand Order, &c, v. Merklin, 65 Md. 579, 583; Young v. Omo- hundro, 69 Md. 424, 429; McBurney v. Raughley, 60 Md., unreported. 1 Gough v. Crane, 3 Md. Ch. 119, 135; see ante, sec. 97. In the dissenting opinion of Mason, J., in Pierson v. Trail, 1 Md. 142, 144, it was said that the purpose of the act was "to prevent the unnecessary accumulation of costs and to avoid surprise and delay in legal proceedings, by requiring defendants to disclose their defences in the court below." In Allen v. Pullman Co., 139 U. S. 658, 662, it was held that when the supreme court of the United States finds on examining the proofs, nothing which makes a proper case for equity, it will recognize the fact, and give it effect, though not raised by the pleadings nor sug- gested by the counsel; see also Tyler v. Savage, 143 U. S. 79, 97. 2 Code, art. 5, sec. 35; this section is exactly the same as the cor- responding section in the code of i860, art. 5, sec. 27, and is in sub- stance the same as the act of 1841, ch. 163. §340 Appeal. 414 to the jurisdiction at any particular stage of the cause. 3 It applies to defendants only; hence objections to the jurisdic- tion may be made in the court of appeals by parties other than defendants, although it does not appear that the objection was made in the court below. 4 By an objection to the jurisdiction of the court below in the sense of the statute, is meant an ob- jection that the plaintiff's proceedings should have been in some other court. It does not mean an objection by the defendant that upon the pleadings and proof, or otherwise, the plaintiff is not entitled to recover. 5 The objection must be specially taken by exception in the lower court; an objection orally taken in the argument in the court below, and passed upon in 3 Gough v. Crane, 3 Md. Ch. 119, 135; Dunnock v. Dunnock, 3 Md. Ch. 140, 149. 4 Pierson v. Trail, 1 Md. 142, 143; in this case a trustee in insolvency- applied to a court of equity to distribute the funds in his hands; notice to creditors was given and the appellant and others filed claims. Upon exceptions, the appellant's claim was rejected, whereupon he appealed, and urged that the court below had no jurisdiction over the subject-matter and that all the proceedings were void; the trustee in- sisted that as the objection had not been made below it could not avail. But the court held that the appellant was not a defendant and that the act did not apply to him, and that he could make the objection for the first time in the appellate court. In the dissenting opinion of Mason, J., in this case, (pp. 144- 145,) it is said; "The only reason why the provisions of the law were confined in terms to defendants and not to plaintiffs must grow out of the fact that the legislature never could have supposed that a party, after he had selected the forum for the adjudication of a case, would afterwards be permitted, even if he desired to do so, to repudiate its jurisdiction and powers; while a defendant, who had no agency in the institution of the suit, should not be deemed to have acquiesced in the illegal assumption of jurisdiction by the court, unless he failed to make the objection while the cause was pending before the inferior tribunal." In Wicks v. Westcott, 59 Md. 270, 279-280, it is said that the section is "applicable only to defendants in a regular chancery pro- ceeding, who, having been brought in and submitted to the jurisdiction without question, will not be permitted to question the jurisdiction on appeal." 5 Beall v. Hilliary, 1 Md. 186, 197. In Shryock v. Morris, 75 Md. 72, 76-77, it was said: "Exception to the jurisdiction, whether taken by demurrer, plea, answer or by way of special exception to the sufficiency of the averments of the bill, under our practice, do not dispute the rights of the plaintiff in the sub- ject-matter of the suit, but simply asserts either (1st.) that such sub- 415 Appeal. §340-341 the opinion of the court, set out in the record, does not gratify the requirements of the act. 6 The act has been applied in numerous cases, in which the court of appeals has refused to consider objections to the jurisdiction of the court below, be- cause it did not appear by the record that the objection was made in said court. 7 Appeal bonds. §341. Statutory provisions applicable in equity cases only. — It is provided by the code that no appeal from any decree or order shall stay the execution or suspend the operation of such decree or order, unless the party praying the appeal shall give bond with security to indemnify the other party or parties from all loss or injury which said party or parties may sustain by reason of such appeal and the staying the execution or operation of such decree or order. 1 An im- portant provision contained in an act of 1890 is that if, in its discretion, the court in which the proceedings are pending shall decide that the case is not a proper one for a stay, the ject-matter is not the object of cognizance in a court of equity; or (2nd.) that a court of equity is not the proper court to take cognizance of such rights." 6 Hubbard v. Jarrell, 23 Md. 66, 80-81; Melvin v. Aldridge, 81 Md. 650, 657. T Farmers' Bank v. Wayman, 5 G. 336, 356; O'Neill v. Cole, 4 Md. 107, 123; Teackle v. Gibson, 8 Md. 70, 84; Knight v. Brawner, 14 Md. 1, 6; stated in Edes v. Garey, 46 Md. 24, 36; Bratt v. Bratt, 21 Md. 578, 583; Gough v. Manning, 26 Md. 347, 361; Ashton v. Ashton, 35 Md. 496, 502-503; Laeber v. Langhor, 45 Md. 477, 482-483; Estep v. Mackey, 52 Md. 592, 596; Wicks v. Westcott, 59 Md: 270, 279-280; Chase v. Winans, 59 Md. 475, 480-481; Biddinger v. Wiland, 67 Md. 359, 363; Cherbonnier v. Goodwin, 79 Md. 55, 61 ; Snowden v. Reid, 67 Md. 130, 135; Gittings v. Worthington, 67 Md. 139, 145; Williams v. Lee, 47 Md. 321. 324- *Act of 1890, ch. 32, amending code, art. 5, sec. 27, the provisions of which applied only to "orders;" final "decrees" being provided for in the code of 1888, by art. 5, sec. 51. The provisions of the code of 1888, art. 5, sec. 27, are the same as those of the code of i860, art. 5, sec. 23; which latter is a transcript in some particulars of the act of 1853, ch. 374; Northern Central Co. v. Canton Co., 24 Md. 500, 506; and must receive the same construction as the pre-existing statutes; Glenn v. Davis, 35 Md. 208, 220; compare Blondheim v. Moore, 11 Md. 365, 371-372. Upon the general subject, §341 Appeal. 416 court may pass an order that the decree or order appeal- ed from shall not be stayed or only so far, or on such terms, as the court shall therein direct. 2 The party praying the appeal* must give bond with security 4 to indemnify the other party or parties from all loss or injury which said party or parties may sustain by reason of the appeal and the staying of the execution or operation of the decree or order; such bond to be approved by the judge 5 or clerk of the court where the proceedings are pending, and the penalty to be fixed by the court. 6 see Ringgold's case, I Bl. 5, 15-16, 20; McKim v. Thompson. 1 Bl. 150, 173; Alex. Ch. Pr. 188-190. ' By code, art. 5, sec. 28, it is in substance provided that if a party intends on appeal from a final decree or order, to dispute any previous order, and desires to stay the operation of such order, he shall state his intention to dispute the same, in writing, and shall give bond in such penalty as the court may prescribe, with security, to be approved by the court or the clerk, to indemnify the other party from all loss and in- jury, which such party may sustain by reason of the staying of the operation of such order. Compare Lee v. Pindle, 11 G. & J. 362, 364; Dugan v. Gittings, 3 G. 138, 154. 2 Act 1890, ch. 32. The provision is in full as follows: "Provided, however, that if in its discretion the court in which such proceedings are pending shall decide that the case is not a proper one for such stay, such court may pass an order upon such terms (as to duration, keeping an account, giving security, &c), as to it may seem fit, directing that the decree or order appealed from shall not be stayed by such appeal, or only so far or on such terms as the court shall therein direct." Compare this provision with that in the act of 1845, ch. 367, which gave the right of appeal in certain cases, and declared that ap- peals under the act should not delay the execution of the decree or or- der, unless the court passing the same should so direct, and bond be given. Under this act, an appeal and bond did not, independently of the order of the court, delay the execution of the order or decree ap- pealed from; Williams v. Savage Mnfg. Co., 1 Md. Ch. 306, 324-325, 327-328. • 3 The section provided that "the party praying the appeal" must give bond; under sec. 51, relating to appeals from both law and equity courts, the provision is that "unless the person against whom such judgment or decree is rendered, &c, or some one on his behalf," shall enter into bond. 4 The word ''security" here being in the singular number, makes a different provision from sec. 51, which provides for "sufficient securi- ties;' - post, sec. 342. f Blondheim v. Moore, 11 Md. 365, 372; Mayor, &c, v. B. & O. R. Co., 21 Md. 50, 81. 6 The clause in reference to the penalty first appeared in the act of 1890, ch. 32. 4 17 Appeal. §342 §342. Statutory provisions applicable at law and in equity. — Another provision 1 of the code relating to the staying of execution by bond in case of an appeal is applicable both to courts of law and equity. It provides in substance that no execution upon any judgment or decree 2 in any court of law or equity shall be stayed or delayed unless the person against whom such judgment or decree shall be rendered or passed, 3 or some other person in his behalf, 4 shall immediately" upon praying an appeal enter into bond with sufficient securi- iCode, art. 5, sec. 51; code of i860, art. 5, sec. 31; Harris v. Register, 70 Md. 109, 115; see 2 Poe, PI. & Pr. sec. 651, for the practice in cases at law. The power of courts of chancery in Maryland to take appeal bonds to stay the operation of the order appealed from without any statutory enactment conferring that authority has never been doubted; Fullerton v. Miller, 22 Md. 1, 7-8; Thompson v. McKim, 6 H. & j! 302, 331, 334; estate of Rachel Colvin, 3 Md. Ch. 278, 304; Smith v. Dorsey, 6 H. & J. 261. In Thompson v. McKim, 6 H. & J. 302, 333, decided in 1825, it was held that, pending an appeal, proceedings may be stayed either by order of the chancellor on application made to him for that purpose, or by a special order of the court of appeals on such terms as the circum- stances of the case may require; compare Ringgold's case, 1 Bl. 5, 15-16. The act of 1826, ch. 200, sec. 1, modified this rule. 2 In Fullerton v. Miller, 22 Md. 1, 7, it is said that the act of 1826, ch. 200, sec. 1, upon which this section of the code is based, embraced only final judgments and decrees, and the condition of the bond prescribed is adapted to the purpose designed of indemnifying the appellee for the delay of execution. In Eakle v. Smith, 24 Md. 339, 361, it is said that this section re- fers to judgments (or decrees) on which no execution has been issued. 3 The person entitled to have the execution stayed is "the party against whom such judgment or decree shall be rendered;" see McKim v. Mason, 3 Md. Ch. 186, 213; estate of Rachel Colvin, 3 Md. Ch. 278, 304. 4 Under sec. 27, the "party praying the appeal" must give bond. 5 In Eakle v. Smith, 24 Md. 339, 361, it is said: "The appeal per se operates no supersedeas whether execution be issued or not. The defendant who desires to protect himself from the effects of an execu- tion, if he would avoid all risk of delay, must file the bond immediately, for, until then, he is exposed to execution. On the other hand, if he is willing to incur that risk, or unable to give bond earlier, he may defer it till the last moment before execution is consummated, pro- vided he has appealed in time. The non-payment of the costs does not necessarily destroy the effect of the bond as a stay of execution." 27 §342 Appeal. 418 ties' in at least double the sum recovered by the judgment or decree, or in double the value of the matter or thing in con- troversy, which shall have been recovered or decreed. 7 The condition of the bond is prescribed, 8 and the bond may be ap- proved by the clerk or judge, 9 but no bond shall be approved and no execution shall be stayed or delayed by an appeal unless the appellant shall, upon praying an appeal, file in the case an affidavit that said appeal is not taken for delay. 10 The filing of the appeal bond stays execution. 11 It is also provided that the court shall have power to examine into and deter- mine on the sufficiency of the sureties to any bond, and may make such rules and orders for the justifying or proving the sufficiency of such sureties, and for requiring additional se- curity in any case as they may deem proper. 12 "The bond must be entered into by at least two sufficient securities; Harris v. Regester, 70 Md.109, 116, 118. 'Compare Ringgold's case, 1 Bl. 5, 23-24. 8 Code, art. 5, sec. 51. The construction of the words "prosecute with effect," in an appeal bond is that the appellant shall prosecute the appeal to a suc- cessful termination, or a reversal of the judgment; Karthaus v. Owings, 6 H. & J. 134, 138; it is an undertaking to reverse the decision of the lower court or satisfy the judgment of the court of appeals; Karthaus v. Owings, 2 G. & J. 430, 443. Compare Woods v. Fulton, 2 H. & G. 71, 78; Andrews v. Scotton, 2 Bl. 629, 669. 'Compare Ringgold's case, 1 Bl. 5, 24-25. 10 Code, art. 5, sec. 52. "Code, art. 5, sec. 53. 12 Code, art. 5, sec. 54; see Ringgold's case, 1 Bl. 5, 6-7, 25-28. In Barnum v. Raborg, 2 Md. Ch. 516, 527-528, after quoting from Ringgold's case, 1 Bl. 5, 27, it is said that the only question is whether the party who is successful in the inferior court has, in the sureties in the bond, a secure indemnity for the injury he may sustain by the appeal, and whether this appears by looking to the value of the estate of each surety, or by an aggregation of the whole worth of all, does not seem to be material. If the sureties in the bond taken collec- tively are sufficient, the bond is sufficient, and must be approved. Other provisions of art. 5, of the code, are: respecting the rejec- tion of the bond offered, and granting time for filing new bond, sec. 55; that no appeal bond shall be avoided for any matter of form, sec. 56; the bond of an appellant dying, pending the appeal, shall remain liable', sec. 57. 419 Appeal. §343-344 §343. Purpose of bond. — A bond is not a necessary in- cident of an appeal, and an appeal is perfectly valid without filing any bond. 1 It is only for the purpose of staying the execution or suspending the operation of an order or decree, pending the appeal, that bond is necessary. If no bond, or an improper bond 2 is given, the successful party in the court be- low may, notwithstanding the appeal, require the decree or order to be enforced. 3 §344. Staying the decree. — After an appeal is taken and an appeal bond executed and approved, no step in the cause can be taken in the lower court which, by any possible contingency, can prejudice the appellant. The effect of the appeal and bond is to suspend the operation of every part of the decree from which the appeal is taken, and the court has no power to enforce the same while the appeal is pending and undecided. 1 Everything is stayed and suspended, until judg- iHumphreys v. Slemons, 78 Md. 606, 608; Mayor, &c, v. B. & O. R. Co., 21 Md. 50, 82. An appeal does not of itself stay execution of the decree; Thompson v. McKim, 6 H. & J. 302, 333; Barnum v. Bar- num, 42 Md. 251, 294. 2 Ringgold's case, 1 Bl. 5, 25; compare the following cases at law: Johnson v. Goldsborough, 1 H. & J. 492, 500; Price v. Thomas, 4 Md. 514, 520; and Tucker v. State, 11 Md. 322, 331; see also McNiece v. Eliason, 78 Md. 168, 179. 3 Brendel v. Zion Church, 71 Md. 83, 85; McNiece v. Eliason, 78 Md. 168, 179; compare Price v. Thomas, 4 Md. 514, 520, a case at law. In Dugan v. Gittings, 3 G. 138, 154. it is said that in Lee v. Pin- die, 11 G. & J. 362, 364, it was held that the object of praying an appeal and filing an appeal bond under the act of 1830, ch. 185, sec. 1, upon which the present statute is in part based, was not to effect an im- mediate removal of the case to the court of appeals, but that it merely suspended the execution of the decree. [§344.] iHall v. Jack, 32 Md. 253, 265-266; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 267, 270. In Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 267, 270, an order distributing a fund among a certain class of creditors and excluding others was appealed from by one of the parties whose claim had been ad- mitted to a dividend, but those excluded did not appeal; it was held that after appeal and bond the court could not order the dividend allowed to one of the creditors, not appealing, to be paid to him; compare Cum- berland Co. v. Jeffries, 27 Md. 526, 535. §344-345 Appeal. 42Q ment shall be pronounced by the appellate tribunal. 2 But while nothing can be done in the lower court which may pre- judice the rights of the appellant, yet further proceedings may be had upon other matters in the case. Thus, where there are several defendants, and an appeal, with bond, is taken by one of them, the case may proceed against those who do not appeal. 3 Nor does an appeal necessarily stay proceedings in reference to rights not passed upon or affected by the decree appealed from, but only the rights decided by it. 4 §345. Miscellaneous. — The responsibility under the bond is directly upon the bondsmen, without the necessity of first ascertaining the loss or injury by suit against the appel- lant. 1 If the bond is not properly drawn in any respect, the court may compel the execution of one in due form. 2 The bond speaks from the time of its filing and approval, and not from the day of its date. 3 The damages are all loss or injury- coming within the terms of the condition of the bond which have resulted by reason of the appeal, at least to the time of suit brought.* 2 Blondheim v. Moore, n Md. 365, 371-372; Northern Central Co. v. Canton Co., 24 Md. 500, 506; in these cases the appeal was from orders granting injunctions, the result of the appeal and giving bond being that the operation of the injunction ceased; compare Gelston v. Sig- mund, 27 Md. 345, 352; similarly in Everett v. State, 28 Md. 190, 205- 206; Glenn v. Davis, 35 Md. 20S, 220; McKim v. Odom, 3 Bl. 407, 413; Hamilton v. State, 32 Md. 348, 353; see post, sec. 609. 3 Hall v. Jack, 32 Md. 253, 261, 266. 4 Barnum v. Barnum, 42 Md. 251, 294; in this case testimony was taken, pending the appeal, in regard to questions reserved by the de- cree for future adjudication. x McLuckie v. Williams, 68 Md. 262, 265. 2 Fullerton v. Miller, 22 Md. I, 9; in this case the bond was not so drawn as to cover the damages sustained by reason of the appeal. 3 Jenkins v. Hay, 28 Md. 547, 559. 4 Jenkins v. Hay, 28 Md. 547, 560, 563; Wood v. Fulton, 2 H. & G. 71, 78; see also Blondheim v. Moore, 11 Md. 365, 372; Mayor, &c, v. B. & O. R. Co., 21 Md. 50, 81. 421 Appeal. §346 Remand without affirmance or reversal. §346. The statute. — Before the passage of the act of 1832, ch. 302, sec. 6, 1 the court of appeals was obliged, from the nature of its jurisdiction, either to affirm or reverse in whole or in part the decrees from which appeals had been taken. The act conferred the right to remand a cause to the court below without affirmance or reversal, in cases where justice may require such a course to be pursued. It in effect confers upon the appellate court the same right over a case before it that is possessed by courts of original jurisdic- tion, to cause the passage of a final decree to be deferred until complete justice may be done and the whole litigation may be settled. 2 1 Now code, art. 5, sec. 36. 2 See the arguments in Campbell v. Lowe, 9 Md. 500, 505, and Wil- liams v. Banks, 19 Md. 524, 525; and compare Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 517, 528; Postal Co. v. Snowden, 68 Md. 118, 121; Alex. Ch. Pr. 197-198. The code provision is as follows: code, art. 5, sec. 36: "If it shall appear or be shown to the court of appeals that the substantial merits of a cause will not be determined by the reversing or affirming of any decree or order that may have been passed by a court of equity," "or that the purposes of justice will be advanced by permitting fur- ther proceedings in the cause, either through amendment of any of the pleadings or the introduction of further evidence, making additional parties, or otherwise," "then the court of appeals, instead of passing a final decree or order, shall order the cause to be remanded to the court from whose de- cision the appeal was taken," "and thereupon such further proceedings shall there be had by amendment of pleadings, or further testimony to be taken, or other- wise, as shall be necessary for determining the cause upon its merits," "as if no appeal had been taken in the cause, and the decree or order appealed from, had not been passed, save only that the order or decree passed by the court of appeals shall be conclusive as to the points finally decided thereby." "And it shall be the duty of the court of appeals, in its order re- manding the cause, to express the reasons for the remanding, and also to determine and declare the opinion of the court on all points which may have been made before the said court, or which may be presented by the record." §347 Appeal. 422 §347. For what purposes a remand will be ordered. — In order to authorize the court to remand a cause with- out affirmance or reversal it must appear from the record that the ends of justice will be promoted by further proceedings. 1 Where the want of allegations in the pleadings, lack of exhib- its or parties, or other circumstances, prevent the court of appeals from finally determining upon the merits of the cause, it is a proper case for a remand under the act. But the court will not remand a case where an entirely new bill would have to be framed with new allegations and new parties, 2 or where if the case were remanded and amendments made the bill would be repugnant and inconsistent in its several parts. 3 Whether or not justice requires that a cause should be re- manded seems to be a proper subject of argument by counsel.* If the requirements are present, the court, in the words of the statute, shall order the remand, and the cause must be remanded. 5 'General Ins. Co. v. U. S. Ins. Co., 10 Md. 517, 528; State v. Cowen, 84 Md. — . 2 Benscotter v. Green, 60 Md. 327, 333. 3 McElderry v. Shipley, 2 Md. 25, 37; in the following other cases the court did not consider that a remand would be proper; Warnick v. Michael, 11 G. & J. 153, 159; General Ins. Co. v. U. S. Ins. Co., 10 Md. 517, 528-529; Paine v. France, 26 Md. 46, 47; Lenderking v. Rosenthal, 63 Md. 28, 38; Postal Tel. Co. v. Snowden, 68 Md. 118, 121. In McElderry v. Shipley, 2 Md. 25, 37, in order to enable the plaintiff to proceed de novo, the court reversed the decree below, dis- missing the bill, and dismissed it without prejudice, the costs to be paid by the plaintiff; see the precedents here. 4 As in Campbell v. Lowe, 9 Md. 500, 509; Williams v. Banks, 19 Md. 524, 527; Benscotter v. Green, 60 Md. 327, 331; Lenderking v. Rosen- thal, 63 Md. 28, 38. 5 Campbell v. Lowe, 9 Md. 500, 507, 511. In Clagett v. Hall, 9 G. & J. 80, 97, the court was satisfied that the reversal or affirmance of the decree passed below could not take place without the risk of doing injustice to one or the other of the par- ties, and therefore remanded the cause for the purpose of amending the pleadings, making other parties, stating other accounts, taking further testimony and for such other proceedings as should be necessary for determining the cause upon its merits; similarly in Buchanan v. Tor- rance, 11 G. & J. 342, 345; Kent v. Taneyhill, 6 G. & J. 1, 4. In Campbell v. Lowe, 9 Md. 500, 507, 511, the object of the bill was to have separate enjoyment of the respective interests of the par- ties in certain real estate. The complainant was held entitled to relief in one of two modes, by sale or partition, but as the case appeared on 4:23 Appeal. §348 §348. Remand for amendment, evidence, new parties, &C. — If it appear or is shown to the court of appeals that the purposes of justice will be advanced through amend- ment of any of the pleadings, 1 the cause will be remanded. A frequent instance is where the allegations in the pleadings do not authorize the granting of the relief to which a party is entitled upon the proof; in such a case the cause may be re- manded in order that the amendment may be made. Remand for the introduction of further evidence 2 is ordered in almost every variety of cases. Perhaps the most numerous instances the record, a proper decree could not be passed and the substantial merits could not be determined. The cause was therefore remanded under the statute. In Hawkins v. Chapman, 36 Md. 83, 100-102, it is said that in re- manding a cause the court must see that the purpose of justice will be advanced by permitting further proceedings in accordance with the principles of equity and policy of the law. In ordinary cases it would be proper to reman'd a cause for the purpose of making new parties; but in the case at bar, which was marked by extraordinary delay, in its commencement and prosecution, without any apparent sufficient cause, it would violate the best principles of public policy and jurispru- dence to remand it for further proceedings. See also Kent v. Taneyhill, 6 G. & J. 1, 4; Harris v. Harris, 6 G. & J. in, 115; Thomas v. Doub, 1 Md. 252, 276, 300, 305-306; Bowie v. Stonestreet, 6 Md. 418, 433-434; Williams v. Savage Mnfg. Co., 3 Md. Ch. 418, 423-424; Reese v. Bank of Commerce, 14 Md. 271, 285; Glenn v. Clark, S3 Md. 580, 607; Stanhope v. Dodge, 52 Md. 483, 494; Riley v. Carter, 76 Md. 581, 613; White v. Flannigain, I Md. 525, 551; Greer v. Baughman, 13 Md. 257, 278. a In Owings v. Baldwin, 8 G. 337, 357, the cause was remanded in order to enable the plaintiff to amend his bill so as to obtain certain rent to which he was entitled upon the proof, but for which the bill did ' not contain the appropriate averments and prayer. In White v. Flannigain, 1 Md. 525, 550, the court held that the plaintiff would be entitled to relief if the proper amendments were made in the bill; and the cause was remanded for that purpose. Other cases are Thomas v. Doub, 1 Md. 252, 329; Keerl v. Keerl, 28 Md. 157, 161; Smith v. Shaffer, 46 Md. 573, 579; Rust v. Chisolm, 57 Md. 376, 384; Judik v. Crane, 81 Md. 610, 620; Bayne v. State, 62 Md. 100, 109-110; Chaney v. Tipton, 11 G. & J. 253,-255; Jeffrey v. Flood, 70 Md. 42, 46; Shreve v. Shreve, 43 Md. 382, 403. 2 In Brown v. Thomas, 46 Md. 636, 641, the appeal was from an order ratifying an auditor's account, and rejecting the appellant's claim as filed. The court said that although the appellant had failed properly to present the claim, and had furnished no competent proof upon the §348 Appeal. 424 are where further evidence is necessary in order to supply some omission and enable the court to reach a decision in the case. The clause in the statute in regard to remand for the purpose of making additional parties was not found in the original act of uS?->, but was inserted in the codification of i860, perhaps from the provisions of the act of 1818, ch. 193, sec. 14. :l The statute provides for a remand for further pro- subject, yet there was enough in the record, of which notice could be taken, to justify the court in remanding the cause, without reversing or affirming the order appealed from, for further proceedings, under the statute. "That was the course pursued in respect to rights inform- ally and imperfectly appearing, in the cases of Darnall v. Hill, 12 G. & J. 388, and Eyler v. Crabbs, 2 Md. 154. and justice would seem to re- quire its adoption in this case. The appellant can then present her claim by petition and establish it by proof." In Johnson v. Robertson, 31 Md. 476, 491-492, the court held that a decree of sale was erroneous on account of the want of proof of due publication of a notice to non-residents. It being suggested in argu- ment that the notice was, in fact, duly published and that proof thereof • could be supplied, it was considered equitable that an opportunity should be afforded to supply further proof in support of the decree; and the cause was remanded to the end that further proof might be taken. See this case as stated in Johnson v. Robertson, 34 Md. 165, 170. Other cases are Buchanan v. Torrance, 11 G. & J. 342, 345; Buch- anan v. Lorman, 3 G. 51, 83; Watson v. Bane, 7 Md. 117, 120, 130; Den- nis v. Dennis, 15 Md. 73, 123. 149; Bull v. Pyle, 41 Md. 419, 425; Smith v. Towns'hend, 27 M'd. 368, 391; Gechter v. Gechter, 51 Md. 187, 190; Hagerty v. Mann, 56 Md. 522, 529; Shaw v. Devecmon, 81 Md. 215, 218; Hoffman v. Hoffman, 66 Md. 568, 575-576; Dilly v. Love, 61 Md. 603, 617; Darnall v. Hill, 12 G. & J. 388, 398; Eyler v. Crabbs. 2 Md. 137, 154; Eyler v. Hoover, 8 Md. 1, 4-5; Stump v. Henry, (1 Md. 201, 210; Shreve v. Shreve, 43 Md. 382, 403; Fulton v. Harmaii, 44 Md. 251, 267; White v. Flannigain, 1 Md. 525, 551 ; Berry v. Convention, 7 Md. 564, 581; Harris v. Harris, 6 G. 6k J. ill, 115; Marbury v. Stonestreet, 1 Md. 147, 152. 162. 3 In Iglehart v. Lee, 4 Md. Ch. 514, 520, the following opinion of the court of appeals appears: "In this case the bill of complaint does not bring before the court the necessary parties, and for this reason the de- cree must have been reversed and the hill dismissed, but for the act of 1818, ch. 193. Before a final decree the necessary parties must be made and have an opportunity of showing why the complainant should not obtain the relief which he seeks. We shall therefore remand the case." In Evans v. Iglehart, 6 G. & J. 171, 204, the court said that as all parlies interested in the subject-malter were not before the court, it was unable to make that full and final determination of the subjects in 425 Appeal. §348-350 ceedings either through amendment, or the introduction of further evidence, making additional parties, "or otherwise." This latter clause seems to cover any cases not embraced in the other clauses in the statute. 4 §349. Effect of the order of remand.— The effect of an order remanding a cause is to reinstate it in the court below as if the decree appealed from had not been passed; and the case stands as it did before the decree was entered. The de- cree below is entirely displaced by the decree of the court of appeals remanding the cause. The cause stands not only "as if no appeal had been taken in the cause," but as if "the decree or order appealed from had not been passed." 1 §350. Finality of the decision of the court of ap- peals. — In remanding the cause, the court of appeals gives such direction to the court below as in its opinion the merits controversy, which the nature of the case demanded; the case was therefore remanded. Other cases are Gregg v. Mayor, &c, 14 Md. 479, 506-507; Fitz- hugh v. McPherson, 9 G. & J. 51, 76; Ridgely v. Bond, 18 Md. 433, 451. 4 In Lyles v. Hatton, 6 G. & J. 122, 135, upon a bill against husband and wife, the wife never having answered, the court of appeals refused to pass any final decree, remanding the cause in order that the wife might have an opportunity to answer. In Perkins v. Emory, 55 Md. 27, 38, the court discovered an error in the auditor's account; but the decree could not be reversed, because no exception had been filed on account of the error; but as it was proper that the error should be corrected, the cause was remanded. Other instances of various kinds may be found in the following cases: Glenn v. Cockey, 16 Md. 446, 455; Treiber v. Lanahan, 23 Md. 116, 136; Thruston v. Minke, 32 Md. 571, 577; Bull v. Pyle, 41 Md. 419, 425; Popplein v. Foley, 61 Md. 381, 389; Girault v. Adams, 61 Md. 1, 13; Greer v. Baughman, 13 Md. 257, 278; Lynn v. Mt. Savage Co., 34 Md. 603, 638. 1 Johnson v. Robertson, 34 Md. 165, 172-173; Dennis v. Dennis, 15 Md. 73, 149; Lenderking v. Rosenthal, 63 Md. 28, 38; Postal Telegraph Cable Co. v. Snowden, 68 Md. 118, 121. The statutory provision is that "thereupon such further proceed- ings shall there be had by amendment of pleadings, or further testi- mony to be taken, or otherwise, as shall be necessary for determining the cause upon its merits, as if no appeal had been taken in the cause, and the decree or order appealed from had not been passed;" code, art. 5, sec. 36. §350 Appeal. 426 of the cause require. 1 By the terms of the act the decision of the court thus pronounced is made conclusive as to the points finally decided, and no error can be imputed to the court below if its subsequent proceedings are in conformity with that de- cision. 2 Under the statute it is the duty of the court of ap- peals to determine and decide all points raised or presented by the record; and in doing so the court merely complies with the directions and command of the legislature. 3 It is the duty of 1 Thomas v. Doub, I Md. 252, 325, 328; in this case the court of ap- peals in remanding the cause held that on amending his bill the plain- tiff would be entitled to the relief decreed by the lower court, if no other facts or circumstances be shown from those then appearing; see also Dennis v. Dennis, 15 Md. 73, 149; Williams v. Savage Mfg. Co., 3 Md. Ch. 418, 432. 2 Williams v. Banks, 19 Md. 22, 35; in this cause it was said upon an appeal after the cause had been remanded, "our first duty in disposing of the present appeal, is to ascertain what has been already finally decided." Compare Thomas v. Doub, I Md. 252, 326; Dodge v. Stan- hope, SS Md. 113, 114; Williams v. Banks, 11 Md. 198, 251; Collins v. Foley, 63 Md. 158, 166; Eyler v. Hoover, 8 Md. 1, 4. Similarly when a decree is reversed by the court of appeals and the cause is remanded in order that a decree may be passed in con- formity with the opinion of the court of appeals, and a decree in strict accordance therewith is passed, an appeal from such second decree can not be entertained. To allow an appeal in such case would be to allow a party to baffle and defeat the whole object and effect of the decree of the court of appeals; and such an appeal will be dismissed; Graff v. Barnum, 33 Md. 283, 286; Stonebraker v. Stonebraker, 34 Md. 444, 449; Young v. Frost, I Md. 377, 394; Mong v. Bell, 7 G. 244, 246; McClellan v. Crook, 7 G. 333, 341; Postal Co. v. Snowden, 68 Md. 118, 122-123. 3 Smith v. Shaffer, 50 Md. 132, 135; Williams v. Banks, 19 Md. 22, 35; Thomas v. Doub, 1 Md. 252, 325-326; in this latter case the chancellor overruled a demurrer, ordered the defendant to answer and directed an account to be taken, from which decree the defendant appealed; the court of appeals sustained the demurrer and pronounced a full opinion on the merits of the entire cause, and remanded the cause for further proceedings. It was argued on a second appeal that the decision on the first appeal only decided that the defendant should answer the amended bill, but the court held that all points were decided, as the court of appeals not only had the right, but it was their duty to deter- mine and decide all points presented by the record. In Evans v. Iglehart, 6 G. & J. 171, 183, the court said: "Al- though this case may be remanded to the court of chancery, that the proceedings may be amended, further evidence taken and proper par- ties made, yet it is incumbent upon this court to give their views of the various questions which were determined by the chancellor, have been 427 Appeal. §350-352 the court to express its opinion on the merits of the case, and to give directions to the court to which the record is re- manded.* §351. Costs upon remand.— By the established practice the court of appeal's in remanding causes under the act makes no disposition of the costs, 1 but all the costs of the cause, including those of' the appeal, remain subject to the final de- cree that may be passed. After the remand the costs of the appeal, as well as the costs in the court below, are proper sub- jects to be disposed of by the lower court; 2 but on appeal from a second decree in the court below, the whole question of costs may ultimately be decided by the appellate court. 3 Miscellaneous matters respecting appeals. §352. Parties to the suit for purposes of appeal. — The provision of the code is that an appeal shall be allowed "by any one or more of the persons parties to the suit." The statute, in which this clause first appeared, 1 was designed to extend and not to limit, the right of appeal; and is not con- strued as restricting the right in all cases to such persons only as are technical parties to the suit. Ordinarily none but par- ties to the cause can appeal, because, ordinarily, no others are bound or affected by the decree. A person claiming, by peti- tion, in a creditors' bill case, the ownership of property in con- discussed here, and must arise and control the rights of the parties in the future litigation in which they may be involved." And see White v. Flannigain, i Md. 525, 539-540; Berry v. Con- vention, 7 Md. 564, 581; Winchester v. Balto., &c, R. Co., 4 Md. 231, 239- In the case stated in Doub v. Mason, 5 Md. 614, the provisions of the statute do not appear to have been strictly followed. 4 Eyler v. Crabbs, 2 Md. 137, 155. 1 See also ante, sec. 282. The code reference is art. 5, sec. 24. 2 Smith v. Shaffer, 50 Md. 132, 137; Perkins v. Emory, 55 Md. 27, 38; Doub v. Mason, 5 Md. 613; the latter case citing Fitzhugh v. McPher- son, 9 G. & J. 51, and Clagett v. Hall, 9 G. & J. 80. In Berry v. Con- vention, 7 Md. 564, 581-582, however, the question of costs was decided. 3 As in Doub v. Mason, 5 Md. 614. [§352.] *Act of 1864, ch. 156; the primary purpose of which was to change the previous law in reference to summons and severance. §352-353 Appeal. 428 troversy, and praying to be made a party to the cause for the protection of his rights, is a party within the meaning of the statute. 2 A guardian ad litem is so far a party to the suit as to have the right of appeal on behalf of the infants ; otherwise they would be compelled, in the absence of a regularly ap- pointed guardian, to submit, however unjust or oppressive a decree might be. 3 353. Joinder of plaintiffs or co-defendants. — Prior to the act of 1864, ch. 156, it was held that from a joint decree against two or more defendants, one could not appeal alone without the proceeding known as summons and severance. 1 The act, as now incorporated in the code, provides that an ap- peal shall be allowed "with or without the assent or joinder of plaintiffs or co-defendants in such appeal." The intention of the act was to change the pre-existing law and to enable one or more of the parties to a suit to prosecute an appeal with- out joining the co-plaintiffs or co-defendants; and without the 2 Hall v. Jack, 32 Md. 253, 263; "being directly interested in the sub- ject-matter of the decree, and having filed his petition in the cause, praying to be permitted to intervene for the protection of his rights, he must be considered as a party within the meaning of the act." 3 Thomas v. Levering, 73 Md. 451, 461-462; the court also said: "It is true that it has been held by this court that a prochein ami is not a party to the suit within the meaning of the evidence acts; Trayhern v. Colburn, 63 Md. 99, 103; but it by no means follows that a next friend or guardian ad litem may not be a party to the suit as contemplated by the provisions of the code regulating appeals.' - Compare also Simms v. Lloyd, 58 Md. 477, 481 ; Tome v. King, 64 Md. 166, 179; Hoye v. Penn, 1 Bl. 28, 35;. McKim v. Mason, 3 Md. Ch. 186, 213; Warehime v. Graf, 83 Md. 98, ioij Beach, Eq. Pr. sees. 918, 923-925- iLovejoy v. Irelan, 17 Md. 525, 527. The code reference is art. 5, sec. 24. Summons and severance was a proceeding in the nature of a scire facias, issuing from the appellate court, by which those of the par- ties, against whom the decree below was rendered, who did not appeal, were notified to appear by a given day and assign errors in the judg- ment of the inferior court. If they failed to do so, the appellate court passed an order of severance, and entertained the appeal of the party appealing; Mottu v. Primrose, 23 Md. 482, 493-494, a case at law; Cum- berland Coal Co. v. Jeffries, 21 Md. 375, 381-382, a case at law; and the same case in 27 Md. 526, 535; see also Bouldin v. Bank of Commerce, 21 Md. 44, 48-49; compare Beach, Eq. Pr. sec. 921. 4:29 Appeal. §353-354 necessity of summons and severance; the act was designed to extend the right of appeal; 2 and in such cases the question cannot arise again. 3 §354. Interest of appellant. — It must appear from the record that the appellant has such an interest in the subject- matter of the suit as entitles him to appeal; otherwise the appeal will be dismissed. 1 If it affirmatively appears from the record that the appellant has no interest in the subject-matter of the appeal, a dismissal necessarily follows; thus on an appeal from a decree of foreclosure of mortgaged premises, where it appeared that the appellant, the mortgagor, had dis- posed of his equity of redemption in the property before the decree was passed, and therefore had no interest in the re- versal of the decree. 2 Similarly if it does not affirmatively 2 Hall v. Jack, 32 Md. 253, 263. 3 Cumberland Coal Co. v. Jeffries, 21 Md. 375, 381, a case at law. *In Rau v. Robertson, 58 Md. 506, 508, the appeal was dismissed upon the motion of the appellee; similarly in McColgan v. McLaughlin, 58- Md. 499, 501; Lurman v. Hubner, 75 Md. 268, 274; Isaac v. Emory, 64 Md. 333, 338. In McDonald v. Workingmen's Bldg. Assn., 60 Md. 589, 590, the appeal was apparently dismissed by the court sua sponte. Compare Trayhern v. Nat'l. Mechanics Bk., 57 Md. 590, 596; Wal- ter v. Second Nat. Bank, 56 Md. 138, 141; Polk v. Reynolds, 31 Md. 106, in; Beach, Eq. Pr. sees. 918-919. In Heider v. Bladen, 83 Md. 242, 24s, the appeal was taken by a purchaser of property at an auction sale. The court said that "he cer- tainly had a right to protect the rights which he had acquired by his purchase. The motion to dismiss is overruled." Compare Ware- hime v. Graf, 83 Md. 98, 101. Similarly on appeals from the orphans' court; Glenn v. Reid, 74 Md. 238, 240, and cases cited therein; Hoffar v. Stonestreet, 6 Md. 303, 304. Compare ante, sec. 98. 2 Rau v. Robertson, 58 Md. 506, 508; stated also in Schluderberg v. Robertson, 60 Md. 602, 604; compare McDonald v. Workingmen's Bldg. Assn., 60 Md. 589, 590; Walter v. Second Nat'l Bank, 56 Md. 138, 140-141; Lanahan v. Gahan, 37 Md. 105, 108; Farmers Bank v. Clarke, . 28 Md. 14s, 156; compare Isaac v. Emory, 64 Md. 333, 338. In Hall v. Jack, 32 Md. 253, 266, it was said that a person who is a mere stakeholder, liable for the payment of money which he is ordered to bring into court, cannot be heard to object to the order. In Simms v. Lloyd, 58 Md. 477, 481, the plaintiff, in a creditors' bill, who offered in evidence certain claims and judgments in support §354-355 Appeal. 430 appear from the record that the appellant has an interest in the suit, the appeal must be dismissed; thus on an appeal by some of the creditors of a mortgagor, the appeal was dismissed because there was no legally sufficient proof of their debts. 8 • §355. Appeal by trustee under decree. — A frequent instance of the application of the rule that the appellant, in order to sustain an appeal, must show an interest in the suit, is in the case of appeals by trustees. For convenience of treat- , ment, trustees are here considered in two classes in reference to the right of appeal; first, trustees appointed by decree to sell property; and, second, conventional trustees. In the ordi- nary case of a trustee appointed by decree to make sale of property, the sale is a transaction between the court and the purchaser; the court being the vendor, and the trustee merely the court's agent to carry its orders into effect. The trustee has not, by virtue of his office, any title to the property decreed to be sold, or any interest in it, or in the proceeds of sale; the parties interested are the owners of the land and the purchaser. of an allegation in the bill that the decedent was indebted to others as well as to the plaintiff, had no interest in those claims, and did not represent them in any such sense as justified him in appealing because of any supposed injury done to them. In Trayhern v. Nat'l. Mechanics Bk., 57 Md. 590, 595-596, the ap- pellant's solicitor entered her interest in the cause to his use; relying upon which as evidence that the appellant had no further interest in the case, the appellees moved to dismiss the appeal; whereupon the appellant's solicitor filed an affidavit in the court of appeals to the effect that the entry to his use was only to secure him a reasonable fee, and that in fact the appellant had a large interest in the cause. The motion to dismiss was overruled. In Brune v. Lanahan, 60 Md. 477, 515, it was said that "an attorney has no right in his own name and on his own motion to appeal from an order or judgment of the court below affecting the interests of his client." s Pannell v. Farmers Bank, 7 H. & J.. 202, 208; see the statement of this case, in Maccubbin v. Cromwell, 2 H. & G. 443, 460. In Pratt v. Johnson, 6 Md. 397, 399, it is said that although an appellant may have rights which have been injured by the decree below, yet if they are not shown by the record they can have no more influence than if they had no existence. In McColgan v. McLaughlin, 58 Md. 499, 501-502, the appellant's interest was stated so indefinitely that the appeal was dismissed. 431 Appeal. §355-356 Hence when a sale was made by such a trustee, and exceptions to the ratification were filed, and the court sustained the ex- ceptions, an appeal taken by the trustee was dismissed because of his lack of interest in the subject-matter of the appeal. 1 But such a trustee may appeal from an order affecting the allow- ance of his commissions fixed by a rule of court. 2 §356. Appeal by conventional trustee. — A conven- tional trustee, appointed to sell property, and distribute the proceeds among creditors, has the right of an appeal to the court of appeals in the following cases: 1 i. Whenever his 1 Lurman v. Hubner, 75 Md. 268, 273-274; followed in Haskie v. James, 75 Md. 568, 569; Warehime v. Graf, 83 Md. 98, 100; overruling Ellicott v. Ellicott, 6 G. & J. 35, 45) in which it had been held that such "a trustee, in his character as such, may for the benefit of those inter- ested in the fund, and who are aggrieved by an erroneous order for its payment or distribution, appeal." Compare Ellicott v. Warford, 4 Md. 80,86. In Stewart v. Codd, 58 Md. 86, the trustee was appointed by de- cree to sell certain mortgaged property, upon a portion of which a mechanics lien was claimed; the court below allowed the claim, and ordered that it be paid, from which order the trustee appealed. Upon a motion to dismiss the court said: "In a contest between creditors he has no interest and no right to intervene, and where the creditors them- selves have acquiesced in the decision, as said in Salmon v. Pierson, 8 Md. 299, the trustee cannot set up any interest to continue the litiga- tion here, after a decision below to which the parties really interested do not appear to have objected." Compare McHenry v. McVeigh, 56 Md. 578, 583; Balch v. Zent- meyer, 11 G. & J. 267, 283. The division of the money in the hands of the trustee is res inter alios acta so far as the trustee is concerned; Lurman v. Hubner, 75 Md. 268, 273, citing State v. Annan, 1 G. & J. 450, 462. 2 Gustav Bldg. Assn. v. Kratz, 55 Md. 394, 398. In White v. Malcolm, 15 Md. 529, 54°-54i, a sale was made by the attorney named in a mortgage, which sale was, upon exceptions, set aside by the court. The attorney appealed, and it was argued that as the appellant had no interest in the controversy "save only as trustee, agent or attorney for the mortgagees, he has no right of appeal." But the court said that the principle "that where a decision is made which injuriously affects the claim of an insolvent's trustee for commissions, he may appeal," was properly applicable to the case, and the appeal was sustained. [§356-] J Frey v. Shrewsbury Inst., 58 Md. 151, 154; McColgan v. McLaughlin, 58 Md. 499, 501; in the first cited case there was a con- §356-357 Appeal. 432 commissions or other allowances as trustee are affected by the order of the court below. 2 2. In all cases where the trustee is interested in the fund 'to be distributed, as a creditor. 3 3. In any case where the question of the increase or diminution of the whole fund in his hands as trustee is involved, and which increase or diminution would enure to the benefit or loss of all the creditors. But where there is a contest between cred- itors, or where the validity or amount of a particular claim pre- ferred by a creditor is the subject of dispute, the trustee, as such, has no interest in the controversy, and has no right to intervene and prolong the litigation by taking an appeal. 4 The creditors whose rights are affected are the proper persons to appeal, 5 and when they acquiesce in the decision, the trustee cannot set up any interest to prolong the litigation after a de- cision to which the parties really interested have not objected. 6 §357. Appeals by other fiduciary officers. — For similar reasons other fiduciary officers acting as agents of the court have been held not entitled to appeal, because of a lack of interest. Thus a receiver cannot appeal from an order of court removing him from his office, and directing him to turn over the assets; 1 nor can a permanent trustee in insolvency test among creditors as to the division of the trust funds; in such a case the trustee had no right to intervene or appeal ; but as the court thought the trustee acted in the discharge of what he supposed to be his duty, the costs were ordered to be paid out of the fund. 2 Compare White v. Malcolm, 13 Md. 529, 541; Salmon v. Pierson, 8 Md. 297, 299; Teackle v. Crosby, 14 Md. 14, 23; Mahoney v. Mackub- bin, 54 Md. 268, 276. Compare Brady v. Dilley, 27 Md. 570, 582. 3 In McColgan v. McLaughlin, 58 Md. 499, 501-502, the appellant trustee alleged himself to be a creditor, but so indefinitely that the court could not accept the averment as giving him such a position in the case as would entitle him to appeal. Compare Lurman v. Hubner, 75 Md. 268, 274, citing Ellicott v. Ellicott, 6 G. & J. 35; Salmon v. Pierson, 8 Md. 297, 299. *McColgan v. McLaughlin, 58 Md. 499, 501 ; compare Brown v. De- ford, 83 Md. 297, 310. 5 Frey v. Shrewsbury Savings Inst., 58 Md. 151, 154. •"Stewart v. Codd, 58 Md. 86, 87; Salmon v. Pierson, 8 Md. 297, 299. 1 Ellicott v. Warford, 4 Md. 80, 85; approved in Lurman v. Hubner, 75 Md. 268, 273; estate of Rachel Colvin, 3 Md. Ch. 278, 302-303. In estate of Rachel Colvin, 3 Md. Ch. 278, 303, it is said that the 433 Appeal. §357-358 appeal from an order overruling exceptions to the allowance of a claim in the auditor's account. 2 Cases involving the right of executors to appeal are stated in the note. 3 §358. Right of appeal is wholly statutory.— The right of appeal from a court of equity to the court of appeals is a statutory right and does not exist except where it is ex- pressly given. Unless an appeal in a given case is authorized by the provisions of the code, or by subsequent statutes, it cannot be entertained. 1 proceedings in a cause are res inter alios acta as to the receiver, except where his own accounts and allowances are concerned. 2 Salmon v. Pierson, 8 Md. 297, 299, in insolvency. But in McHenry v. McVeigh, 56 Md. 578, 583, a permanent trus- tee in insolvency "representing the creditors, and also personally inter- ested as the bonded trustee, with right to fair compensation for his services," had an undoubted right to appeal from an order setting aside a sale of real estate made by him as trustee. And in Teackle v. Crosby, 14 Md. 14, 22-24, it "was held that a permanent trustee in insolvency may appeal from an order erroneously rescinding his appointment, under the act of 1854, ch. 193, sec. 20, allowing an appeal by "any person interested." 3 In Eichelberger v. Hawthorne, 33 Md. 588, 597. the only appellant was the executor of an estate, who could have no personal interest in the matter, all parties interested having acquiesced in the decree. The de- cree below was affirmed. In Johns v. Caldwell, 60 Md. 259, 262, it was held that an admin- istrator pendente lite had no right of appeal from an order directing him to sell certain property, having no interest in that capacity in resisting the order. In Mackey v. Daniel, 59 Md. 484, 487, the court thought it not necessary to decide whether an executor was entitled to appeal from a decree construing his testator's will. But in Littig v. Hance, 81 Md. 416, 434, it was held that if the executor had the right to invoke the aid of the lower court in ascertaining the true meaning of the will, he had the right of appeal from the decree of the lower court. In Warehime v. Graf, 83 Md. 98, 100-101, it was held that execu- tors having a power of sale and a duty to apply the proceeds, may ap- peal from an order refusing to -confirm a sale made by them and di- recting a resale. iChappell v. Funk, 57 Md. 465, 478, per Alvey, J., dissenting; Dillon v. Conn. Ins. Co., 44 Md. 386, 394-395; BVth v. Rosenfeld, 36 Md. 604, 615. In Wylie v. Johnston, 29 Md. 298, 302-304, it is said that when the court of appeals undertakes to review the proceedings of inferior tri- 28 §359 Appeal. 434 §359. Appeal in cases of special statutory juris- diction. — When the court below acts not under its general equity jurisdiction, but in the exercise of a special authority conferred by statute, and the statute makes no provision for an appeal, the court of appeals cannot afford the right of appeal by construction. The presumption is that if the right of appeal had been intended to be given, there would have been express provision for it.' Whenever an inferior court exercises a special limited jurisdiction conferred by statute, no appeal from its decision in such cases lies to the court of appeals un- less expressly given by the statute. 1 bunals, the authority must be shown. The code very specifically de- fines the boundaries of the appellate jurisdiction. For the court to ex- tend it beyond that range would be to invade the domain of the legisla- tive department of government. In Burroughs v. Gaither, 66 Md. 171, 192, it is said: "There is no provision of any statute which allows an appeal from such an order, and this appeal must therefore be dismissed." In Ringgold's case, 1 Bl. 5, 17, it was said that there' is nothing which shows that an appeal was ever allowed from any of the decrees of the court of chancery, until it was expressly provided for by the legislature; compare pp. 7, 12. In estate of Rachel Colvin, 3 Md. Ch. 278, 301, it is said of an appeal in the case therein mentioned that the legislature had not "in terms or by any fair implication, given the right of appeal from an order like the one in question, and it would be legislation and not con- struction in the courts to do it." The legislature had the power to confer on the court of appeals the right to hear appeals in special cases; but such a law, to be con- stitutional, must have left the judicial functions of the court untram- melled; State v. Northern C. R. Co., 18 Md. 193, 210; Prout v. Berry, 2 G. 147, 149; Prout v. Berry, 12 G. & J. 285, 286; Calvert v. Williams, 10 Md. 478, 495; Dorsey v. Dorsey, 37 Md. 64, 76-79; Gover v. Hall, 3 H. & J. 43, 50; Lawrence v. Hicks, 8 G. & J. 386; compare McKim v. Thompson, 1 Bl. 150, 168-171. a Meyer v. Steuart, 48 Md. 423, 425; compare Brown v. P. W. & B. R. R. Co., 58 Md. 539, 544; and see the following cases at law; Mar- graff v. Cunningham, 57 Md. 585, 589; C. & P. R. Co. v. Pa. R. Co., 57 Md. 267, 274; WarAeld v. Latrobe, 46 Md. 123, 130; Lammott v. Mauls- by, 8 Md. 5, 8; Wilmington R. R. Co. v. Condon, 8 G. & J. 443, 448; Consumers Ice Co. v. State, 82 Md. 132, 141 ; Chappell v. Edmondson Ave. Co., 83 Md. 512, 514. In Williams v. Williams, 7 G. 302, 305, it was held that a proceed- ing under the statute providing for decrees in mortgage cases in Bal- timore city was not under a special and limited jurisdiction, and that 435 Appeal. §360 §360. Appeal a matter of right ; liberal construc- tion of Statutes. — In the cases provided by the statutes, a party is entitled to an appeal as a matter of right, which cannot be withheld. It is not necessary that the lower court should grant an appeal in order to authorize the appellant to take the case to the court of appeals; the appellant need only pursue the mode of prosecuting the appeal directed by the statutes, in order to be rectus in curia. The appeal lies ex debito jwstitice, and is not granted by the court below ex gratia} To the extent and under the limitations of the law, the right of appeal is not to be abridged by any narrow or technical, construction. 2 Very sound reasons are required to induce the court to refuse a party the benefit of an appeal ; and any interference with the right, wherever it exists, must be upon strong grounds and a clear manifestation on the part of the legislature. 3 A restric- tion upon the right of appeal is to be liberally construed in favor of the right; and especially should it be so construed when no apparent good is to be accomplished by a rigid or technical construction. 4 the above rule did not apply; similarly in White v. Malcolm, 15 Md. 529, 540. In Kinnear v. Lee, 28 Md. 488, 489-490, a case at law, after stating the general rule, the court said: "Where an inferior court assumes jurisdiction, or where an order on its face appears to be partly within and partly beyond the scope of the court's authority, an appeal lies, and the judgment thus unwarrantably pronounced must be reversed." 1 Thompson v. McKim, 6 H. & J. 302, 330. In McKim v. Thompson, 1 Bl. 150, 171-175, the chancellor re- fused an application of a party for leave to appeal from a decree, decid- ing that the decree was not final; on appeal in Thompson v. McKim, 6 H. & J. 302, 328, 330, the chancellor's ruling was reversed, the court holding that only the appellate court was entitled to decide whether or not an appeal would lie; and that the party had the right of appeal ex debito; and that it was not necessary that the chancellor should grant the appeal, nor was there any power vested in him to withhold it. 2 0'Hern v. Browning, 33 Md. 471, 475; it is a valuable right secured to parties, where they are vigilant, and not to be forfeited, unless they are guilty of such laches as the law will not sanction. Compare Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 267. 3 Williams v. Williams, 7 G. 302, 304; Ringgold's case, 1 Bl. 5, 15; in the first case (p. 306) the court said that it could not be assumed that the legislature constructively intended to abridge the right of ap- peal so fully recognized in chancery jurisdiction. 4 Mayor, &c, v. Weatherby, 52, Md. 442, 448. §361-362. Appeal. 436 §361. Agreement not to appeal.— An agreement of parties not to appeal, or to withdraw a pending appeal, if based upon a valid consideration, is binding and will be enforced in the appellate court by a dismissal of the appeal. 1 The proof of an agreement of this character may be inserted in the rec- ord 2 or may be presented to the appellate court by affidavits. 3 A motion to dismiss the appeal raises the question of the right of appeal under such an agreement. 4 §362. Decree below must be adverse. — Unless it appears from the record that the appellant has been injured by the decision of the court below, that decision will not be re- versed, even if erroneous as to other parties; because the appellant has no cause of complaint, his rights not being af- fected. 1 If there is no injury to the appellant, he cannot claim a reversal of the decree to correct an error. 2 Where a bill was dismissed by the lower court, and some of the defendants ap- pealed, claiming rights against their co-defendants, the court of appeal's held that the appellants were not aggrieved, and an a Ward v. Hollins, 14 Md. 158, 166; Lester v. Howard, 24 Md. 233, 236, a case at law; in these cases the agreement was to withdraw an ap- peal then pending. Compare Matthews v. Merrick, 4 Md. Ch. 364, 366. In Maokey v. Daniel, 59 Md. 484, 489, it was held that the waiver of the right of appeal from a decree is a waiver of the right to appeal from the ratification of an auditor's account in conformity with the decree. 2 As in Ward v. Hollins, 14 Md. 158, 165; Mackey v. Daniel, 59 Md. 484, 486. 3 As in Lester v. Howard, 24 Md. 233, 234. 4 Such motions were made in the above cited cases. [§362.] !Pratt v. Johnson, 6 Md. 397, 399; Ringgold's case, 1 Bl. 5, 12. The contrary rule stated in Chesapeake Bank v. McClellan, 1 Md. Ch. 328, 330, has not been followed. 2 Wampler v. Wolfinger, 13 Md. 337, 345; Eyler v. Hoover, 8 Md. 1, 5. In Devecmon v. Shaw, 70 Md. 219, 236-237, it was held that on a bill filed to obtain the construction of a will, a decision prematurely pronounced as to the rights of the parties upon the happening of cer- tain contingencies, will not be reversed as premature where the ap- pellants themselves sought to have the question decided both in the lower court and in the court of appeals. In Cumberland Coal Co. v. McKaig, 27 Md. 258, 267, the ap- pellant complained that the court below refused to allow certain evi- dence to be given orally or produced in writing; what the evidence was which was thus rejected was not stated in the record, so that the 437 Appeal. §362-363 appeal by them was erroneous, and should be dismissed, and that an appeal on their part was not necessary to save their rights; 3 and where a decree below expressly reserved the right of parties for future adjudication, the decision was not adverse to them and they were not aggrieved; their appeal was there- fore dismissed. 4 §363. No appeal from decree by consent. — Al- though the contrary has been held, 1 it is now settled that no appeal lies from a decree by consent. 2 The consent and de- cree, however, should appear to be one connected act, and the consent should be part of the decree itself or endorsed upon it. 8 The decree should correspond with the terms of consent and not be broader than the consent; otherwise the decree could not be said to be by consent. 4 Objection to an appeal from a court could determine upon its pertinency or materiality. Its rejec- tion was therefore no cause for reversal. 3 Hanson v. Worthington, 12 Md. 418, 443; Long v. Long, 62 Md. 33, 73; Gittings v. Worthington, 67 Md. 139, 148; in Teackle v. Gibson, 8 Md. 70, 86, the propriety of an appeal in such a case was referred to, but not decided. 4 Graff v. Barnum, 33 Md. 283, 286; McLaughlin v. Bamum, 31 Md. 425, 458-459- Compare also Simms v. Lloyd, 58 Md. 477, 482; Ellicott v. War- ford, 4 Md. 80, 86; Tome v. King, 64 Md. 166, 179; Eyler v. Hoover, 8 Md. 1, 5. As to immaterial technical objections on appeal, see Beach, Eq. Pr. sec. 975. iChesapeake Bank v. McClellan, 1 Md. Ch. 328, 330; in which the chancellor relied upon the case of Quynn v. State, 1 H. & J. 36, the principle of which is not now in force; Morgan v. Briscoe, 4 Md. 271, 272. Compare Beach, Eq. Pr. sec. 928. 2 Gable v. Williams, 59 Md. 46, 51; Williams v. Williams, 7 G. 302, 305; Ringgold's case, 1 Bl. 5, 9, 12; Ward v. Hollins, 14 Md. 158, 168, per Le Grand, C. J.; compare Berry v. Pierson, 1 G. 234, 248; Ware v. Richardson, 3 Md. 505, 559"56o; Johns v. Hodges, 62 Md. 525, 532-533- 8 Williams v. Williams, 7 G. 302, 305. 4 Gable v. Williams, 59 Md. 46, 51; Williams v. Williams, 7 G. 302, 306; in the latter case it is said: "It may be a question hew far the con- sent was given; or when given, whether the proceeding and the case was a proper subject for a decree." In Gable v. Williams, 59 Md. 46, 51, the decree was broader than was warranted by the agreement, and the appeal was therefore enter- tained; but as that portion of the decree in excess of the agreement was warranted by the pleadings and facts, the decree was affirmed. §363-364 Appeal. 438 decree by consent should apparently be taken at the final hearing, and not by motion to dismiss. 5 An appeal lies from a decree by consent taken under the provisions of the code of local laws relating to mortgages in Baltimore city. 6 §364. Recitals in decrees. — In matters merely formal, occurring in the progress of a cause, the recitals of facts in the body of the decree, in .the absence of all direct proof to the contrary, will be taken as sufficient evidence of the truth of such facts on appeal. 1 Thus where a decree stated that the cause stood ready for hearing according to the requirements of a rule of 'court, the recital of the fact was held to be sufficient proof, although it did not appear by the record that such was the case; and it was presumed that all the pre-requisites had been complied with. 2 Similarly where a decree recited that an order had been duly served on a party, the recital was held sufficient proof thereof; 3 so, too, the statement of the court below that the time allowed to answer a bill had expired, 1 and that a motion stood ready for hearing. 5 In a mechanics' lien case, the opinion of the court below stated that a notice was duly given, and that the sale and delivery of the lumber was fully shown ; as the record contained none of the proof taken, the statement of the judge as to what was proven before him was conclusive on appeal. 6 But this rule has no application to a question involving the jurisdiction of the court, in cases "Williams v. Williams, 7 G. 302, 305. 'Bernstein v. Hobelman, 70 Md. 29, 37; Williams v. Williams, 7 G. 302, 305; the consent here is only to dispense with the intermediate proceedings, in order to facilitate a decree; not that the decree shall be binding at all hazards; Robertson v. American Assn., 10 Md. 397, 406; see post, sec. 479. Johnson v. Robertson, 31 Md. 476, 490; compare Ringgold's case, 1 Bl. 5, 20. 2 Scott v. Scott, 17 Md. 78, 90; Rigden v. Martin, 6 H. & J. 403, 407. 3 Fitzhugh v. McPherson, 9 G. & J. 51, 71; Wampler v. Wolfinger, 13 Md. 337, 347. *Calwell v. Boyer, 8 G. & J. 136, 148; see also Long v. Long, 9 Md. 348, 356; Kunkel v. Spooner, 9 Md. 462, 469. 6 Heck v. Vollmer, 29 Md. 507, 510. •Smith v. Shaffer, 46 Md. 573, 578; Smith v. Shaffer, 50 Md. 132, 134- I3S- 439 Appeal. §364-365 where the fact of jurisdiction must affirmatively appear. Thus where a statute required publication in a certain manner against non-residents, the recital in the decree that the order of publication had been duly complied with, was not sufficient; proof that the law had been followed should have appeared in the record, in order to disclose the jurisdiction of the court to pass the decree. 7 §365. Appellate court determines whether an appeal lies. — It is the exclusive right and province of the appellate court to determine the bounds of its jurisdiction, and to decide in what cases an appeal does or does not lie from the decisions of inferior tribunals. 1 Whether or not an appeal lies in any given case is a question relating to the jurisdiction of the superior court, and is for it alone to determine. 2 To confide the decision of that question to the court of original jurisdiction, would be in many cases to deny all review by the appellate tribunal, 3 and suitors might be entirely deprived of the benefit of an appeal, by the authors of the errors by which they deem themselves aggrieved. 4 After an appeal has been taken it rests exclusively with the appellate court to determine its effect and operation; 5 thus it is for the court of appeals to determine whether the affidavits filed in' a case are sufficient to give the right of appeal. 6 'Johnson v. Robertson, 31 Md. 476, 490. l Ex parte Coston, 23 Md. 271, 272; Thompson v. McKim, 6 H. & J. 302, 328; Oliver v. Palmer, 11 G. & J. 136, 143; estate of Rachel Col- vin, 3 Md. Ch. 278, 304; Wylie v. Johnston, 29 Md. 298, 302. 2 Chesapeake Bank v. McClellan, 1 Md. Ch. 328, 330; in this case it is said that the court below -would not be justified in confirming a sale made under the authority of its decree from which an appeal had been taken and bond duly given. In Lester v. Howard, 24 Md. 233, 236, it is said that the court of appeals could not recognize the power of other tribunals to determine whether the right of appeal should be exercised or not, without sur- rendering its authority as a court of final resort. 3 Keighler v. Savage Mnfg. Co., 12 Md. 383, 413. *Ex parte Coston, 23 Md. 271, 272. B Glenn v. Davis, 35 Md. 208, 220. 'Oliver v. Palmer, 11 G. & J. 136, 143- After an appeal is taken all agreements of parties or counsel are within the control of the appellate court; Lester v. Howard, 24 Md. 233, 236. §366-367 Appeal. 440 §366. Divided court. — In order to reverse a decree of the lower court, a majority of the judges constituting the court of appeals must concur in the reversal; 1 hence, when the judges are equally divided in opinion upon the propriety of the order or decree appealed from, the affirmance of the decision below is the necessary consequence, because the appellant does not succeed in maintaining his motion to reverse. 2 The same rule applies to a motion to dismiss an appeal; in which case, if the court is divided in opinion, the motion fails. 3 In case of a divided court, the practice of the court of appeals is not to file opinions. Such opinions would determine nothing which would govern any future case, and would probably lead to mis- apprehension.* This practice is not contrary to the provision of the constitution in reference to the court of appeals, requiring that "in every case an opinion in writing shall be filed;" 6 that clause being applicable to cases where the opinion would de- cide future cases, and not where it would be a nullity. 6 §367. Deciding case although appeal dismissed. — In numerous cases in which appeals have been dismissed by the court of appeals, the court has expressed its opinion on the merits of the case, notwithstanding that the case was not properly before the court for decision. This has been done when the case has been fully argued upon the merits, and the expression of the court's views would probably avoid the neces- sity of another appeal, and would govern the further proceed- ings -, 1 especially when the counsel express a desire that in case 1 Hammond v. Ridgely, 5 H. & J. 245, 284. 2 Johns v. Johns, 20 Md. 58, 61; Gregg v. Mayor, &c, 14 Md. 479, 503; League v. State, 36 Md. 257, 265; compare Kolb v. Swann, 68 Md. 516, 520; Holmes v. Mitchell, 4 Md. 532, 554; Stokeley v. Gordon, 8 Md. 496, SIS- s Hatton v. Weems, 12 G. & J. 83, 102; Gregg v. Mayor, &c, 14 Md. 479, 503. *Groverman v. Spencer, 7 Md. 214, 215; Johns v. Johns, 20 Md. 58, 61 ; McKee v. McKee, 17 Md. 352, 358. Constitution, art. 4, sec. 15. 6 Johns v. Johns, 20 Md. 58, 61. [§367-] 1 Phillips v. Pearson, 27 Md. 242, 255; Gaines v. Lamkin, 82 Md. 129, 131; Humphreys v. Slemons, 78 Md. 606, 609; Tise v. Shaw, 68 Md. 1, 6; Burroughs v. Gaither, 66 Md. 171, 192; Dillon v. Conn. Ins. 441 Appeal. §367-368 of dismissal, the questions should nevertheless be determined; 2 but it is never done against the declared wish of either of the parties to the case. 3 §368. How an appeal is taken. — It is provided that an appeal 1 may be taken from a court of equity by application to the clerk ; and upon such application, if made within the time prescribed by law for taking such appeal, the clerk to whom the same is made shall enter a prayer of appeal upon his docket, and transmit a transcript of the record 2 to the clerk of the court of appeals, who enters the case upon his docket. 3 When an order for an appeal is given^ it is the duty of the clerk to make out a transcript of the record in due time. When completed, he may refuse to transmit it until the cost is paid by the appellant; but he cannot refuse to make it before being paid for it. 4 It Co., 44 Md. 386, 396; Hill v. Reifsnider, 39 Md. 439, 432; Wylie v. John- ston, 29 Md. 298, 304; Chenowith v. Smith, 29 Md. 18, 23; Keighler v. Savage Mfg. Co., 12 Md. 383, 415; Roberts v. Salisbury, 3 G. & J. 425, 433; Danels v. Taggart, 1 G. & J. 311, 322; and other cases. In Diamond Match Co. v. Taylor, 83 Md. 394, 405, the court said that as certain questions ''are not before us, we are without authority to express an opinion upon them." 2 As in Hazlehurst v. Morris, 28 Md. 67, 71-72; Darrington v. Rogers, 1 G. 403, 411-412; Richardson v. Jones, 3 G. & J. 163, 185; Griff ee v. Mann, 62 Md. 248, 253. Compare Wells v. Thomas, 72 Md. 26, 28; Margraff v. Cunning- ham, 57 Md. 585, 589, in which case, at law, no motion to dismiss being made, the court, in view of the importance of the questions involved, considered it proper to express its opinion on the merits of the case. 3 Stockett v. Goodman, 47 Md. 54, 58. 1 The provisions as to appeals are chiefly those contained in the "rules respecting appeals" made and prescribed by the judges of the court of appeals by authority of the constitution of 1867, art. 4, sec. 18. These rules were adopted in 1869; see 29 Md.; but were afterwards added to and modified. They have the force of law; Meloy v. Squires, 42 Md. 378, 381; Northern Central R. Co. v. Rutledge, 48 Md. 262, 263; Stephen v. Lewis, 62 Md. 229, 230. See in general Miller v. Murray, 71 Md. 61, 62-63. They were incorporated into the code of 1888, art. 5. 2 Code, art. 5, sec. 1; compare rule 15 of the rules respecting appeals; code, art. 5, sec. 37. Code, art. 5, sees. 32 and 33; rules 11 and 12 of the rules respect- ing appeals; provide for the contents of the transcript of the record. 3 Rule IS of the rules respecting appeals; code, art. 5, sec. 37- ^Walter v. Second Nat. Bank, 56 Md. 138, 139; Parsons v. Padgett, 65 §368-369 Appeal. 442 is the duty of the appellant to ascertain when the record is made out, and to pay for it in time for its transmission to the court of appeals before the expiration of the three months. It is not the duty of the clerk to notify the appellant or his counsel when the record is completed, and demand payment therefor. 5 §369. Time allowed for appeal. — All appeals allowed from decrees or orders of courts of equity shall be taken and entered within two months from the date of the decree or order appealed from, and not afterwards, 1 unless it shall be alleged on oath that such decree or order was obtained by fraud or mis- Md. 356, 357; see also Mince v. Tucker, 37 Md. 362, 364; O'Hern v. Browning. 33 Md. 471. 474. 5 Parsons v. Padgett, 65 Md. 356, 357-358. 1 Code, art. 5, sec. 30; rule 9 of the rules respecting appeals, as modi- fied by rule 27. Under the act of 1826, ch. 200, sec. 14, appeals were required to be prosecuted within nine months from the date of the decree; B. & O. R. R. Co. v. Canton Co., 70 Md. 405, 417. Under the code of i860, art. 5, sec. 20, the provision was "within nine months from the time of mak- ing such decree or order, and not afterwards, unless it shall be alleged on oath that such order was obtained by fraud or mistake;" Miller v. Murray, 71 Md. 61, 62-63; Stephen v. Little, 62 Md. 229, 230; Colegate D. Owings' case, 1 Bl. 370, 408-409; Alex. Ch. Pr. 182-183. Under rule 9 of the rules respecting appeals the period was also nine months; but by rule 27, in effect September 1, 1883, the period was reduced to two months. In Bennett v. Bennett, 5 G. 463, 466-467, an appeal was prayed more than nine months after the date of the decree. The chancellor had passed an order directing that the decree be set aside and an- nulled, unless cause to the contrary be shown. Afterwards he dis- missed the petition which induced a suspension of the decree. "While the decree was suspended by the chancellor's order, the right of ap- peal did not exist. The appeal then was taken within nine months, after the right is to be considered as having commenced." Followed in Herbert v. Rowles, 30 Md. 271, 281; distinguished in Jacobs v. Bealmear, 41 Md. 484, 486-487. The filing of a petition for the rehearing of a decree does not suspend the running of the time within which an appeal must be taken unless the decree is suspended by order of the court; Jacobs v. Beal- mear, 41 Md. 484, 486-487; contra in the federal courts; Aspen Co. v. Billings, 150 U. S. 31, 36. In Calvert v. Williams, 34 Md. 672, 673-674, it was held that in computing the time within which an appeal from a decree may be taken, the day of the date of the decree should be excluded. In Meyer 443 Appeal. §369 take, in which case the appeal shall be entered within two months after the time of the discovery of the fraud or mistake, and not afterwards. Under this latter clause the appeal is to be allowed, although taken after two months, if an oath is filed in the court below alleging that the decree was obtained through fraud or mistake. The mere allegation on oath is sufficient, without proof; and the right of appeal exists upon the allega- tion and oath, and is not a subject-matter of controversy be- tween the parties. The grounds or nature of the fraud or mistake need not be stated in the affidavit. The oath may be made by any person having knowledge of the fraud or mistake. 2 The allegation of fraud merely brings the case before the court , of appeals ; it opens no new question, and cannot present any- thing for review outside of the record as it was when the de- cree appealed from was before the court below. 3 The object v. Steuart, 48 Md. 423, 426, a final order was passed on August 14, 1876, and the appeal was entered on May 15, 1877; "as the appeal must be taken within nine months from the date of the order, by excluding the day of the date of the order, the appeal was entered one day too late;" citing Calvert v. Williams, 34 Md. 672, 673-674; Trustees v. Heise, 44 Md. 453, 476. After the time for appeal has expired the court will not enter- tain an appeal in an indirect mode; see Hitch v. Davis, 8 Md. 524, 529; Lefever v. Lefever, 6 Md. 472, 478. 2 OHver v. Palmer, n G. & J. 137, 143-146; this case was based upon the act of 1826, ch. 200, sec. 14. The same construction was given to the code of i860, art. 5, sec. 20; Ashton v. Ashton, 35 Md. 496, 502. In Contee v. Pratt, 9 Md. 67, 73, it was said that although the provisions of the act do not require the facts to be proved to authorize the appeal, they do, however, require that either fraud or mistake should be alleged. The mistake which will authorize an appeal "is not mere laches, as in this case. It must result from the act of the other party, or flow from an error of the chancellor by which the appellant was misled without any fault of his own.' - Other cases in which the act has been applied are United Lines Co. v. Stevens, 67 Md. 156, 158, in which "an officer of the appellant corporation made oath that the orders appealed from were obtained by fraud, and that the fraud was only discovered within two months before the appeal;" Bull v. Pyle, 41 Md. 419, 421-422; Herbert v. Rowles, 30 Md. 271, 281; Johnson v. Robertson, 31 Md. 476, 485. Com- pare Edwards v. Bruce, 8 Md. 387, 394; Redman v. Chance, 32 Md. 42, 53; Powhatan Co. v. Potomac Co., 36 Md. 238, 243; First Nat'l Bank v. Eccleston, 48 Md. 145, 156. 3 Ashton v. Ashton, 35 Md. 496, 502; Johnson v. Robertson, 31 Md. 476, 486. §369-370 Appeal. 444 of the affidavit is simply to entitle the appellant to have the proceedings reviewed in the same manner as if the appeal had been prosecuted within the time prescribed by law. 4 The re- quirement of the code is that all appeals shall be taken and entered within two months from the date of the decree; there- fore where a verbal order for an appeal was given to the clerk in due time, but the appeal was not actually entered by him until after the time limited by law, the appeal was dismissed, the ver- bal order having no effect. 5 The order for appeal must be ac- tually entered within two months from the date of the decree; and the filing of an appeal bond, in which it was alleged by way of recital that an appeal had been prayed, is not a compliance with the requirements of the code. 8 An order for an appeal need not necessarily be in writing, although such order is much safer than a verbal one. 7 §370. Transcript of the record. — It is provided that all transcripts of records, on appeals from courts of equity, shall be made and transmitted to the court of appeal's within three , months from the time of the appeal prayed; but, on appeals 4 Johnson v. Robertson, 31 Md. 476, 486. The section provides that the appeal shall be taken within two months after the time of the discovery of the fraud or mistake, and not afterwards. There was no similar provision in the act of 1826, but the court held that the appellant should be allowed the same time to appeal, after the discovery of the fraud or mistake, that all other persons had under the act. 5 Miller v. Murray, 71 Md. 61, 62-64, as stated in Humphreys v. Sle- mons, 78 Md. 606. 607-608; on page 64 of the former case it is said: "When an appeal is prayed in open court, and the clerk neglects to note it, the court will on motion order the record to be amended so as to speak the truth. When an application in writing is filed with the clerk, this application is considered as part of the record, as much so as a bill, or an answer, or a plea, or any other paper properly filed in due course. But if an application is made by word of mouth, and the appeal is not actually entered by the clerk, we are at a loss to see on what legal principle it could have effect." 6 Humphreys v. Slemons, 78 Md. 606, 607-609. 'Gaines v. Lamkin, 82 Md. 129, 131; in this case at law it is said that "where a mere verbal order for an appeal is given, not in open court, but after the actual session of the court is over, the entry of the appeal must be made within the time limited by the statute." Compare Con- tee v. Dawson, 2 Bl. 264, 305. 445 Appeal. §370 taken from a refusal to grant an injunction, the transcript shall be made and transmitted to the court of appeals forthwith after the appeal prayed. 1 It is further provided that no appeal shall be dismissed because the transcript shall not have been trans- mitted within the time prescribed, if it shall appear to the court of appeals that such delay was caused by the neglect, omission or inability of the clerk or appellee; but such neglect, omis- sion or inability shall riot be presumed, but must be shown by the appellant. 2 Where the clerk is not in default, a very strong case must be made out by the appellant to rebut the presump- tion of laches on his part. 3 The lower court may strike out the entry of appeal if the record is not sent to the court of appeals within the proper time. 4 - 1 Code, art. 5, sec. 31; rule 10 of the rules respecting appeals, as mod- ified by rule 27. Under the code of i860, art. 5, sec. 29, the transcript was re- quired to be transmitted within nine months after the appeal was en- tered; by the rule 10 above cited the time was reduced to six months; Meloy v. Squires, 42 Md. 378, 381 ; and by rule 27, to three months. Code, art. 5, sees. 40 and 41; rules 17 and 18 of the rules respect- ing appeals; provide for the transcript in cases of cross-appeals, or of more than one appeal in the same case from any decree or order; and when a case goes to the court of appeals more than once. As to omit- ting papers from the transcript under an agreement of counsel that the originals be laid before the court of appeals, see Love v. Dilley, 64 Md. 238, 248. 2 Code, art. 5,- sec. 38; rule 16 of the rules respecting appeals. The application of the rule is illustrated in the following cases: Walter v. Second Nat'l Bank, 56 Md. 138, 139-140; Garritee v. Pop- plein, 73 Md. 322, 324; Bixler v. Sellman, 77 Md. 494, 495; Parsons v. Padgett, 65 Md. 356, 357-358; Mince v. Tucker, 37 Md. 362. 363-264. Compare also Cochrane v. Little, 71 Md. 323, 329; Ewell v. Tay- lor, 45 Md. 573, 574-576; Glenn v. Chesapeake Bank, 3 Md. 475, 478- 479; Sample v. Motter, 5 Md. 368, 370. Prior to the adoption of the rule above stated, and under art. 5, sec. 29, of the code of i860, when an appeal was taken in time, the delay in the transmission of the record was presumptively the fault of the clerk and not of the appellant; Allender v. Sussan, 33 Md. 11, 14; Marsh v. Hand, 35 Md. 123, 126. The present rule throws upon the appellant the onus of showing that the fault lies with the clerk. The practice is to file affidavits in the court of appeals stating the facts in regard to the delay; Parsons v. Padgett, 65 Md. 356, 357; Northern Central R. R. Co. v. Rutledge, 48 Md. 262, 264; Willis v. Jones, 57 Md. 362, 366. See the cases at law cited in 2 Poe, PI. & Pr. sec. 823, note. 3 Ewell v. Taylor, 45 Md. 573, 575-576. Leadenham v. Nicholson, 1 H. & G. 267, 269-270, per Bland, Ch. f§438.] 1 Bennett v. Bennett, 5 G. 463, 467; Billingslea v. Baldwin, 23 Md. §438-439 Partition. 518 conform to the requirements of the act to direct descents. 2 The proceedings being statutory, a strict compliance with the act is necessary, and it should appear that the provisions of the act have been observed. 3 §439. Allegations Of the bill. — The statute provides that if the parties entitled to the intestate's estate cannot agree upon the division thereof, 1 or if any person entitled to any part be a minor, an application may be made to the court, 2 which shall appoint and issue a commission 3 of five discreet, sensible 85, 108, per Bowie, J.; Phelps v. Stewart, 17 Md. 231, 239; see also Tomlinson v. McKaig, 5 G. 256, 275. For the forms, see Carey's Forms, pages 596-614. 2 Phelps v. Stewart, 17 Md. 231, 239; "however the practice may have originated, the jurisdiction of the court of chancery, and county courts, as courts of equity, in cases of partition where the land is sit- uate in one county only, is too well established to be disturbed;" see the proceedings in this case. Where the land lay in different counties, proceedings could be taken in the court of chancery; Bennett v. Ben- nett, 5 G. 463, 467. In Bennett v. Bennett, 5 G. 463, 467, it was said that whether the proceedings be in the court of chancery or in a county court, the proceedings must in all respects be in conformity with the act, and in either case, the commission, &c, must be the same. 8 Stallings v. Stallings, 22 Md. 41, 46-47. In Hughes' case, 1 Bl. 46, 47, it was said that in so far as the act has prescribed the mode of proceeding, it must be followed; but in all other respects, the court must be governed by its established course of proceedings, in so far as it can be adapted to the statute. This case was the first case brought under the statute in the court of chancery. *In Hardy v. Summers, 10 G. & J. 316, 323, it was held that the act only gives power to the courts to divide when the parties entitled can- not agree; if a division had been previously made by the parties them- selves, the court had no authority to act; and its action would be a nullity. 2 Application should be "made to the circuit court for the county where the estate lies, or if the land lies in different counties, to the cir- cuit court for the county where the greater part of the land lies, or if the land lies in the city of Baltimore, then to the superior court or circuit court of said city"; code, art. 46, sec. 32. Compare ante, sec. 4. 3 In Hughes' case, 1 Bl. 46, 47, it is said that the commission awarded must in all cases exactly recite the petition, for the government of the commissioners in their proceedings; the form of commission and of commissioners' oath, &c, is given in full here. In Bennett v. Bennett, 5 G. 463, 467, the commission was er- 519 Partition. §439 men to be commissioners, 4 authorizing them or a majority of them to proceed as directed by the statute. 5 The bill must by its allegations bring the case under the provisions of the act in order to give the court jurisdiction. It must allege that the deceased died intestate of such an estate as is described by the act; and that the parties entitled thereto -cannot agree upon a division thereof, or that some of the parties from disa- bility are incapable of making a division ; and should pray for the issuance of a commission. 6 It is not necessary to allege that proceedings under the act would be for the benefit and advantage of the parties concerned. If the necessary allega- tions are made, the court acquires jurisdiction of the cause. 7 ' roneous in not requiring the commissioners to conform to the direc- tions of the act. See also Massey V. Massey, 4 H. & J. 141, 144, 148, where the oath of the commissioners was not annexed to the commis- sion, and where the return was not ratified by the court. 4 In Hughes' case, 1 Bl. 46, 47, it was said that the court would ex- pect the plaintiff to nominate the commissioners. 5 Code, art. 46, sec. 32; the thirty-eight subsequent sections- of this article of the code prescribe in detail the manner of proceeding. Sec- tion 64 provides for the fees of the commissioners and others; sec. 68 provides for the appointment of other commissioners in case of the death, refusal to act, &c, of the commissioners. 6 Chaney v. Tipton, 11 G. & J. 253, 255; but this latter prayer is not jurisdictional; Tomlinson v. McKaig, 5 G. 256, 276. Compare Stallings v. Stallings, 22 Md. 41, 45; Hughes' case, I Bl. 46, 47- 'Tomlinson v. McKaig, 5 G. 256, 275-276; in this latter case the bill averred that a person died intestate of lands held in fee simple by him, that they descended to his heirs at law who were particularly specified, two of whom were minors, and the bill prayed general relief and such other and further proceedings as might be necessary. These aver- ments gave the court jurisdiction, and other inappropriate averments and prayers contained in the bill were held immaterial. In Hughes' case, 1 Bl. 46, 47, it is said that it is indispensably nec- essary that the petition should state where or in what counties the lands of the intestate lie; the name of the widow, if living, and of the heirs whether adult or infant and where resident. If the bill is defective by reason of insufficient averments it need not be dismissed, but may be cured by amendment; Chaney v. Tipton, II G. & J. 253, 255; Chaney v. Tipton, 3 G. 327. 333-334; Roser v. Slade, 3 Md. Ch. 91, 93- §440 Partition. 52 §440. Proceeding's by the commissioners. — The com- missioners are to determine whether the estate will admit of being divided without injury and loss to all the parties en- titled, and to ascertain the value of the estate in money, taking into consideration any incumbrances. If, in the judgment of the commissioners, the estate can be divided without loss or injury to all parties entitled, then they shall divide and make partition of the same, fairly and equally in value, between all the parties interested, according to their several just propor- tions, 1 and allot to the several parties their respective shares. 2 But, if the estate cannot be divided equally and fairly between all the parties interested, according to their several propor- tions, then the commissioners have power to divide it into as many parts as it is susceptible of without loss and injury to all the parties entitled, and to ascertain the value of each part in money, subject to any incumbrance. 3 If the estate cannot be divided into as many parts as there are heirs, but exists in sep- arate parcels, or can be divided into parts less than the number of heirs, without loss or injury, then it shall be divided into as many parts as it is susceptible of, and each parcel shall be separately valued; then upon ratification of the commis- sioners' report to this effect, the person first entitled to election shall have the first choice of one of the parcels, and the next in order the second choice, and so on in regular succession of right until all the parts are taken or refused. 4 After making 1 Code, art. 46, sec. 38. In Kilgour v. Ashcom, 5 H. & J. 82, 83-84, it is said that it is the duty of the commissioners in dividing an estate to take into consid- eration all the advantages and disadvantages attending the respective parts; this is quoted in Mitchell v. Seipel, S3 Md. 251, 271, and the latter case is quoted in Claude v. Handy, 83 Md. 225, 238. 2 Code, art. 46, sec. 40. 3 Code, art. 46, sec. 39; see Johnson v. Hoover, 75 Md. 486, 489. In Cecil v. Dorsey, 1 Md. Ch. 223, 227-228, it was held that it is necessary that the return should state the value of the estate, and of each part thereof, in money, and should show that the notice required by law had been given; and also that the commission should author- ize the commissioners to take evidence. 4 Code, art. 46, sec. 41 ; as in Jenkins v. Simms, 45 Md. 532, 534. In Stallings v. Stallings, 22 Md. 41, 45-47, it was held that the commission was defective in not requiring the commissioners to divide the land into as many parts as it was susceptible of, and to ascertain •521 Partition. §440-441 partition the commissioners are required to make a return of their proceedings to the court for ratification or rejection. 5 The acts of the commissioners are not binding until their return is ratified. 6 The court reposes great confidence in the judgment of the commissioners, who are regarded as witnesses as well as arbitrators. Although their valuation is not conclusive, it is entitled to great respect, and will not be disturbed except upon preponderating evidence against it. 7 No proceedings of the commissioners shall be set aside for matter of form. s §441. Dower and other interests. — The statute re- quires the commissioners to ascertain and lay off the widow's ■dower, before they proceed to divide or value the property, and to make their ascertainment and location of the dower a part of their return; 1 but in. case of a sale, if the widow consents, the estate may be sold clear of dower, and the widow is awarded the value of the several parts upon the division. The return of the com- missioners was defective in not showing affirmatively that the notice prescribed by law was given, and the condition of the land as to in- cumbrances; and also in failing to lay off the widow's dower. In Wilhelm v. Wilhelm, 4 Md. Ch. 330, 332, it was held that it was a fatal objection to the return of the commissioners that two of the infant heirs had no part of the inheritance given them until after the death of their mother, the widow, the parts allowed them being incumbered with her dower. 5 Code, art. 46, sec. 42. «Childs v. Smith, 1 Md. Ch. 483, 487- 7 Crouch v. Smith, 1 Md. Ch. 401, 4°4-4°5; Wilhelm v. Wilhelm, 4 Md. Ch. 330, 331; Cecil v. Dorsey, 1 Md. Ch. 223, 227. 8 Code, art. 46, sec. 70. J'Code, art. 46, sec. 62. In Phelps v. Stewart, 17 Md. 231, 240-241, the commissioners divided the land into several parts and made all of them subject to the incumbrance of the widow's dower. The court held this to be error, and said: "It is quite manifest that this may operate against her inter- ests if she should desire to have her dower assigned and be compelled to claim it in the hands of several purchasers, whilst the heirs might be prejudiced by a sale of the land in parcels, each charged with its pro- portion of the dower. The commission should set this forth as part of the duty of the commissioners, and they must perform it where there is a widow, and so make known to the court in their return." To the same effect see Stallings v. Stallings, 22 Md. 41, 47; and compare Childs v. Smith, 1 Md. Ch. 483, 487-488; Hughes' case, 1 Bl. 46, 49, (form of commission in respect to dower). §441-442 Partition. 522 a just proportion of the purchase money. 2 There is no pro- vision for assigning the widow a portion of the land in fee as equivalent to the value of her dower. 8 Provisions are also made in reference to the rights of tenants by the curtesy 4 and life-tenants and remaindermen. 5 §442. The right of election. — The statute provides that if the commissioners determine that the estate cannot be divided without loss or injury to all the parties, and if their return is confirmed by the court, then, within a certain period, 1 the eldest son, child or person entitled, if of age, shall have election to take the whole estate and pay to the others their just proportions of the value in money; 2 and if the eldest child or person entitled refuses to take the estate and pay to the others money for their proportions, then the next eldest child or person entitled, being of age, shall have the same election, and so on, to the youngest child or person entitled; 3 and per- sons entitled by purchase or otherwise to the undivided estate of an heir to a person dying intestate have the same right, in case they cannot agree upon a division or in case any party 2 Code, art. 46, sec. 63; not exceeding one-seventh part nor less than one-tenth part of the net amount of sales according to the age, health- and condition of the widow; compare rule 25 of the equity courts of Baltimore city in respect to the allowance to the widow, and life- tenants; and rule 45 of the law courts. 3 Wilhelm v. Wilhelm, 4 Md. Ch. 330, 333-334. *Code, art. 46, sees. 57-60. 5 Code, art. 46, sec. 61. 1 "In the said court, and before the expiration of the term next suc- ceeding that in which the return of the commissioners shall have been confirmed"; code, art. 46, sec. 44; see Phelps v. Stewart, 17 Md. 231, 233. See section 43 as to "things indivisible in their nature." 2 Code, art. 46, sec. 44; the valuation is that fixed by the commis- sioners; see Jarrett v. Cooley, 6 H. & J. 258, 260; Stevens v. Richard- son, 6 H. & J. 156, 161. The common law idea of the superiority in right of the eldest male heir was to a certain extent retained in all the acts; Catlin v. Catlin, 60 Md. 573, 577. 3 Code, art. 46, sec. 45. In Stallings v. Stallings, 22 Md. 41, 47, it is said that the pro- ceedings should show that the parties were permitted to avail them- selves of the right of election. 523 Partition. §442 entitled is an infant or non compos mentis. 1 The right of election is entirely statutory and is confined to cases of inherit- ance, not applying to estates coming by will or conveyance; and it can only be exercised in proceedings for the division of in- testate's estates under the provisions of this article of the code. 6 The right is regarded as intrinsically valuable. It becomes vested by the death of the intestate, and may be passed to a grantee, 6 who stands in the place of the vendor as to the right of election or distribution. 7 The right of election, however, has no existence and cannot be enforced un- less the commissioners determine that the estate cannot be divided between all the parries without loss or injury, and their return to this effect be confirmed by the court. 8 The right does not exist if the estate can be divided into as many parts as there are heirs. 9 The right is to take the whole estate *Code, art. 46, sec. 46. The statute makes provision in case any person entitled to make election is absent, (sec. 47); or is non compos or otherwise disqual- ified (sec. 48); if the eldest male is not of age, the eldest female, if twenty-one years of age, may elect, and a husband may elect in the right of his wife, (sec. 49; Catlin v. Catlin, 60 Md. 573, 577); election or refusal may be made in -writing (sec. 50; see Catlin v. Catlin, 60 Md. 573, 58i). 'Johnson v. Hoover, 75 Md. 486, 489. A final decree cannot properly be passed unless the right of elec- tion has been extended to the heirs; Tomlinson v. McKaig, 5 G. 256, 278. 6 Chaney v. Tipton, 11 G. & J. 253, 255; Catlin v. Catlin, 60 Md. 573, 577, 580; Jenkins v. Simms, 45 Md. 532, 536. In Stallings v. Stallings, 22 Md. 41, 47, it was said that the per- sons entitled could not be deprived of the right either by the commis- sioner or the subsequent action of the court thereon. 7 Chaney v. Tipton, 3 G. 327, 334; Jenkins v. Simms, 45 Md. 532, 536; in these cases it is said that "if the interest or claim be such as a court of equity will specifically enforce, the remedy must be sought by the proper process of the chancery court. For any other contract in rela- tion to the land, the ordinary remedies at law or in equity, as the case may require, will be open to the party entitled." Compare Shreve v. Shreve, 43 Md. 382, 391. 8 Wilhelm v. Wilhelm, 4 Md. Ch. 330, 333, as construed in Catlin v. Catlin, 60 Md. 573, 583; if the commissioners return that the land may be divided and this return be approved by the court, the right of elec- tion does not exist. 9 Jenkins v. Simms, 45 Md. 532, 536; if it can be so divided, the par- tition is made by allotment by the commissioners. §442-444 Partition. 524 if indivisible among the heirs, and to take all, or any parcel or parcels, if divided into parcels less than the number of heirs. 10 §443. Acquisition of title by election.— After the division of the estate has been made and confirmed, and the right of election exercised, all that is necessary to consummate the election is to ascertain the amount due to the other heirs, and to give bond for or pay the same according to the order of the court. If the elector dies before the auditor's report is confirmed, the heir of the elector is entitled to com- plete the election by petition in the partition proceedings, al- though his ancestor had not given bond. 1 The bonds remain a lien upon the land until they are paid. 2 The person elect- ing takes title as a purchaser and not by descent. 3 §444. Sale by commissioners. — If all the persons en- titled to elect to take the estate, or any part thereof, at the valuation, shall refuse to take, it, then the estate or such part 10 Catlin v. Catlin, 6b Md. 573, 582; on page 583 it is held that the right is not excluded when the land is partially divisible without loss or injury. In this case there were more than three heirs and the land was divided into three parcels by the commissioners, and the eldest son took the whole property. Jenkins v. Simms, 45 Md. 532, 537-540; the administrator of the deceased elector has no standing to complete the election, the heir or devisee being the proper person to proceed. Under the act of 1786, ch. 45, to direct descents, and its supple- ments, a legal estate in severalty did not vest in the person electing to take until he paid the other heirs their proportions of the valuations, or executed bonds to pay the same; Jarrett v. Cooley, 6 H. & J. 258, 260; Jones v. Jones, 1 Bl. 443, 459-460; Ridgely v. Iglehart, 3 Bl. 540, 546-547. The election by a husband in the right of his wife vested in him an estate in fee, and passed no interest to the wife; Stevens v. Richard- son, 6 H. & J. 156, 161 ; Catlin v. Catlin, 60 Md. 573, 577. 2 Code, art. 46, sec. 51; this provision implies a preceding order of the court before it can be complied with; Jenkins v. Simms, 45 Md. 532, 537-538; compare Thomas v. Farmers' Bank, 32 Md. 57, 67, 70; Ridgely v. Iglehart, 3 Bl. 540, 546-549- The statute of limitations runs against the bonds as against mortgages; Boyd v. Harris, 2 Md. Ch. 210, 213-214. 3 Stevens v. Richardson, 6 H. & J. 156, 161; Jenkins v. Simms, 45 Md. 532, 539- Sections 65 and 69 provide for a deed from the commissioners in certain cases. 525 Partition. §444 thereof as the heirs may not elect to take, shall be sold by the commissioners in such manner as the court may direct; 1 but if all the parties are minors at the death of the intestate, the estate shall not be sold until the eldest arrives at age. 2 If the sale be on credit, bonds shall be taken for the purchase money, 3 which shall be a lien on the lands until paid. 4 On an appeal from a decree for a sale, the previous order ratifying the com- missioners' return may be reviewed, although no appeal was taken therefrom, the order being merely interlocutory. 5 It therefore appears that where a partition cannot be had of the lands descended among the heirs without loss or injury, the act prescribes two modes of effecting a division of their value ; first, that one of the heirs may elect to take the whole or any part at the valuation of the commissioners, when confirmed by the court, on his paying or becoming bound to pay each of the other heirs his due proportion; and, second, if none of the heirs elect to take, then the land shall be sold and the pro- ceeds divided. 6 1 Code, art. 46, sec. 52. In sees. 56, 67 and 69, are further provisions in cases where sales are made by the commissioners. In many cases where the proceedings were by bill and answer, sales have been made by trustees instead of by commissioners, who alone are recognized by the act; Phelps v. Stewart, 17 Md. 231, 240, and arguendo; Billingslea v. Baldwin, 23 Md. 85, 108. 2 Code, art. 46, sec. S3- 3 Code, art. 46, sec. 54. The bond may be given to the State of Maryland; sec. 55; as in Gibbs v. Clagett, 2 G. & J. 14, 24; Ridgely v. Iglehart, 3 Bl. 540. This provision implies a preceding order of court before it can be complied with; Jenkins v. Simms, 45 Md. 532, 538. The order of court should specify the proportions of money represented by the bond to which each of the heirs is entitled; Thompson v. State, 4 G. 163, 165-166; compare Ridgely v. Iglehart, 6 G. & J. 49, 51-52- See also State v. Krebs, 6 H. & J. 31, 36; Jones v. Jones, 1 Bl. 443, 453. Section 66 provides for a deed from the commissioners after the terms of sale shall have been complied with. *To enforce which a bill in equity may be filed; Ridgely v. Iglehart, 6 G. & J. 49, 52, overruling Ridgely v. Iglehart, 3 Bl. 540, 550. See also Jarrett v. Cooley, 6 H. & J. 258, 260; Stem v. Cox, 16 Md. 533, 538; Thomas v. Farmers' Bank, 32 Md. 57, 67. 'Phelps v. Stewart, 17 Md. 231, 243; Stallings v. Stallings, 22 Md. 41, 45; compare Bull v. Pyle, 41 Md. 419, 422; compare ante, sec. 328, note. 8 Ridgely v. Iglehart, 3 Bl. 540, 545; in either case there is a sale, in the one to the heir electing to take, in the other to a purchaser. Com- pare Jenkins v. Simms, 45 Md. 532, 536. CHAPTER XXV. FORECLOSURE OF MORTGAGES. §445- 446. 447- 448. The various proceedings. 449. Strict foreclosure. Foreclosure by formal 450. proceedings. 4S 1 - Certain matters in the proceedings. Decree in personam against mortgagor. The act of 1826, ch. 192. The act of 1836, ch. 249. Sale under a power of sale. 452- History of the legislation. 462. Advertise m e n t ; filing 453- Nature of the jurisdiction mortgage note. to sell. 463- The bond. 454- The power of sale. 464. Where the sale must be 455- ■ Nature of the power of made. sale. 465- Terms of sale. 456. Duty of the mortgagee in 466. The report of sale. making sale. 467. Proceedings upon the 457- Sale by assignee. . report of sale. 458. Sale by person specially 468. Objections to the ratifi- named in the mort- cation. gage. 469. The title that passes. 459- Corporations cannot ex- 470. Expenses of the sale. ercise the power of sale. 471. Miscellaneous statutory 460. Other matters respecting provisions. the power of sale. 472. Sales in Baltimore city. 461. Parties to the proceeding. 473- Injunction to stay sale. Sale under an assent to a decree. 474. The statutory provisions. 481. 475. Nature of jurisdiction. 482. 476. Form of the proceeding; parties. 483. 477. When a decree may be passed. 484. 478. The decree for sale. 479. Appeal from the decree. 485. 480. Suspending the sale. Trustee's bond. Verified statement of claim: mortgage note. Report of sale; and other statutory provisions. Exceptions to the ratifi- cation of the sale. Effect of the ratification. 526 527 Foreclosure of mortgages. §445-446 §445. The various proceedings. — A number of meth- ods have been employed in Maryland at various times for the foreclosure of mortgages. Before the acts of 1784 and 1785, the only remedy of the mortgagee was by a strict foreclosure, by which proceeding the mortgagor, in case he failed to pay the amount due within the time limited, was foreclosed of his equity of redemption. 1 By the acts of the years above named, the court was authorized to decree a sale for the purpose of real- izing funds to pay the amount due; this method is termed foreclosure by. formal proceedings. 2 By an act passed in 1825, a power of sale, to be exercised by the mortgagee or some other person, was provided for. 3 The above-mentioned proceedings were applicable in the State at large. By the act of 1833, pro- visions were made for sale of mortgaged property in Baltimore city under an assent to a decree for sale; this proceeding is the one now commonly used in that city.* There was also the act of 1826, ch. 192, relating to the sale of mortgaged property in the city and county of Baltimore; 5 and the act of 1836, ch. 249, by which a peculiar method was made applicable in Balti- more city alone. 6 §446. Strict foreclosure. — Formerly' the remedy of a mortgagee against a mortgagor in default was by means of a decree of foreclosure. Courts of equity give to the mortgagor what is called the equity of redemption; that is they allow him to redeem his forfeited mortgage by repaying, notwithstanding the default, the sum mentioned therein. And the only way for the mortgagee to prevent this redemption was to file a bill in equity, in which he called upon the mortgagor to repay the money or be forever foreclosed of his equity of redemption. The court in due course passed a decree appointing a day for the money to be paid, and declaring that if it was not paid at or before that time the mortgagor's right of redemption should be forever taken away. Upon the failure to pay at the desig- nee post, sec. 446. 2 See post, sec. 447. 3See post, sees. 452-473. *See post, sees. 474-485. B See post, sec. 450. «See post, sec. 451. §446-447 FORECLOSURE OF MORTGAGES. 528- nated time the decree was made final and absolute. This is a decree of foreclosure, and it was the ordinary proceeding in be- half of mortgagees before the act of assembly which au- thorized courts of equity to decree that the property should be sold. The decree ipso facto extinguishes the mortgagor's right of redemption and vests the entire title in the mortgagee. The decree of foreclosure has disappeared from our practice, being entirely superseded by the more convenient decree for sale, which is, however, sometimes, though inaccurately, called a foreclosure decree. 1 * §447. Foreclosure by formal proceedings. — The remedy by foreclosure, from its tedious character, was calcu- lated to abridge very much the mortgage form of security. In authorizing a sale of mortgaged premises, the legislature had in view the objects of simplifying remedies, furnishing speedy redress, rendering these securities available, according to the design of the parties, in the shortest time practicable, and en- couraging this kind of contract and security. 1 The first stat- ute was the act of 1784, ch. 58, which furnished encouragement to foreigners to lend their capital to citizens of this State; 2 this 1 Hanover Ins. Co. v. Brown, yy Md. 64, 70-71. See also Jones v. Betsworth, 3 Bl. 194, 196, note case; Worthington v. Lee, 2 Bl. 678, 685. Instances of such proceedings are in Atkinson v. Hall, 2 Bl. 371, note case; Wardrop v. Hall, Hunter v. Gaunt, and Buchanan v. Shan- non, note cases to 2 Bl. 666-668. The forms of a bill and decree for this proceeding are given in Carey's Forms, Nos. 730 and 731, pages 560-562. Upon the general subject, see Jones on Mortgages, sees. 1538- 1570. iBoteler v. Brookes, 7 G. & J. 143, 151-152; see this case for several matters in connection with the liability of the sureties on the bond of the trustee appointed to sell. In Andrews v. Scotton, 2 Bl. 629, 666, (1829), it was said that the provisions of the act of 1785, ch. 72, were considered as merely intro- ducing an additional remedy, and not as abrogating a pre-existing mode of relief, and that the mortgagee might have a decree of foreclos- ure instead of a decree for a sale. 2 This act provided for a sale of the mortgaged property, and a decree against the mortgagor for any unpaid balance. The preamble of the act was: "Whereas it may prove advantageous to citizens of this State 529 Foreclosure of mortgages. §447-448 was followed by the act of 1785, ch. 72, sees. 1, 2 and 3, which ex- tended the power to sell in all cases of mortgages, where a default had occurred in the payment of the money. 3 Section 3 of the act of 1785, ch. 72, was in substance adopted in the codes of i860 4 and 1888. The present form is as follows: "When any suit is instituted to foreclose a mortgage, the court may decree that, unless the debt and costs be paid by a day fixed by the decree, the property mortgaged, or so much thereof as may be necessary for the satisfaction of said debt and cost, 5 shall be sold ; and such sale shall be for cash, unless the plain- tiff shall consent to a sale on credit." 6 §448. Certain matters in the proceedings. — As the statute provided for a sale in case the mortgagor did not pay the sum due upon the mortgage by the time limited, the were foreigners enabled to lend them money on mortgages, and such loans may conduce much to the improvement of the country." 3 Section I of the act of 1785, ch. 72, provided for the sale of mort- gaged property belonging to infants or lunatics; Jones v. Betsworth, 3 Bl. 194, 196, note case. Section 2 provided for a bond when the lands of an infant were sold; this was repealed by the act of 1837, ch. 292. Section 3 provided that "in all cases of application to the chan- cellor to foreclose any mortgage, he shall have full power and author- ity, in case the party against whom the bill shall be filed does not pay the sum due upon the mortgage by the time limited in the decree for paying the same, to order and direct that the mortgaged premises, or so much thereof as may be necessary to discharge the money due and costs, be sold for ready money (unless the plaintiff shall consent to a sale on credit,) by a proper person to be appointed," &c. This act was without distinction as to infants or adults; Jones v. Betsworth, 3 Bl. 194, 197, note case. 4 Johnson v. Robertson, 31 Md. 476, 487; Johnson v. Hambleton, 52 Md. 378, 386. 5 As to the amount of land to be sold, and whether in solido or in par- cels, see Johnson v. Hambleton, 52 Md. 378, 381-386, and the cases cited; Patterson v. Miller, 52 Md. 388, 397-398; see also post, sec. 493, note 3. e Code, art. 16, sec. 187; the act of 1876, ch. 327, (which added to the section in the code of i860, by providing for a decree in personam against the mortgagor — see post, sec. 449,) made also verbal changes in the sec- tion as it stood in the code of i860, art. 16, sec. 125. In Albert v. Hamilton, 76 Md. 304, 308, the proceedings under a formal bill to sell mortgaged property, and the proceeding by power of sale, are compared briefly. As to parties to bills to foreclose, see ante, sees. 62-63. 34 §448 Foreclosure op mortgages. 530 defendant was entitled to have a day given him to bring in the money before the passage of a decree for sale. 1 But this provision being for the benefit of the mortgagor, he could waive it if he chose. 2 The usual time allowed was one month.' The right to have a day fixed for the payment of the debt, is, however, subordinate to the provisions of the section of the code, allowing a sale before final decree in certain circum- stances. 4 Generally there should be a decree to account, and the amount of the sum due should be ascertained, before a decree for sale should be passed. 6 But where the bill was upon a mortgage to secure the payment of a sum certain, and the defendants admitted the amount due, there was no necessity of a decree to account. 6 The sale must be for cash unless the iWorthington v. -Lee, 2 Bl. 678, 685. In Gibson v. McCormick, 10 G. & J. 65, 102, it is said that the de- sign of the provision was to give the debtor an opportunity of supersed- ing the necessity for the sale of his mortgaged estate; and that the stat- ute did not apply to a bill filed by a general creditor of the mortgagor seeking for the payment of his debt by a sale of the mortgagor's real es- tate, and the mortgaged premises among the rest. See also Reese v. Bank, 14 Md. 271, 284; Brown v. C. & O. Canal Co., 73 Md. 567, 606. 2 David v. Grahame, 2 H. & G. 94, 98; see the facts and other points here; Dorsey v. Dorsey, 30 Md. 522, 528; Johnson v. Robertson, 31 Md. 476, 487-488; see also Dorsey v. Thompson, 37 Md. 25, 48-49. s Jones v. Betsworth, 3 Bl. 194, 196, note case; similarly in Mobray v. Leckie, 42 Md. 474, 478-479; Gustav Assn. v. Kratz, 55 Md. 394, 397; compare Triebert v. Burgess, n Md. 452, 464. 4 Dorsey v. Dorsey, 30 Md. 522, 528; code, art. 16, sec. 192; see post, chapter xxxn. 6 Worthington v. Lee, 2 Bl. 678, 683; Wylie v. McMakin, 2 Md. Ch. 413. 4i6. In State v. Brown, 64 Md. 199, 205, it is said that it is necessary for the court to ascertain the amount of the debt, so that the defendant may know how much it is necessary for him to pay in order to prevent the sale. Compare Harding v. Allen, 70 Md. 395, 399, in which the claim was overstated in the decree; the court of appeals held that it would not reverse the decree, otherwise correct, for a matter which would be subject to correction in the auditor's account. In Mobray v. Leckie, 42 Md. 474, 479, the decree was erroneous in that it ascertained the principal and interest to the date of the decree and decreed that interest should be paid on that sum from the date of the decree; there should not be compound interest. Compare Ma- honey v. Mackubin, 54 Md. 268, 277. 6 David v. Grahame, 2 H. & G. 94, 96-97. 531 Foreclosure of mortgages. §448-449 plaintiff consents to a sale on credit. 7 A trustee appointed to sell may be authorized to collect rents and to bring the money into court. 8 §449. Decree in personam against mortgagor. — Without the aid of a statute, the court could not enter a decree against a mortgagor for any balance that might be due by him after the proceeds of sale were applied to the debt. 1 But by stat- ute, it is now provided that in any suit instituted to foreclose a mortgage, if after the sale of the whole mortgaged property, the net proceeds are not sufficient to satisfy the debt and in- terest, the court may enter a decree in personam against the mortgagor or other party to the suit liable for the payment thereof, provided the mortgagee would be entitled to maintain an action at law upon the covenants in the mortgage; which decree shall have the same effect as a judgment at law. 2 The decree cannot be rendered until all the proceeds of the sale of the mortgaged premises have been applied; and then only for the balance of the mortgage debt. The mortgagor should have an opportunity to present any defence arising after the passage of the decree for sale; and therefore, as preliminary to the decree, an order nisi should be passed, and served on the defendant, requiring him to show cause against the de- cree. Where a mortgage was not executed under the seals of the mortgagors, no decree could be passed against them, since by the statute, the right to the decree only exists where the mortgagee would be entitled to maintain an action at law upon the covenants in the mortgage for the residue of the mortgage debt. 3 7 Code, art. 16, sec. 187; Jones v. Betsworth, 3 Bl. 194, 195, note case. 8 Clark v. Abbott, 1 Md. Ch. 474, 478. In Higgins v. Horwitz, 9 G. 341, 346, it was said that the practice of making the plaintiff the trustee for the sale of the mortgaged prop- erty was objectionable; compare the practice under mortgages with a power of sale; post, sec. 456. Andrews v. Scotton, 2 Bl. 629, 667-668; Worthington v. Lee, 2 Bl. 678, 683. 2 Code, art. 16, sec. 187; see the section in full; compare the similar proceedings in sales under a power to .sell; post, sec. 471, and note. 3 McDonald v. Workingmen's Assn., 60 Md. 589, 591-592- §450 Foreclosure of mortgages. 532 §450. The act of i8a6, ch. 19a.— The act of 1826, ch. 192, was passed when Baltimore city was a part of Baltimore county, the title of the law being "an act relating to mortgages in the city and- county of Baltimore." 1 It provided that a mortgagee of lands lying within the city of Baltimore or in any part of Baltimore county, and his executors, administrators or assigns, or his or their attorney, agent or trustee appointed for that purpose, should be authorized in default of payment of principal or interest, and after giving at least twenty days' notice in two or more daily newspapers published in the city, to sell the property as fully and freely as any trustee acting under a decree of any court might do. 2 The act also provided , that before any person should be entitled to act in virtue of the authority vested by the statute, he should give bond. 3 Twenty days' notice in two or more daily newspapers was required, giving the time, place, manner and terms of sale; by which was not meant twenty days' daily notice. 4 The act prescribed no special terms of sale; cash sales were not required. 5 The trus- tee was required to make report, under oath, of the sale, of the mode of proceedings, of the matters done and of the fairness of the sale, within fifteen days thereafter, whereupon a copy of 1 White v. Malcolm, 15 Md. 529, 543. The act was not repealed by the adoption of the constitution of 1851; Eichelberger v. Hardesty, 15 Md. 548, 550-551. 2 Act of 1826, ch. 192, sec. 1. In Wilson v. Watts, 9 Md. 356, 459, per Le Grand, C. J., and other pages of the case, reference is made to the act of 1826, ch. 296; and in Warehime v. Carroll Assn., 44 Md. 512, 517, the same act is referred to. The number of the chapter, however, appears to be a misprint, as there is no chapter 296 in the acts of 1826. It is probable that chapter 192 was intended. In several cases references have been made in the argu- ments of counsel to Wilson v. Watts, 9 Md. 356, as a case under the act of 1826, ch. 192; thus in White v. Malcolm, 15 Md. 529, 532, 534, and Mc- Cabe v. Ward, 18 Md. 505, 507. 3 Act 1826, ch. 192, sec. 2; White v. Malcolm, 15 Md. 529, 542; see Wilson v. Watts, 9 Md. 356, 459, per Le Grand, C. J. In McCabe v. Ward, 18 Md. 505, 508-509, it was held that juris- diction did not attach until the preliminary requisites of the act, and filing a bond in compliance with its provisions, had been strictly grat- ified. This case was practically overruled by Cockey v. Cole, 28 Md. 276, 286. *White v. Malcolm, 15 Md. 529, 543-544. 'White v. Malcolm, 15 Md. 529, 544; terms of one-third cash, balance in six and twelve months, were held reasonable. 533 Foreclosure of mortgages. §450-451 the report was published, and after affirmance of the sale, a deed was executed to the purchaser. 6 Where sales were made r.nd reported, appeals could be taken from decrees or decretal orders passed by the court. 7 The failure of the trustee to state what the terms were, or whether they were complied with, was not a reason for setting the sales aside; the report should be amended. 8 The ratification of the sale was prohibited for twenty days, thereby securing to persons interested that length of time to present objections. 9 If a sale were made without a compliance with the act, the objection could be made when the sale was reported; no injunction to stay the sale could be granted, unless the bill for injunction followed the provisions of the act. 10 The purchaser was entitled to a writ of possess- ion, and the rights of himself and the tenants of the mortgagor inter sese were provided for. 11 §451. The act of 1836, ch. 349. — A statute relating exclusively to the foreclosure of mortgages in Baltimore city was the act of 1836, ch. 249, which provided that every mort- gage of any estate in lands and tenements in the city of Balti- more containing therein a power to the mortgagee or any other person to sell the mortgaged premises, upon default being made in any condition therein, might be foreclosed as provided in the act. Minute provisions, characterized as anomalous and extraordinary, 1 were made in reference to the publication of the advertisement, 2 the contents thereof, 3 the postponement and 6 Act of 1826, ch. 192, sees. 3-4; compare Wilson v. Watts, 9 Md. 356, 459, per Le Grand, C. J.; and see also Mackubin v. Boarman, 54 Md. 384, 386-387. 'White v. Malcolm, 15 Md. 529, 540. 8 White v. Malcolm, 15 Md. 529, 544-545- "White v. Malcolm, 15 Md. 529, 546; act of 1826, ch. 192, sec. 5. 10 Gayle v. Fattle, 14 Md. 69, 84-86; act of 1826, ch. 192, sec. 8; Powell v. Hopkins, 38 Md. 1, 10-11. "Act of 1826, ch. 192, sees. 6-7. iWhite v. McClellan, 62 Md. 347, 350. 2 Act of 1836, ch. 249, sec. 2; quoted in White v. McClellan, 62 Md. 347, 350; compare also Hardester v. Sharretts, 84 Md. — . Hd In Hays v. Dorsey, 5 Md. 99, 101, it is said that the mortgage in that case was executed under the acts of 1833, ch. 181, and 1836, ch. 249; similarly in McDowell v. Goldsmith, 6 Md. 319, 320. 3 Act of 1836, ch. 249, sec. 3. In White v. McClellan, 62 Md. 347, 351-353, several objections to §451-452 Foreclosure of mortgages. 534 conduct of the sale, the title of the purchaser, the disposition of the proceeds of sale and the affidavits of publication and sale. 4 When the property was purchased by the mortgagee, the affidavits were made evidence of the sale and foreclosure without any conveyance being executed, in the same manner and with the like effect as a conveyance executed by the mort- gagee upon a sale to a third person. 6 There was no provision requiring the sale to be reported to a court for ratification. 6 Sale under a power of sale. §452. History of the legislation. — The provisions of the code are mainly based upon the act of 1825, ch. 203. 1 Be- fore this act was passed, however, a mortgagor could by the terms of his mortgage clothe the mortgagee or any third party, to be named in the mortgage, with power to sell in default of payment. 2 The act was both retroactive and prospective. 8 The code of i860, art. 64, sec. 5, for the first time in the history the advertisement were urged as fatal to the validity of the sale, but the court overruled them. 4 Act of 1836, ch. 249, sees. 4-12. 5 Act of 1836, ch. 249, sec. 14. Other sections relate to the assignment of the mortgage, record- ing of the assignment, and injunction to stay sale. "White v. McClellan, 62 Md. 347, 353. iHarnickell v. Orndorff, 35 Md. 341, 342; compare Warehime v. Car- roll Assn., 44 Md. 512, 517, citing the act of 1826, ch. 296, probably er- roneously for ch. 192; see ante, sec. 450, note. The present code pro- visions (code, art. 66,) are also based in part upon the acts of 1826, ch. 192, an'd 1836, ch. 249. 2 Harnickell v. Orndorff, 35 Md. 341, 342-343; compare Boteler v. Brookes, 7 G. & J. 143, 151. In Charles v. Clagett, 3 Md. 82, 96, it is said, per Eccleston, J., that at one time doubts were entertained as to the validity of sales, un- der powers contained in mortgages, unless made with the concurrence of the mortgagor, or the sanction of a court of equity, and that it seemed that some such consideration led to the passage of the act of 1825. "Hubbard v. Jarrell, 23 Md. 66, 81; Charles v. Clagett, 3 Md. 82, 96, per Eccleston, J. ; in the first mentioned case it is said that some of the provisions of the act, with others changed, were copied into the code of i860, art. 64, "which further prescribes the mode of reporting the sale and procuring its ratification; provisions not affecting the rights of par- ties under the mortgage, but only perfecting the remedy." 535 Foreclosure op mortgages. §452-453 of the legislation of the State,* provided that "in all mortgages there may be inserted a clause authorizing the mortgagee or any other person to be named therein, to sell the mortgaged prem- ises, whether lands or goods and chattels, upon such terms and on such contingencies as may be expressed therein." 5 The proceeding is wholly ex parte and without process, 6 and does not constitute a "suit." 7 The purpose of the legislation was to provide a more expeditious and less expensive method of enforcing mortgages than the former proceedings by for- mal bill in equity. 8 §453. Nature of the jurisdiction to sell. — Proceed- ings under the statute are within the general chancery powers of the court, and are not proceedings within a special and lim- ited jurisdiction. The power to foreclose after default is one of the ordinary powers of a court of chancery existing independ- ently of the consent of the mortgagor, or the provisions of the mortgage. The statute simply provides a summary mode for the exercise of an ordinary jurisdiction, over a subject-matter 4 Mackubin v. Boarman, 54 Md. 384, 387. 5 The mortgages herein referred to are technical mortgages, which are distinguished from other instruments, such as deeds of trust; Bank of Commerce v. Lanahan, 45 Md. 396, 407-409; Harrison v. Annapolis R. Co., 50 Md. 490, 514-515; compare Charles v. Clagett, 3 Md. 82, 96; Snowden v. Pitcher, 45 Md. 260, 266; Stanhope v. Dodge, 52 Md. 483, 490; Shidy v. Cutter, 54 Md. 674, 677. 6 Chilton v. Brooks, 71 Md. 445, 448; see the proceedings in Western Md. Land Co. v. Goodwin, 77 Md. 271, 275. In Warehime v. Carroll Assn., 44 Md. 512, 516, it is said that there is no provision in the code of public general laws authorizing a decree for the sale of mortgaged premises upon mere consent expressed in the mortgage, before default. There is, however, such a provision in the local law relating to Baltimore city; post, sees. 474-485. 'Ruley v. Hyland, 77 Md. 487, 488; see the remarks here, in which it was held that an attorney for the assignee foreclosing is not entitled to an appearance fee. In Hanover Fire Ins. Co. v. Brown, 77 Md. 64, 70-71, it was held that a provision in an insurance policy that it should be void imme- diately upon the passing or entering of a decree of foreclosure is not violated by a proceeding for a sale under a power contained in a mort- gage upon the property insured. Compare Merchants' Ins. Co. v. Brown, 77 Md. 79, 80. 8 Albert v. Hamilton, 76 Md. 304, 308. §453-454 Foreclosure of mortgages. 536 of which the court had full and ample cognizance, independent of the statutory provision. 1 In sales made under the statute, when they are brought within the control of the court of chan- cery, the same rules are applied as to chancery sales generally. Such sales are intended to be under the superintendence of the court and governed by the same rules as those made by trustees appointed by decree of the court. The court acts for all the parties interested and who are entitled to interfere. They are incomplete until ratified by the court. The statute of frauds does not apply to them. 2 §454. The power of sale. — Instead of a regular pro- ceeding for foreclosure, the agreement of parties, as expressed in the power of sale contained in the mortgage, is substituted for a decree of sale. 1 The whole foundation for the exercise of the summary jurisdiction is based upon the assumption that there is a valid power of sale; without which no sale under the statute can be made. The right to convey the estate is de- rived from the power of sale, and not from any order of ratifi- cation of the sale. 2 The power of sale is derived exclusively from the agreement and contract of the parties to the mort- gage. 3 This privilege enables the mortgagee, for the security and prompt collection of the mortgage debt, to sell the prop- erty immediately upon default, made by the mortgagor, without the previous authority of a court or a decree, and to iCockey v. Cole, 28 Md. 276, 283-284; quoted in Warehime v. Car- roll Assn., 44 Md. 512, 517-518; Warfield v. Dorsey, 39 Md. 299, 307-308. 2 Warfield v. Dorsey, 39 Md. 299, 308; Warehime v. Graf, 83 Md. 98, 102; see also Hanover Fire Ins. Co. v. Brown, 77 Md. 64, 71-72. [§454-] hockey v. Cole, 28 Md. 276, 283, quoted in Warehime v. Car- roll Assn., 44 Md. 512, 517. The act of 1856, ch. 154, sec. no, contained a form of power of sale with the construction to be given to it; Hubbard v Jarrell 23 Md 66,79. 2 Queen City Assn. v. Price, 53 Md. 397, 400; in this case (page 401), it was held that a third party, a purchaser at a sale made without a legal power of sale, who had paid the purchase money, would be entitled as assignee of the mortgage; but where, as here, the mortgagee became the purchaser, it acquired no rights and was required to pay all the ex- penses attending the ineffectual sale. 3 Johnson v. Glenn, 80 Md. 369, 370. 537 Foreclosure of mortgages. §454-455 apply the entire proceeds to the payment of the debt without the deduction of commissions to a trustee. In many instan- ces the debt would be paid in full in no other way. It further enables the parties to contract as to who shall sell in case the mortgagee should not avail himself of the privilege.* §455. Nature of the power of sale.— The power of sale given to the mortgagee by this provision of the code is a power coupled with an interest in the premises conveyed by the mortgage deed. Being intended for the benefit of the mortgagee, as affording him a more speedy and summary mode of collecting his debt than by ordinary proceeding to fore- close, it is appendant to the estate and is part of the security itself. It passes with the estate by assignment of the mort- gage debt, and will not be affected by the death of the mort- gagor, or by his becoming a lunatic, but may be executed after his death or lunacy. The insertion of the power does not, however, affect the right of the mortgagor to redeem at any time before the power is executed; but the execution of the power by sale of the mortgaged premises, virtually forecloses the mortgage and divests all right of redemption. 1 It is pro- vided that the power of sale shall be held divisible where the interests in any mortgage are held under one or more assign- ments, or otherwise. 2 *]Vtackubin v. Boarman, 54 Md. 384, 387. 1 Berry v. Skinner, 30 Md. 567, 572-574, followed and stated in Mack- ubin v. Boarman, 54 Md. 384, 387-388; Powell v. Hopkins, 38 Md. 1, 12; Ensor v. Lewis, 54 Md. 391, 398; Dill v. Satterfield, 34 Md. 52, 53-54; Harnickell v. Orndorff, 35 Md. 341, 342-343; Barrick v. Horner, 78 Md. 253, 255-257; Western Md. Land Co. v. Goodwin, tj Md. 271, 277-278. It was further held in the first mentioned case that the application of the committee of the mortgagor, who had become a lunatic, for an order to sell the mortgaged premises, for the benefit of creditors generally, did not have the effect to suspend the execution of the power of sale by the mortgagee; see the similar instance in Powell v. Hopkins, 38 Md. 1, 12-13; see also Queen City Assn. v. Price, 53 Md. 397, 401. The filing of a creditors' bill against the mortgagor does not prevent the execution of the power by the mortgagee; McNiece v. Eliason, 78 Md. 168, 178-179; compare Carroll v. Kershner, 47 Md. 262, 277. 2 Code, art. 66, sec. 6. §456 Foreclosure op mortgages. 538 §456. Duty of the mortgagee in making sale.— The statute grants exceptional privileges to mortgagees, au- thorizing them or their assignee's to sell at once upon default without obtaining a decree for that purpose, and permitting them to become purchasers at their own sale without having their title impeached upon that ground. 1 The mortgagees are therefore bound to act with strict impartiality. When they are both vendors and purchasers there is greater reason for dili- gence and effort on their part to obtain the best price, and the court is called upon to exercise more care and strictness in passing upon the sale thus made ; 2 especially where the mort- gagee reports himself as purchaser at a great depreciation. 3 The mortgagee is constituted a trustete by the mortgage to sell the property on default of payment. 4 He acts not for himself iCode, art. 66, sec. 14; Dircks v. Logsdon, 59 Md. 173, 178-179; the section in full is as follows: "No title to mortgaged premises derived from any sale made in virtue of such power and confirmed as aforesaid, shall be questioned, impeached or defeated, either at law or in equity, by reason that the mortgaged premises were purchased in by the mortgagee or his assignee, or his legal representatives, or for his ben- efit or account." In Korns v. Shaffer, 27 Md. 83, 90, a mortgage of- personal prop- erty was not executed under the statute. It was held that the rule that a trustee could not purchase at his own sale applied, and the sale by the mortgagee to himself was therefore set aside. 2 Chilton v. Brooks, 69 Md. 584, 587; Hubbard v. Jarrell, 23 Md. 66, 85. Compare Warfield v. Ross, 38 Md. 85, 92; Chilton v. Brooks, 71 Md. 44s, 452; Mahoney v. Mackubin, 52 Md. 357, 366. In Chilton v. Brooks, 69 Md. 584, 587, it was said that the rule in reference to vacating sales for inadequacy of price may be applied with • more strictness in a sale by mortgagees under a power of sale than in ordinary sales. 8 Horsey v. Hough, 38 Md. 130, 140; in this case it is said that "the mortgagee has a personal interest in the proceeding, and that the mort- gagor has, notwithstanding, reposed full trust and confidence in his strict impartiality, and that there must be ample reciprocity on his part by a fair and just discharge of his duty. No court can countenance a breach of faith or failure of duty under such circumstances." In Loeber v. Eckes, 55 Md. 1, 3, it was said that in a sale of this kind "if there has been anything like fraud or unfairness on the part of the mortgagee or his agents in reference to the sale and cal- culated to affect it injuriously, that fact, in connection with great inad- equacy of price, is good ground for setting it aside." *Berry v. Skinner, 30 Md. 567, 574; Powell v. Hopkins, 38 Md. 1, 12; 539 Foreclosure of mortgages. §456-457 alone, but as a fiduciary, and for the benefit of all parties inter- ested in the proceedings. His duties are analogous to those of a trustee under a decree, and the court must determine upon the propriety of the sale made by him as in the case of an or- dinary trustee." He should exercise the prudence which would be expected of a prudent man in making sale of his own property, in order that the property may sell for all that it will. 6 §457. Sale by assignee. — The statutory provision is that in all mortgages there may be inserted a clause authorizing the mortgagee to sell the mortgaged premises. 1 The power of sale given to the mortgagee being one coupled with an inter- est, and appurtenant to the estate, may be exercised by an as- signee in fact of the mortgagee, 2 or by assignee in law, as his administrator 3 or executor. 4 The assignment of a mortgage for the purpose of enabling the assignee to enforce the collection of the mortgage debt is proper, and passes to the assignee the power to sell. 5 Where a mortgage was made to a trustee and Mackubin v. Boarman, 54 Md. 384, 388; Wicks v. Westcott, 59 Md. 270, 277; compare Warehime v. Carroll Assn., 44 Md. 512, 520; Korns v. Shaffer, 27 Md. 83, 89. 'Horsey v. Hough, 38 Md. 130, 139-140; Wicks v. Westcott, 59 Md. 270, 277. 8 Wicks v. Westcott, 59 Md. 270, 277. 1 Code, art. 66, sec. 6. In Hubbard v. Jarrell, 23 Md. 66, 82, the sale was made by a per- son who acted as agent and attorney of the mortgagees. The adver- tisement set forth the names of the mortgagees with their power to sell under the mortgage, and that the person was acting as their agent. This was held to be not improper. Stated in Wicks v. Westcott, 59 Md. 270, 279. 2 Dill v. Satterfield, 34 Md. 52, 53-54; Harnickell v. Orndorff, 35 Md. 341, 342-343; Mackubin v. Boarman, 54 Md. 384, 387-388; Johnson v. Glenn, 80 Md. 369, 370. 3 Harnickell v. Orndorff, 35 Md. 341, 343; the power will pass to any one who comes to the estate under the mortgagee, whether he be an assignee in fact or in law. In Warehime v. Carroll Assn., 44 Md. 512, 520, it was said that the power of sale there was in the nature of a trust, which a court of equity would not permit to fail because of the inability of the trustee to execute it "modo et forma.'' ^Chilton v. Brooks, 71 Md. 445, 451. 5 Russum v. Wanser, 53 Md. 92, 96-97; Bouldin v. Reynolds, 58 Md. 491, 495- Compare Gaither v. Tolson, 84 Md. — . §457-458 Foreclosure of mortgages. 540 the power was given to him and his successors and assigns, and a new trustee was appointed to succeed the former one and the mortgage debt was assigned by the former to the latter, the power of sale is properly exercised by the latter, whether as successor or as assignee. 6 The power may be exercised by a married woman. 7 §458. Sale by person specially named in the mortgage. — The statute provides that there may be inserted in all mortgages a clause authorizing the mortgagee or any person to be named therein, to sell the mortgaged premises. 1 If any other person than the mortgagee or his assigns be in- tended by the parties to the mortgage to execute the power, he or they must be specially named in the power. 2 The assignee of a mortgagee, whoever he may be, (if not a corporation,) may execute the power as if designated by name, while an attorney may do it only when specially named. 3 Hence, where a power to sell was given to a third person and his executors, it was held that the executors not being specially named, were not author- ized to execute the power.* A power to sell, conferred upon a third person who has no interest in the estate is a collateral power; it is not an incident of the estate conveyed by the mort- gage, does not pass on the death of the donee to his representa- tives, and can be exercised only by the person specially named in the mortgage. 5 "Western Md. 'Land Co. v. Goodwin, 77 Md. 271, 278-281. 7 Bouldin v. Reynolds, 58 Md. 491, 494-495. 1 Code, art. 66, sec. 6. 2 Queen City Assn. v. Price, 53 Md. 397, 400; in this case the mortgage authorized the mortgagee, a corporation, "or its attorney," to sell the property. This power was held to be void. In Chilton v. Brooks, 71 Md. 445, 449-450, it was said of this case that for the want of the designation of some person to execute the power, the power was void. The case is also quoted in Barrick v. Horner, 78 Md. 253, 256-257. See also Frostburg Assn. v. Lowdermilk, 50 Md. 175, 179. 3 Chilton v. Brooks, 71 Md. 445, 450; quoted in Barrick v. Horner, 78 Md. 253, 257. *Barrick v. Horner, 78 Md. 253, 256-257. 5 Barrick v. Horner, 78 Md. 253, 255-257; in this case a power to sell was given by the mortgage, not to the mortgagee, but to a third per- son, who afterwards became the assignee of the mortgage; upon his death, the power did not pass to his legal representatives. It is also 541 Foreclosure of mortgages. §459-460 §459. Corporations cannot exercise the power of Sale. — The sections of the statute authorize a natural person, and not an artificial one, such as a corporation, to exercise the power of sale. A corporation cannot execute such a power; nor can an agent or attorney appointed by it do so, since the seotion, while recognizing the deputation of authority to some other person than the mortgagee, requires that person to be named in the mortgage. 1 If the power to sell be given to a corporation and to no one else, such as assignees, the power is void. Some one capable of executing the power must be des- ignated. Where the assignees of a corporation are named as authorized to execute the power they may do so, although their assignor could not execute it. An attorney, however, can only do it when specially named. 2 §460. Other matters respecting the power of sale. — Prior to the insolvent act of 1880, ch. 172, sec. 26, it was held that where a mortgage contained a clause authorizing the mortgagee or his attorney to sell the property in case of de- fault, and the mortgagor after default, but before sale, applied for the benefit of the insolvent laws, the trustee in insolvency, and not the person named in the mortgage, was entitled to sell the mortgaged premises. 1 But by the act above mentioned it said here, that the selection of the donee of the power is presumably- made with reference to the special skill and ability of the individual se- lected or by reason of the personal confidence reposed in him by the parties. 1 Frostburg Assn. v. Lowdermilk, 50 Md. 175, 179; Queen City Assn. v. Price, 53 Md. 397, 399-400; Madigan v. Workingmen's Assn., 73 Md. 317,320. In Warehime v. Carroll Assn., 44 Md. 512, 514-515, a sale was made by a corporation mortgagee, and the order ratifying the sale was affirmed by the court of appeals, without alluding to the right of the corporation to sell; see also Lamm v. Port Deposit Assn., 49 Md. 233, 242. 2 Chilton v. Brooks, 71 Md. 445, 449-450. rj^eo.JiMackubin v. Boarman, 54 Md. 384, 390; Ensor v. Keech, 64 Md. 378, 381-382; compare Gable v. Scott, 56 Md. 176, 185. But if the mortgagee is a non-resident, the insolvency proceed- ings in Maryland would not affect him, or disturb the power of sale given by the mortgage to him or for his benefit; Ensor v. Lewis, 54 Md. 391, 398. If, after a sale was made, and reported, the mortgagor went into §460 Foreclosure of mortgages. 542 was provided that in such a case, and in some other similar cases, the. right of the person authorized to sell should not be disturbed. 2 Where the interests in any mortgage are held un- der one or more assignments, or otherwise, the power of sale therein contained shall be held divisible and he or they holding any such interest who shall first institute proceedings to exe- cute such power shall thereby acquire the exclusive right to sell the mortgaged premises. 3 By the act of 1890, ch. 187, all de- fective sales made between January 1, i860, and December 31, 1878, are made valid as fully as if the persons making them had been named in the mortgage, whether the mortgagee be a natural person or a corporation. This act is retroactive and valid. It covered a case pending at the time of the passage of insolvency, the title of the purchaser was respected; White v. Mal- colm, 15 Md. 529, 545-546; Mackubin v. Boarman, 54 Md. 384, 386-387. 2 Where the mortgage contained no power of sale, it was the exclusive duty of the trustee in insolvency to sell the property; Queen City Assn. v. Price, 53 Md. 397, 401, citing Zeigler v. King, 9 Md. 330; see also post, sec. 478, note. The act of 1880, ch. 172, sec. 26, was incorporated into the code of 1888 as sec. 25 of art. 47; it was thereafter amended by the act of 1892, ch. 658, to read as follows : "If any real estate, chattel real, or personal property of the insol- vent shall have been decreed to be sold by virtue of any decree of any court of equity for the enforcement of a mortgage, or if there be a power of sale, or a consent to a decree for a sale contained in any mort- gage, or bill of sale of real estate, chattels real, or personal property of the insolvent, as the case may be, the filing of the petition in insolvency, either by or against the insolvents, as hereinbefore provided, and the subsequent proceedings in insolvency on such petition shall not dis- turb, defeat, or impair the right of the mortgagee to apply for a decree, or of the trustee named in the decree, or the mortgagee, or bargainee, or his assignee, or person authorized in the mortgage or bill of sale to make sale, to proceed with such sale, or to execute the power of sale contained in said decree, mortgage, or bill of sale, unless the right, or power or consent to decree shall be waived in writing by the mortgagee, or his proper representatives, and in all such cases in the absence of waiver of right by the mortgagee or his proper representatives, as here- inbefore provided, the trustee in insolvency shall only be authorized to sell the equity of redemption of the insolvent in all such property (covered) by decree, mortgage or bill of sale as aforesaid." 3 Code, art. 66, sec. 6; the section further provides for the review of any sale made and set aside upon the ground that the power is in- divisible. 54:3 Foreclosure of mortgages. * §460-462 the act, brought to have a sale made under such power declared void.* §461. Parties to the proceeding. — The general prin- ciples of equity requiring all parties having claims to the mat- ter in controversy to be made parties do not apply to proceed- ings under the statute. The jurisdiction is strictly confined to the parties to the mortgage. 1 Thus subsequent incumbrancers are not to be made parties, but they may come in by petition and assert their claims on the proceeds. 2 Although objections may be filed against the sale by any person interested in the property, no person whose interest would not be affected by the sale can intervene. 3 §462. Advertisement; filing of mortgage note. — The statute provides that in all sales made in pursuance of the authority contained in the mortgage there shall be given such notice as may be stated in such mortgage; or if there be no agreement as to notice, twenty days' notice shall be given in some newspaper, printed in the county where the premises lie, if there be one so published, and if not, in a newspaper having a large circulation in said county, and also by advertisement set up at the courthouse door of said county. 1 The advertisement to be set up at the courthouse door is only necessary in case 4 Madigan v. Workingmen's Assn., 73 Md. 317, 320-322; the act is added to the code of 1888 as section 23 of article 66. 1 Warfield v. Ross, 38 Md. 85, 90; in this case certain reversioners in a deed to the mortgagor, the latter, however, having the right to mort- gage the property absolutely, were held not to be proper parties to the foreclosure proceeding. 2 Chilton v. Brooks, 71 Md. 445, 448; code, art. 66, sec. 12. This sec- tion is given in full, post, sec. 471, note 6. 3 Warfield v. Ross, 38 Md. 85, 90; Carroll v. Kershner, 47 Md. 262, 276; see also Patapsco Co. v. Elder, 53 Md. 463, 464. [§462.]iCode, art. 66, sec. 8; Dircks v. Logsdon, 59 Md. 173, 179; see the statute in full. See also post, sees. 490-491. In Roberts v. Loyola Assn., 74 Md. 1, 2-6, mortgaged property in Baltimore county was by the annexation act brought into Baltimore city. The mortgage provided that the sale should be made in ac- cordance with what is now article 66 of the code, which required ad- vertisement as stated in the text. It was held that the foreclosure sale §462-463 Foreclosure of mortgages. 544 there is no newspaper published in the county. 2 The court cannot insist upon any condition of sale which the law has not made necessary, and will not therefore hold it essential to file the mortgage notes in the proceeding; but on the application of any party in interest, and indeed in its own discretion, it may order the notes to be filed as a matter of obvious caution.* Where a sale was made by the assignee of a mortgage the fail- ure to file in the proceedings the assignment or a certified copy thereof did not invalidate the sale.* §463. The bond. — The trust commences with the filing of the bond. 1 The filing of the bond is the beginning of the exercise of the power in the mortgage, 2 and is the only prelim- inary requisite to a sale. 3 When the bond is filed the proceed- ' ings are brought under the cognizance and guidance of the court. 4 Where the bond filed by the assignee of a mortgagee, by whom the sale was made, recited that the sale was about to be made by him as attorney, whereas it was made as assignee, it was held that there was no material defect, as the condition should be advertised in Baltimore city, which was the political division where the lands were situated at the time of sale; and that the sale was properly held in Baltimore city. Compare Chilton v. Brooks, 71 Md. 445, 452-453- In Warehime v. Carroll Assn., 44 Md. 512, 514-516, 519-520, the mortgage provided for an advertisement of sale in some daily news- paper published in Carroll county. There was no daily newspaper published in that county, but notice was given by advertisement in a weekly newspaper as prescribed by sec. 8, of art. 66, above quoted, and by hand bills. The court held this a proper notice under the circum- stances. 2 Roberts v. Loyola Assn., 74 Md. 1, 5. 3 Heider v. Bladen, 83 Md. 242, 244-245; "we cannot see the justice of setting aside a sale for the reason that the notes were not filed, when no application was made for that purpose, when the amount due on them is not denied, and when the ownership is not questioned." Compare the proceedings in decrees for sale under the local law for Baltimore city; post, sec. 482; Haskie v. James, 75 Md. 568, 571-572. *Western Md. Land Co. v. Goodwin, 77 Md. 271, 276, 281. iWarehime v. Carroll Assn., 44 Md. 512, 519. 2 Webb v. Haeffer, 53 Md. 187, 191. 3 Heider v. Bladen, 83 Md. 242, 243. "Warfield v. Dorsey, 39 Md. 299, 308. 545 Foreclosure of mortgages. §463-464 of the bond was that prescribed by the statute. 5 The non-con- formity of the condition of a bond to the statutory requirements may form a good ground of exception to the ratification of the sale, but is not a sufficient ground for declaring the whole proceeding void, in a collateral suit. 6 As to the time of filing the bond, the statute requires that "before any person so au- thorized shall make any such sale" he shall give bond. 7 Where the bond was filed and approved on the day of sale, and in legal presumption, before the sale was made, it was held to be in time. s If the security is insufficient the parties in interest may require other and additional security. 9 §464. Where the sale must be made. — The code provision upon this point is that all mortgage sales shall be made in the county or city where the mortgaged premises are situated. 1 This provision is mandatory and binding, and a party who proceeds under a power of sale must do so in the mode and manner pointed out by the code. Parties cannot make a contract in this matter in violation of the statutory regu- lations. 2 5 Dickerson v. Small, 64 Md. 395, 398-399; see the remarks of the court here. 6 Cockey v. Cole, 28 Md. 276, 283-286; overruling, in part, McCabe v. Ward, 18 Md. 505, 509, a case under the act of 1826, ch. 192; as to which see ante, sec. 450. 'Code, art. 66, sec. 7; see the statute in full for the terms of the bond and other matters. See also Gaither v. Tolson, 84 Md. — . 8 Hubbard v. Jarrell, 23 Md. 66, 83. 9 Dickerson v. Small, 64 Md. 395, 399. 1 Code, art. 66, sec. 15; "and where the mortgaged premises described .n any mortgage are situated in more than one county, the sale may be made in either of the counties in which the lands are situated." This provision is based upon the act of 1825, ch. 203, sec. 10; which section relates only to sales made under the act; White v. Mal- colm, 15 Md. 529, 541. Compare code, art. 16, sec. 72. 2 Webb v. Haeffer, 53 Md. 187, 190-191 ; in this case a mortgage of land in Baltimore county contained a clause .authorizing a sale in Baltimore city. This clause was held void, upon exceptions filed by the mort- gagor, and as there was therefore no valid power of sale in the mort- gage, the mortgagee could only proceed by obtaining a decree of fore- closure. See the case stated in Chilton v. Brooks, 71 Md. 445, 452-453. Compare Dirks v. Humbird, 54 Md. 399, 403, in which it was held that an objection that personal property was sold at a different place 35 §465-466 Foreclosure op mortgages. 546 §465. Terms of sale.— The statute provides that a clause may be inserted in the mortgage authorizing a sale by the mortgagee upon such terms and such contingencies as may be expressed therein. 1 The words "terms" and "contingen- cies" designate the terms as to cash or credit upon which the mortgaged property is to be sold, and the existence of circum- stances, such as default in payment, under which the mortgagee or party named in the mortgage may proceed to sell. 2 Where the mortgage did not prescribe the terms of sale, it was held that the omission did not leave the power of the mortgagee unlimited in that respect, but invested him with power to sell on reasonable terms, which might be cash or credit according to the circumstances, subject to the action of the court on the question of the ratification of the sale. 3 Where the power in a mortgage directed a sale for cash only, but the sale was made partly for cash and partly on credit, but was reported and re- garded as a cash sale, there was no departure from the pre- scribed terms. 4 §466. The report of sale. — The jurisdiction of the court becomes complete on the filing of the report of sale. Un- til then all the proceedings are ex parte} But when this is done, the equitable cognizance of the court obtains, and thereafter equitable principles, such as are applicable to sales under de- than that named in the mortgage could not be considered when made by a stranger to the contract. In Chilton v. Brooks, 71 Md. 445, 452-453, the mortgaged prem- ises were situated in Baltimore county at the time of making the mort- gage, but in Baltimore city, under the annexation act, when the prop- erty was sold. It was held that the po~wer being legal when made should be upheld unless the statute annexing the land to Baltimore city rendered the contract void, and the court held' that it did not, the statute not being retroactive.. See this point elaborated in the opin- ion. See also Roberts v. Loyola Assn., 74 Md. i, 3-6. 1 Code, art. 66, sec. 6. 2 Webb v. Haeffer, 53 Md. 187, 190. 3 Powell v. Hopkins, 38 Md. 1, 11-12; compare Reeside v. Peter, 35 Md. 220, 222. 4 Hubbard v. Jarrell, 23 Md. 66, 82-83. [§466.] * Albert v. Hamilton, 76 Md. 304, 307. 547 Foreclosure of mortgages. §466-467 crees in chancery, control the disposition 'of the case. 2 The report of sale is the first official intercourse of the person exer- cising the power of sale with the court; there is no provision for the exercise by the court of the power of revision, confirma- tion, ratification or rejection of the sale, until it has been re- ■ ported. 3 The sale is reported in order that the court may hear and determine any objections which may be filed against it by any person interested in the property. 4 The sale is to be re- ported under oath to the court having chancery jurisdiction where the sale is made. 5 §467. Proceedings upon the report of sale.— The statute provides that there shall be the same proceedings on the report of sale as if the sale were made by a trustee under a decree of the court, and the court shall have full power to hear and determine any objections which may be filed against the 2 Warehime v. Carroll Assn., 44 Md. 512, 517, quoting Wilson v. Watts, 9 Md. 356, 459. 3 Warehime v. Carroll Assn., 44 Md. 512, 519-520; it is here said that it may be doubted whether upon a mere report that the terms of sale were impracticable, or incapable of being complied with by the mort- gagee, or on a petition to modify the terms, the court would entertain jurisdiction without a sale being first actually made and reported. 4 Heider v. Bladen, 83 Md. 242, 244; Warfield v. Dorsey, 39 Md. 299, 308; Albert v. Hamilton, 76 Md. 304, 307-308, in which it is said, on page 309, that the language of the statute is very similar to that of the local law respecting decrees for sale of mortgaged property in Baltimore city, (code of public local laws, art. 4, sec. 696,) and that they should receive the same construction; and that under the local law, "the propriety of the decree as well as the validity of the sale thereunder may be inquired into and contested after the passage of the order of ratification nisi, and before the final order of confirmation has been passed." In Hubbard v. Jarrell, 23 Md. 66, 81-82, it was objected that it nowhere appeared in the proceedings that any contingency had hap- pened upon which the power to sell depended. The court said that the report might have been drawn in a more special manner; but as the mortgage and advertisement were filed, before an order of ratifica- tion was asked for or passed, everything was substantially complied with. If payment had been made, or any contingency had not oc- curred upon which the power of sale depended, the mortgagors could show it and thereby arrest the ratification of the sale. °Code, art. 66, sec. 9. §467-468 Foreclosure of mortgages. 548 sale by any person interested in the property, 1 and may confirm or set aside such sale. 3 The object of this provision is to confer upon the court the same jurisdiction, and to direct that the same proceedings should be had in a sale made under a power in a ■ mortgage as if the sale had been made under a decree of the court. Parties in interest may come in and object to the ratification of the sale, but such objections must be as to the mode and manner of the sale, and not to the proceedings under which the property was sold. Thus a creditor of the mort- gagor cannot by exceptions to the ratification of a sale made under a power in the mortgage raise a question as to whether the mortgage was fraudulent. 3 §468. Objections to the ratification. — The mort- gagors have the right in objecting to the ratification of the sale to show, if they can, that their title ought not to pass. If this were not the. case their title would be taken from them without a hearing. If the mortgage is invalid, this would be a reason why the sale should not be ratified. The objections which may be made by the mortgagor are not merely objections to the regularity of the mode in which the sale was conducted; but include objections to the validity of the mortgage. 1 If 1 Compare Warfield v. Ross, 38 Md. 85, 90; Carroll v. Kershner, 47 Md. 262, 276. In Gayle v. Fattle, 14 Md. 69, 86, quoted in Powell v. Hopkins, 38 Md. 1, 11, it is said that if the sale be made without a compliance with the requisitions of the act, when it shall have been reported, the appellee will then have an opportunity to point out the departure, and to claim whatever advantage it will give him. 2 Code, art. 66, sec. 9; Warfield v. Dorsey, 39 Md. 299, 308. While the sale is in fieri, and the funds are in the hands of the trustee, subject to the control of the court, the latter may, upon any just cause being shown affecting the title of the purchaser, vacate the sale and restore to the purchaser the money paid and the securities given for the deferred payments; Heuisler v. Nickum, 38 Md. 270, 278. 3 Patapsco Co. v. Elder, 53 Md. 463, 465; but see post, sec. 468. [§468.] iMbert v. Hamilton, 76 Md. 304, 307-308; the court said that previous expressions in our reports, taken out of their natural connec- tion, would seem to indicate a different conclusion; but that in Bass- hor v. Stewart, 54 Md. 376, on exceptions to the ratification of a mort- gage sale filed by subsequent lienors, the court considered and decided an objection alleging the invalidity of the mortgage. 549 Foreclosure of mortgages. §468-469 such objections to the validity of the mortgage are not made upon the question of the ratification of the sale, they can not be made afterward. The ratification of the sale determines that the mortgage is valid, and the parties to the proceedings are precluded from further litigation of the question. 2 The ex- action of usurious interest does not invalidate the mortgage or affect the power to sell; the court in which the proceeds are to be distributed has full authority and jurisdiction to adjust the question of interest between the parties. 3 Where the mortgage allowed the mortgagee in case of default being made to take possession of the premises before proceeding to sell, it was no objection to the sale that the assignee of the mortgagee failed to avail himself of the privilege.* §469. The title that passes. — Independently of statute, a purchaser under a sale made by a mortgagee, ac- quires precisely the same subject-matter which the mortgagee was empowered to sell, and did sell pursuant to the powers con- tained in the mortgage. 1 The statute precludes all contro- 2 Albert v. Hamilton, 76 Md. 304, 309-310; in this case a mortgagee sold under a power of sale and some of the mortgagors excepted to the ratification of the sale, on certain grounds, not including fraud; but after testimony was taken, the exceptions were overruled and the sale was ratified. Afterwards a bill was filed by some of the mortgagors to vacate the mortgage as fraudulent. It was held, pages 309-310, that the mortgagors having the right to raise the objection that the mort- gage was invalid upon exceptions to the sale, but not having done so, were concluded by the ratification of the sale, and could not thereafter raise the objection. 3 Powell v. Hopkins, 38 Md. 1, 13; Walker v. Cockey, 38 Md. 75, 78; Warfield v. Ross, 38 Md. 85, 91; Carroll v. Kershner, 47 Md. 262, 276; compare Md. Society v. Smith, 41 Md. 516, 522; Gantt v. Grindall, 49 Md. 310, 313-314; Smith v. Myers, 41 Md. 425, 434; post, sec. 484, note 8. 4 Dircks v. Logsdon, 59 Md. 173, 180. In Harnickell v. Orndorfif, 35 Md. 341, 343-344, the mortgagor objected to the ratification of the sale because the cash payment had not been made and there was not therefore a compliance with the terms of sale. As the property was sold for a price not sufficient to pay the mortgage debt, and as no part of the proceeds of sale could be paid to the mortgagor, he had no interest in the fund and no standing in court to object to the ratification. 1 Duval v. Becker, 81 Md. 537, 548-549; in this case a mortgagor before default abandoned an easement appurtenant to property mortgaged by §469-470 Foreclosure of mortgages. 550 versy as to this, by providing that the sale when confirmed by the court and the purchase money paid; shall pass all the title which the mortgagor had in the mortgaged premises at the time of the recording of the mortgage. 2 As the sale only passes the title which the mortgagor had, it follows that all other persons, not parties to the mortgage, are strangers to the sale and not affected by it. 3 The statute provides for the convey- ance of the property to the purchaser. 4 §470. Expenses of the sale. — The assignees of a mortgage in making a sale are acting for their own interests; but under a clause in the mortgage authorizing them to sell the property and apply the proceeds in the first place to the pay- ment of all expenses incident to the sale, they are entitled to all expenses reasonably necessary and proper to enable them to make an advantageous sale. Thus, they are allowed the ex- penses of the services of an auctioneer, the cost of advertising and of other reasonable methods of obtaining an adequate price. But they are not allowed, under such a clause, com- missions for making the sale. If it is the purpose of the par- ties that the mortgagee or his assignees should be paid com- missions, the mortgage should so provide. 1 him. Upon a sale under the mortgage, the purchaser was held enti- tled to the easement, being a portion of the property conveyed. 2 Code, art. 66, sec. n. Compare in general Heuisler v. Nickum, 38 Md. 270, 277-278; Judik v. Crane, 81 Md. 610, 618; Leonard v. Groome, 47 Md. 499, 504; Lee v. Early, 44 Md. 80, 94. 3 Warfield v. Ross, 38 Md. 85, 90; Patapsco Co. v. Elder, 53 Md. 463, 464-46S. In Walker v. Stone, 20 Md. 195, 197, 202, it was held that although the sale made by the mortgagee was irregular, yet it would transfer the mortgage claim to the purchaser. + Code, art. 66, sec. 13; the section is in full as follows: "After said sale has been confirmed by the court and the purchase money paid, the person making such sale shall convey the property to the purchaser, or if the vendor and purchaser be the same person, the court confirm- ing the sale shall in its order of ratification, appoint a trustee to con- vey the property to the purchaser, on the payment of the purchase money; provided, however, that said trustees shall not give a bond un- less the court shall deem it necessary, and prescribe the same in the de- cree." Johnson v. Glenn, 80 Md. 369, 370-371; Gaither v. Tolson, 84 Md. — . In regard to the allowance of commissions to the mortgagee, 551 Foreclosure op mortgages. §471 §471. Miscellaneous statutory provisions.— Other sections of this article of the code in reference to the sale pro- vide that the purchaser of property sold shall be entitled to sue out a writ of possession against the mortgagor or his suc- cessors, if the property is in their possession. 1 All purchasers shall have the same rights and remedies against the tenants of the mortgagor as the mortgagor had, and the tenants shall have the same rights and remedies against the purchasers as they would have had against the mortgagor; but no lease made after the mortgage was made shall be valid as against the pur- chaser. 2 If a sale be set aside by the court, a re-sale may be ordered to be made by the party who made the previous sale, or the court may, if justice requires it, appoint a trustee to sell the same. 3 The statute does not require that a re-sale shall be or- dered by the court; it is desirable and the better practice to ob- tain such order, but the re-sale would not be invalid without it.* A decree in personam may be passed against the mortgagor for any balance of debt and interest remaining unpaid. 5 Any sur- the question was left undecided in Frostburg Assn. v. Lowdermilk, 50 Md. 175, 176-179; it is here stated that the practice in certain circuits was different. In Mahoney v. Mackubin, 54 Md. 268, 275-276, the point was not decided, and it is stated that there was a difference of opinion among the judges. In Rappanier v. Bannon, 66 Md. un- reported, as stated in Johnson v. Glenn, 80 Md. 369, 370-371, the ques- tion was virtually decided. 1 Code, art. 66, sec. 19. 2 Code, art. 66, sec. 20; compare Russum v. Wanser, 53 Md. 92, 98. 3 Code, art. 66, sec. 10; Basshor v. Stewart, 54 Md. 376, 379-380. 4 Reeside v. Peter, 35 Md. 220, 222-223. 5 Act of 1892, ch. in, adding section 24 to art. 66, of the code; the act is in full as' follows: "If upon the sale of the whole mortgaged prop- erty by virtue of a power of sale contained in the mortgage under the provisions of this article (sixty-six), the net proceeds thereof, after the costs and expenses allowed by the court are satisfied, shall not suffice to pay the mortgage debt and accrued interest, as the same shall be found and determined by the judgment of the court upon the report of the auditor thereof, the court may upon the motion of the plaintiff, the mortgagee or his legal or equitable assignee, after due notice by summons or otherwise, as the court may direct, enter a decree in per- sonam against the mortgagor or other party to the suit or proceeding, who is liable for the payment thereof, for the amount of such deficiency; provided, the mortgagee or his legal or equitable assignee would be entitled to maintain an action at law upon the covenants contained in §471-473 Foreclosure of mortgages. 552 plus proceeds of sale may be equitably distributed. 6 §472. Sales in Baltimore city.— The code of public local laws provides that any mortgagee of property in the city of Baltimore, his assignee or executor, where a power to sell is contained in the mortgage, may proceed under article 66 of the public general laws, title "Mortgages," but notices of sale under such power shall be published in two daily newspapers in said city for the period required by law. 1 More extensive notice is thus required in such sales than in sales in the coun- ties, the requirement being that the advertisement shall be inserted in two newspapers instead of one; but twenty days notice is required in either case. 2 §473. Injunction to Stay sale-— The code provides that no injunction shall be granted to stay any sale or any pro- ceedings after any sale of mortgaged premises under this article, unless the party praying the injunction shall be also a party to the mortgage, or shall claim under such party a right to or inter- est in the mortgaged premises, derived or accruing after the re- cording of such mortgage, nor unless such party shall on oath allege that the mortgage debt and all interest due thereon has been fully paid; or that some speci- fied part has been paid and that credit therefore has the mortgage for said residue of said mortgage debt so remaining un- paid and unsatisfied by the proceeds of such sale or sales; which decree shall have the same effect and be a lien as in the case of a judgment at law, and may be enforced only in like manner by a writ of execution in the nature of a writ of fieri facias by attachment or otherwise." Com- pare the proceedings under a foreclosure by formal proceedings, ante, sec. 449. 6 Code, art. 66, sec. 12; the section is in full as follows: "Upon a sale of such mortgaged premises, any person claiming an interest in the equity of redemption may apply to the court confirming the sale to have the surplus of the proceeds of sale, after payment to the mortgagee of his claim and expenses, paid over to such person, or so much thereof as will satisfy his claim, and the court shall distribute such surplus equitably among the claimants thereto." See also Ducker v. Belt, 3 Md. Ch. 13, 17; Dance v. Dance, 56 Md. 433, 438; Lee v. Boteler, 12 G. & J- 323, 327-328. 1 Code of public local laws, art. 4, sec. 702; Chilton v. Brooks, 71 Md. 445, 453- 2 Roberts v. Loyola Assn., 74 Md. 1, 4, 6. 553 Foreclosure of mortgages. §473-474 been refused; or that some fraud (to be stated in the bill), was used by the mortgagee or with his knowledge, in obtaining the mortgage. 1 This provision is said to be only declaratory of the general principle of equity. 2 If it appears that the mortgage debt has been fully paid, an injunction would lie, apparently without regard to the statute. 3 The bill for an injunction should contain the allegations mentioned in the act. 4 The statute relates only to sales of mortgaged premises made under a power of sale; it has no application to cases of sales made under a consent to a decree. 6 Provisions are also made for the giving of bond, and for a dissolution of the injunction. 6 Sale under an assent to a decree. §474. The statutory provisions. — Special statutory provisions have been made for the sale of mortgaged property in Baltimore city. These provisions, now contained in the code of public local laws, 1 are based upon the act of 1833, ch. 181, 2 which was adopted as stated in the act, 3 "in order to the facili- tating the enforcement of mortgages of real property and estate in the city of Baltimore." The provisions of this act, as codi- fied, are now used in perhaps all mortgages in the said city; but the method of foreclosure as practiced in the counties of Maryland, under article 66 of the public general laws, may also be employed in the city. 4 The second section of the act 1 Code, art. 66, sec. 16; see the section in full. Compare Heck v. Remka, 47 Md. 68, 75; Powell v. Hopkins, 38 Md. 1, 11. Suggestions have been made as to how far it is competent for the legislature to thus limit the powers of courts of equity in the exercise of their jurisdiction; Powell v. Hopkins, 38 Md-. 1, 14; Walker v. Cockey, 38 Md. 75, 81 ; Barrick v. Horner, 78 Md. 253, 259. Compare McNiece v. Eliason, 78 Md. 168, 179. 2 Powell v. Hopkins, 38 Md. 1, 14. 3 Gantt v. Grindall, 49 Md. 310, 313-314; Barrick v. Horner, 78 Md. 253, 258-259. 4 Gayle V. Fattle, 14 Md. 69, 84-85. 'Abrahams v. Tappe, 60 Md. 317, 322. 6 Code, art. 66, sees. 18 and 17. [§474.] J Code of public local laws, art. 4, sees. 692-704. 2 Black v. Carroll, 24 Md. 251, 254. 3 In section 2. ••See ante, sec. 472. The usual form of mortgage in Baltimore city contains both an §474 Foreclosure of mortgages. 554 provided that in all cases of conveyances by way of mortgage of lands or hereditaments or chattels real in said city, "and where in the said conveyances the mortgagor shall declare his assent to the passing of a decree," it should be lawful for the mortgagees or their assigns, at any time after filing the same to be recorded, to submit to the court the conveyances or certi- fied copies, and the court "may thereupon forthwith decree, that the mortgaged premises shall be sold at any one of the periods limited in said conveyances for the forfeiture of said mortgages or limited for a default of the mortgagors, and on such terms of sale" as to the court should seem proper. 5 This act contained no authority to decree the sale of personal chat- tels; 6 but by the act of 1890, ch. 197, conveyances of "goods and chattels personal" were included in the terms of the statute. 7 Except for this change, the present form of the statute is sub- stantially that of the original act. 8 assent to a decree, as provided for by the code of public local laws, and a power to the mortgagee or his attorney, to sell, as authorized by code, art. 66, sec. 6; ante, sees. 452-473. 5 Act of 1833, ch. 181, sec. 2; stated in Williams v. Williams, 7 G. 302, 303-304; Eichelberger v. Harrison, 3 Md. Ch. 39, 41-42. 6 Bernstein v. Hobelman, 70 Md. 29, 37; Cronise v. Clark, 4 Md. Ch. 403, 408. 7 Act of 1890, ch. 197, amending code of public local laws, art. 4, sec. 692, "so as to include goods and chattels in the decrees for sales by con- sent." 8 The present form of the statute, as thus amended by the act of 1890, ch. 197, is as follows: "In all cases of conveyances of lands or heredita- ments or of chattels real, or goods and chattels personal, situate in the said city, wherein the mortgagor shall declare his assent to the passing of a decree for the sale of the same, it shall be lawful for the mortgagee or his assigns at any time after filing the same to be recorded, to submit to either of the circuit courts of Baltimore city the said conveyances or copies thereof under seal of the superior court, and the circuit court to which the same is so submitted, may thereupon forthwith decree that the mortgaged premises shall be sold at any one of the periods limited in said conveyances for the forfeiture of said mortgages or lim- ited for a default of the mortgagors, and on such terms of sale as to the said court may seem proper, and shall appoint by said decree a trustee or trustees for making such sale, and shall require bond and security for the performance of the trust as is usual in cases of sales of mortgaged premises." 555 Foreclosure op mortgages. §475-476 §475. Nature of jurisdiction.— The act is applicable exclusively to the city of Baltimore. 1 It gives a very summary remedy for the benefit of mortgagees and strict compliance with its provisions is necessary. 2 The jurisdiction is expressly limited to cases where, in the mortgage, the mortgagor shall so declare his assent to the passing of a decree, in conformity with the provisions of the act, as to authorize the court, before default, forthwith to decree a sale of the mortgaged premises. 3 The court has no power to pass any decree which is not in con- formity with the conditions of the mortgage, and embraced in the terms of assent to the decree contained in the mortgage itself. 4 It was not the intention, however, to limit the general jurisdiction of the courts of chancery in cases of mortgages. 5 A decree for the sale of property under the statute, although passed ex parte, is conc'usive against an attack in another case in another court on the question of fraud in obtaining the mortgage, the decree operating as a protection to the mort- gagee against inquiry. 6 §476. Form of the proceeding; parties. — The pro- ceeding provided for is an ex parte one, until after the decree and sale under the decree. 1 To obtain the decree it is only necessary to file the mortgage and a petition praying for a de- cree; no summons is necessary and no notice is required to be 1 Hays v. Dorsey, 5 Md. 99, 101. In Abrahams v. Tappe, 60 Md. 317, 322, it was said that sec. 15, of art. 64, of the code of public general laws of the code of i860, (code of 1888, art. 66, sec. 16,) in reference to injunctions to stay sales, is not applicable to decrees passed under the local law for Baltimore city; see ante, sec. 473. 2 Gatchell v. Presstman, 5 Md. 161, 164. 3 Kenly v. Wierman, 18 Md. 302, 303-304; in this case the clause in the mortgage was insufficient to authorize a decree under the statute. The case was construed in Black v. Carroll, 24 Md. 251, 257. See Con- naughton v. Bernard, 84 Md. — . *Robertson v. American Assn., 10 Md. 397, 406. 'Williams v. Williams, 7 G. 302, 304. 6 McDowell v. Goldsmith, 2 Md. Ch. 370, 384; affirmed in McDowell v. Gdldsmith, 6 Md. 319, 337; stated in Trayhern v. Colburn, 66 Md. 277, 279. [§476.]iBlack v. Carroll, 24 Md. 251, 255; Eichelberger v. Harrison, 3 Md. Ch. 39; Seebold v. Lockner, 30 Md. 133, 138; Albert v. Hamilton, 76 Md. 304, 309. §476-477 Foreclosure of mortgages. 556 given to anyone, 2 whether the mortgagor 3 or a person claiming under him. 4 The statute provides a summary mode of reach- ing a decree by dispensing with the subpoena and answer. 5 The statute contemplates the mortgagee or his assignee as the per- son to file the petition ; and where the mortgage is made to a mortgagee in trust for certain persons, the beneficiaries are not required to be made parties. 6 Neither prior 7 nor subsequent 8 mortgagees or incumbrancers need be made parties to the proceedings. §477. When a decree may be passed. — The stat- ute provides that the mortgagee may apply to the court for a de- cree at any time after filing the mortgage to be recorded, and that the court may decree a sale "at any one of the periods lim- ited in said conveyances for the forfeiture of said mortgages, or limited for a default of the mortgagors." The meaning of this provision is that where the decree is entered before default, no sale shall be made until something is due upon the mortgage. 1 In such cases the court enters up a decree prospectively with 2 Hays v. Dorsey, 5 Md. 99, 101. 3 Ing v. Cromwell, 4 Md. 31, 36; Eichelberger v. Harrison, 3 Md. Ch. 39, 40; Equitable Assn. v. Becker, 45 Md. 632, 634. 4 Kauffman v. Walker, 9 Md. 229, 233-234, 241. . 5 Williams v. Williams, 7 G. 302, 305. 6 Hays v. Dorsey, 5 Md. 99, 101-102. 'Tome v. Merchants' Co., 34 Md. 12, 14; compare Speed v. Smith, 4 Md. Ch. 299, 304. 8 Carroll v. Kershner, 47 Md. 262, 276. See also Hughes v. Riggs, 84 Md. — . iBlack v. Carroll, 24 Md. 251, 255-256; and see Schaefer v. Amicable Co., 47 Md. 126, 127. An instance is in Speed v. Smith, 4 Md. Ch. 299, 302-303, in which the mortgage was made on April 24/ 1848; on May 5, 1848, an application was made to the court, as authorized by the act "for a sale of said property in case the debt with the interest thereon, should not be paid according to the stipulations of the mortgage, and a decree for that purpose passed on the same day authorizing a sale of the mort- gaged premises when the time limited for the payment of the money should have elapsed." In July, 1851, the property was sold under the decree, after default. In Kauffman v. Walker, 9 Md. 229, 233, it was said by the lower court that "consent is given by the mortgagor to enter up a decree against him at any time, with liberty to enforce the payment by a sale, 557 Foreclosure op mortgages. §477 reference to the possible default of the mortgagor, when in fact no such default may ever happen. 2 But there is nothing in the language that limits the remedy of the mortgagee to the period before the forfeiture. The proceeding for a decree is author- ized to be taken at any time after the recording of the mortgage. The mortgagor is protected against a sale until he makes de- fault, but after a default, as well as before, the mortgagee is entitled to proceed for a decree ; 3 this right is specially provided for by the act of 1864, cri - 124, now section 703 of article 4 of the code of public local laws.* The usual form of decree pro- vides that the mortgaged property "be sold, at or after any one of the periods limited, in the mortgage filed, for the forfeiture of said mortgage." 5 when by a statement, verified as the act directs, it is shown by the mort- gagee that the claim or any part of it has matured, and still remains due and unsatisfied." In Ing v. Cromwell, 4 Md. 31, 36, it was said that the court was only restricted, according to the act, in fixing the time for a sale, "to one of the periods limited in said conveyance for the forfeiture of said mortgage." • In Carroll v. Kershner, 47 Md. 262, 277, it was held that the fact that the decree was obtained pending an action of ejectment for the property was not a ground for setting aside a sale, in the absence of combination, collusion and fraud; compare McNiece v. Eliason, 78 Md. 168, 178-179, where the sale was under a power contained in the mort- gage. 2 Williams v. Williams, 7 G. 302, 306. 3 Black v. Carroll, 24 Md. 251, 255-256; Brooks v. Hays, 24 Md. 507, 518; Franz v. Teutonia Assn., 24 Md. 259, 269-270; Seebold v. Lockner,. 30 Md. 133, 138. In Black v. Carroll, 24 Md. 251, 256-257, it was argued in 1865. that no power to pass a decree after default was conferred by the act of 1833, ch. 181, because the act of 1839, ch. 9, sec. 3, provided that the decree might be passed as well after as before the period limited; and that as this act was omitted from the code of i860, public local laws, a decree could not be passed after default under the code provisions. But the court held that such a decree might be passed under the act of 1833, ch. 181, and that the act of 1839, ch. 9, sec. 3, was merely declaratory of the previous law, and that the omission of the act of 1839 from the code made no change in the law. The case of Kenly v. Wierman, 18 Md, 302, was stated and distinguished. *See the section in full. B Carey's Forms, No. 743, page 572. §478-479 Foreclosure of mortgages. 558 §478. The decree for sale. — The court is authorized to appoint by the decree, a trustee or trustees for making the sale. 1 The decree prescribes the terms of sale, which may be such as to the court shall seem proper; under this clause, the court may order the terms of sale to be cash. 2 The court is not authorized, by its decree, to determine the amount due on the mortgage. 3 , §479. Appeal from the decree. — An appeal may be taken from the decree directing a sale, before other proceedings are had. 1 Such a decree is not one passed in the exercise of a special and limited jurisdiction, which in such cases excludes the right of appeal; nor is the decree one by consent, as the consent is only to dispense with the intermediate proceedings, not that the decree shall be binding at all hazards. 2 On such an appeal the court will review the proceedings as presented by the record, examine the terms and conditions of the mortgage and determine whether the decree is in conformity therewith. 3 Ob- jections to the proceedings as not within the meaning of the act are a proper subject for litigation and appeal. 4 Thus an appeal taken from a decree for the sale of personal chattels, un- der the statute prior to the act of 1890, ch. 197, would neces- 1 Code, public local laws, art. 4, sec. 692. Under the old law, where a decree for sale of the mortgaged property had been passed and the mortgagor applied for the benefit of the insolvent law, the trustee in insolvency and not the trustee under the decree, was entitled to sell the property; Zeigler v. King, 9 Md. 330; White v. Malcolm, 15 Md. 529, 545-546; Mackubin v. Boarman, 54 Md. 384, 385-386; but this has been changed by statute, act 1892, ch. 658; see ante, sec. 460, and note, for the statute in full; compare Queen City Assn. v. Price, 53 Md. 397, 401. 2 Ing v. Cromwell, 4 Md. 31, 36; compare Powell v. Hopkins, 38 Md. 1, 11-12. s Robertson v. American Assn., 10 Md. 397, 407. [§479-] 1 Robertson v. American Assn., 10 Md. 397, 406; Williams v. Williams, 7 G. 302, 305-306; Hays v. Dorsey, 5 Md. 99, 101; White v. Malcolm, 15 Md. 529, 540; Bernstein v. Hobelman, 70 Md. 29, 37; Black v. Carroll, 24 Md. 251, 255. 2 Williams v. Williams, 7 G. 302, 305-306. 8 Robertson v. American Assn., 10 Md. 397, 406; Williams v. Wil- liams, 7 G. 302, 306. ^Williams v. Williams, 7 G. 302, 305. 5 59 Foreclosure of mortgages. §479-480 sarily be reversed, as the statute did not authorize a sale of per- sonal chattels. 5 §480. Suspending the sale.— Although the proceed- ings are ex parte until after the decree and sale, and objections to the sale cannot be entertained until then, yet there is nothing in the statute or the nature of the proceedings to prevent the court from suspending the sale upon petition, and referring the papers to an auditor, to state an account, or even to grant an injunction. 1 Such proceedings may be had when the mort- gagor is not in default; 2 and where the continuance in default for a certain period is a condition precedent to the sale under the terms of the mortgage, the court would arrest the sale un- less such default were shown to exist. 3 An original bill by a third party having an interest in the property, praying an in- junction to restrain a sale, has also been sustained, in a suit against the mortgagee, and the trustee appointed by decree, where the mortgage had become inoperative. 4 An order sus- B Bernstein v. Hobelman, 70 Md. 29, 37. a Equitable Assn. v. Becker, 45 Md. 632, 634-635. In Schluderberg v. Robertson, 60 Md. 602, 60s, the assignee of the mortgagor having paid off the debt and costs, was not only entitled to have the attempted sale restrained, but was entitled to have the de- cree of foreclosure entered satisfied. 2 As alleged in Equitable Assn. v. Becker, 45 Md. 632, 633; Gustav Bldg. Assn. v. Kratz, 55 Md. 394, 395-396- In Eichelberger v. Harrison, 3 Md. Ch. 39, 41-42, the chancellor suspended the sale upon the mortgagor's petition, and after proof taken and a hearing, rescinded the order suspending the sale, but stated that he would have sent the papers to the auditor to state an account if the proof in the cause would have justified it; see also Ing v. Cromwell, 4 Md. 31, 32; Trayhem v. Colburn, 66 Md. 277, 280-281. In Gustav Assn. v. Kratz, 55 Md. 394, 396-397, a decree was passed for the sale of property, and the sale was advertised. The mortgagor, alleging that there was no default, obtained an order sus- pending the sale and sending the case to the auditor to state an account. After determining upon exceptions to the account, the court passed an order allowing the mortgagor thirty days within which to make pay- ment. This order was held proper. 3 Schaefer v. Amicable Co., 47 Md. 126, 128. ^Abrahams v. Tappe, 60 Md. 317, 322-324. In Cronise v. Clark, 4 Md. Ch. 403, 404-406, an original bill was §480-482 Foreclosure of mortgages. 560 pending a sale and referring the papers to an auditor to state an account is not final, settles no rights and is not the subject of an appeal ; 5 but an appeal has been entertained from an order dismissing a petition to arrest a sale. 6 §481. Trustee's bond. — The provisions are that the court "shall require bond and security for the performance of the trust, as is usual in cases of sales of mortgaged premises;" 1 and that "the trustee or trustees so appointed, after having given bond with security may, after the arrival of the period limited by the decree for a sale, sell agreeably to the terms of said decree, the mortgaged property or any part thereof." 2 The bond need not be filed before the publishing of the adver- tisement of sale; it may be filed even on the day of sale, but be- fore the sale. 3 A sale is not void because the trustee omits to give bond prior to the sale ; and it is not clear that the purchaser can urge such an objection to the sale. 4 §482. Verified statement of claim; mortgage note. — The statute provides that "the mortgagees, their ex- ecutors, administrators or assigns, if the mortgage claim shall have been assigned before such sale, or their duly constituted agent or attorney, after the arrival of the period aforesaid," shall verify "by their oath a statement of the amount of said mortgage claim remaining due," and such statement shall be filed in the court. 1 Where a mortgage was made to a trustee for certain filed to restrain the foreclosure of a mortgage, the plaintiff alleging her infancy. 6 Equitable Assn. v. Becker, 45 Md. 632, 635. e Schaefer v. Amicable Co., 47 Md. 126, 127-129. a Code of public local laws, art. 4, sec. 692. 2 Code of public local laws, art. 4, sec. 693. "Brooks v. Hays, 24 Md. 507, 518. 4 Speed v. Smith, 4 Md. Ch. 299, 309-310; approved in Brooks y. Hays, 24 Md. 507, 518-51°; in the former case the chancellor declined to pass a final order ratifying the sale until the trustee filed his bond; which, being done, the sale was ratified. See also post, sec. 489. [§482.]iCode of public local laws, art. 4, sec. 693; act of 1833, ch. 181, sec. 3; Hays v. Dorsey, 5 Md. 99, 102; Gatehell v. Presstman, 5 Md! 161, 163. The purpose of the statute is to secure a sworn statement of the amount due after the forfeiture and before the time of sale; Brooks v Hays, 24 Md. 507, 518. 561 Foreclosure of mortgages. §482 named persons and the mortgage provided that the trustee should make the sale and apply the proceeds to the payment of the debt and interest, the trustee was held the proper party to make the affidavit. 2 The statute requires the statement verified by affidavit to be filed "before" the sale; it need not therefore be filed before the decree, 3 but may be filed either before or after.* It must, however, be filed before the sale. 5 The fail- ure to file may be taken advantage of upon the question of final ratification, by the mortgagor or by the purchaser." The statement of the amount due is not conclusive; the amount actually due is open to examination on proof, either before the sale or after the order of ratification nisi. 7 If the statement is erroneous in not showing the true amount due it is open to correction when the account is stated by the auditor, but fur- 2 Hays v. Dorsey, s Md. 99, 102. Under the act of 1833, ch. 181, sec. 3, the affidavit was to be made before the chancellor or a judge of Baltimore county court; or, under the act of 1839, ch. 9, sees. 1 and 2, before a justice of the peace, notary public, &c; under the code of i860, public local laws, art. 4, sec. 783, the affidavit was to be made before the judge; by the act of 1861, ch. 76, it might be made before the judge, justice of the peace, &c. The last mentioned statute required that the official character of the justice of the peace should be certified by the clerk of the superior court, although the affidavit was-of course used in Baltimore city; under the act of 1880, ch. 216, being, in the main, section 693 in the code of 1888, the affidavit may be made before the judge of the court, or a justice of the peace (in the latter case, if the affidavit is made outside of the city, the official character being certified by a clerk of court), or before any person out- side of the State authorized to take acknowledgments of deeds. 3 Hays v. Dorsey, 5 Md. 99, 102; see Connaughton v. Bernard, 84 Md. — . 4 Robertson v. American Assn. 10 Md. 397, 407. 5 Gatchell v. Presstman, 5 Md. 161, 163; Eichelberger v. Harrison, 3 Md. Ch. 39, 40; Cronise v. Clark, 4 Md. Ch. 403, 408; Brooks v. Hays, 24 Md. 507, 518, in which latter case the statement and affidavit were filed with the petition for the sale of the mortgaged property. e Gatchell v. Presstman, 5 Md. 161, 163-164; in this case the affidavit was filed after the sale. The surviving mortgagor gave his consent to the ratification of the sale, notwithstanding the failure to file the affi- davit in due time, but the purchasers excepted. The court set the sale aside, holding that the ratification and the rights of the purchasers should not be dependent upon the willingness of the mortgagor to as- sent to the informal proceedings. See Connaughton v. Bernard, 84 Md. — . 'Robertson v. American Assn., 10 Md. 397, 407; Schaefer v. Ami- cable Co., 47 Md. 126, 128. 36 §482-484 Foreclosure of mortgages. 562 nishes no reason for setting aside the sale. 8 The statute does not require the mortgage note to be filed with or made part of the statement of the mortgage claim, or to be exhibited in court before the sale, or at any other time; and the practice prevailing in Baltimore city to require the exhibition of the mortgage note before the sale, in connection with the affidavit of claim, is not a necessary, although a prudent, practice. 9 §483. Report of sale; and other statutory pro- visions. — The statute provides that the trustee or trustees shall report the sales to the court for its consideration and rati- fication or rejection; and such orders shall pass therein touch- ing such ratification as are usual on sales of mortgaged prop- erty in said court. 1 Any allegations may be made, and proof under the orders of the said court exhibited, and a trial of the allegations had, as the court shall prescribe, to show that the sales ought not to have been made f and the court upon being satisfied of the truth of said allegations, shall reject and set aside the sale. 3 Other sections provide for the duties of the clerk; entries on the docket, by the persons entitled to assign the mortgage claim, of the use and benefit of the decree; entries of the satisf action of the decree ; the appointment of other trus- tees ; and the distribution of the proceeds of sale. 4 §484. Exceptions to the ratification of the sale.— The propriety of the decree may be inquired into upon excep- tions to the ratification of the sale ; and on appeal from the ac- 8 Md. Perm. Society v. Smith, 41 Md. 516, 521-522; see the form of statement in this case, and in Haskie v. James, 75 Md. 568, 570. 9 Haskie v. James, 75 Md. 568, 571-573- Compare the proceedings in mortgages containing a power of sale; ante, sec. 462. 1 Code of public local laws, art. 4, sec. 695. 2 Code of public local laws, art. 4, sec. 696. These allegations are those made against sales after they are reported; Equitable Assn. v. Becker, 45 Md. 632, 634. 3 Code of public local laws, art. 4, sec. 697; and in such case no part of the costs or expenses or trustee's commissions shall be chargeable upon the property or the mortgagors or their assigns. *Code of public local laws, art. 4, sees. 698-701. Entries of satisfac-. tion of decrees, and discharge of mortgage claims, should be "made by the persons entitled to receive said claims;" sec. 700, which also makes other provisions in reference to the entries. 563 Foreclosure of mortgages. §484 tion of the lower court such exceptions, and the validity of the sale made under the decree, may be determined in the same manner. 1 The objection that the mortgagors were infants may be raised by them by exception to the ratification of sale; 2 simi- larly the objection that the mortgagor has paid the notes. 3 The rights of third parties are to be inquired into on the question of the ratification of the sale, and not before. 4 While the sale is in fieri and the funds are in the hands of the trustee, upon any just cause being shown, affecting the title of the purchaser, the court may vacate the sale and restore to the purchaser any money paid on account and securities given. 5 Ordinary pru- dence on the part of the purchaser requires him to demand the production of the mortgage note before the sale is ratified ; and upon failure to comply with this reasonable demand, the court would not compel the purchaser to take the property and pay his money. 6 When the funds come to be distributed, the mort- gagor has the right to demand the surrender of the notes before the mortagee or the owners of the mortgage debt are entitled to any of the proceeds. 7 The quesuon as to usury in the mort- gage can only arise upon the statement of the final account of the auditor; it cannot be urged as an objection to the ratifica- tion of the sale. s 1 Black v. Carroll, 24 Aid. 251, 255; Eichelberger v. Harrison, 3 Md. Ch. 39; Seebold v. Lockner, 30 Md. 133, 138; Albert v. Hamilton, 76 Md. 304, 309; Hughes v. Riggs, 84 Md. — . In Bernstein v. Hobelman, 70 Md. 29, 37, objection was made to a decree as improperly passed, on exceptions to the ratification of the sale. The court said: "of course if the decree was erroneous, it could not be held that the sales ought to have been made." In this case the validity of the mortgage was attacked. 2 Monumental Assn. v. Herman, 33 Md. 128, 134; or by original bill, as in Cronise v. Clark, 4 Md. Ch. 403, 404-406; compare Speed v. Smith, 4 Md. Ch. 299, 304. 3 Hays v. Dorsey, 5 Md. 99, 102. But in such a case the court would suspend the sale upon petition; see ante, sec. 480. 4 Hays v. Dorsey, 5 Md. 99, 101; compare Equitable Assn. v. Becker, 45 Md. 632, 634. 5 Heuisler v. Nickum, 38 Md. 270, 277-278. 6 Haskie v. James, 75 Md. 568, 572. Compare act of 1892, ch. 392. 7 Hays v. Dorsey, 5 Md. 99, 102. 8 Md. Society v. Smith, 41 Md. 516, 522; Equitable Assn. v. Becker, 45 Md. 632, 634; Carroll v. Kershner, 47 Md. 262, 276; compare War- field v. Ross, 38 Md. 85, 91; Powell v. Hopkins, 38 Md. 1, 13; Smith v. Myers, 41 Md. 425, 434; ante, sec. 468, note 3. §485 Foreclosure of mortgages. 564 §485. Effect of the ratification.— The statute pro- vides 1 that "such sales and the conveyances thereupon shall have the same effect, if finally ratified by said court, as if the same had been made under decrees between the proper parties in relation to the mortgages, and in the usual course of said court." If the proceedings are brought under the jurisdiction of the court and the sale be duly ratified, the same legal intend- ment and construction are to be applied thereto as if the sale 'had been made by virtue of an ordinary decree, and it can no more be called in question in any collateral proceeding, than a sale made under any other decree of the court. 2 1 Code, public local laws, art. 4, sec. 694. 2 Morrill v. Gelston, 34 Md. 413, 420. The purchaser acquires the interest of the parties to the cause; Heuisler v. Nickum, 38 Md. 270, 277-278. When leasehold property is sold under foreclosure the taxes and ground rent due thereon at the time of the sale must be paid out of the proceeds of sale before the purchaser takes a good title; Stewart v. Clark, 60 Md. 310, 311. CHAPTER XXVI. SALES UNDER DECREES. 3486 487. 489. 490. 491. 492. 493- 494- 495- 496. 497- 498. 499- 500. 501. 502. 503- 520. 521. 522. 523- 528. 529- 530. The court is the vendor. Nature of the office of trustee. Decree takes possession of property. Trustee's bond. The advertisement. Description of property. Bids. Duty of trustee in making sale. Compliance with modal regulations. Waiver of non-compliance. Trustee's report of sale. Order nisi on report of sale. Purchaser's right to con- firmation of sale. Purchaser's right to re- jection of sale. Parties' right to rejection of sale. Objections to the title. Incumbrances on the property. Want of jurisdiction; er- roneous decree. Proceedings against Proceedings independ- ently of statute. Attachment against pur- chaser. Resale at risk of pur- chaser. The code provisions; at- tachment. 504. Inadequacy of price. 505- Inadequacy of price with other circumstances. 506. Deficiency of land. 507. When abatement may be had, and how. 508. Certain other objections to the ratification. 509. The exceptions. 510. Final ratification. 511- Objections after final rat- ification. 512. Ownership before and after final ratification. 513. Acquisition of title by purchaser. 514- Payments by the pur- chaser. 515- Duty of trustee in respect to proceeds. 516. Title of purchaser on re- versal of decree. 517- Collateral attack upon purchaser's title. 518. Rights of incumbrancers, not parties, to proceeds of sale. 519- Miscellaneous. ;faui .ting purchaser. 524- Statutory resale at risk of former purchaser. 525- Preliminary proceedings. 526. Disposition of proceeds of sales. 527. Decree in personam against married woman. Enforcing delivery of possession. Inherent equity jurisdic- 531. tion. Against whom proceed- 532. ings may be had. The original statutory 533. provision. Enlargement of the stat- utory provision. Proceedings under the statute. The present statute. §486 SALES UNDER DECREES. 566 §486. The court is the vendor.— In all sales made un- der the authority of a decree of a court of equity, the court is the vendor, acting for and in behalf of all parties interested. 1 The contract of sale is a transaction between the court as ven- dor, and the purchaser; 2 and the contract is never regarded as consummated until it has received the sanction of the court. 3 1 Schindel v. Keedy, 43 Md. 413, 417-418; Hammond v. Hammond, 2 Bl. 306, 360; Andrews v. Scotton, 2 Bl. 629, 636-642; Sewall v. Costi- gan, 1 Md. Ch. 208, 209; Harrison v. Harrison, I Md. Ch. 331, 332; Warfield v. Dorsey, 39 Md. 299, 302; Iglehart v. Armiger, 1 Bl. 519, 527; Speed v. Smith, 4 Md. Ch. 299, 309; Hurt v. Stull, 4 Md. Ch. 391, 393; Dawes v. Thomas, 4 G. 333, 339; Conroy v. Carroll, 82 Md. 127, 128; Hanover Ins. Co. v. Brown, 77 Md. 64, 71; Lurman v. Hubner, 75 Md. 268,273; Bowdoin v. Hammond, 79 Md. 173,178; Johnson v. Hines, 61 Md. 122, 131; Fowler v. Jacob, 62 Md. 326, 329-330; State v. Second Nat'i Bank, 84 Md. — . Compare Deford v. Macwatty, 82 Md. 168, 177- 178. In Andrews v. Scotton, 2 Bl. 629, 637, the distinction between a trustee's sale under a decree in equity, and a sheriff's sale under a fieri facias, is considered; and see also Harrison v. Harrison, 1 Md. Ch. 331, 335. In Wampler v. Shipley, 3 Bl. 182, 183, it was said that if there be any fraud, mistake or misapprehension in the sale the court alone grants the relief; hence, where a purchaser gave his notes for the pur- chase money and upon default the trustee sued him before a justice of the peace, the latter could not pronounce upon the consideration for the notes failing, because of some fraud or mistake on the part of the trustee. 2 Harrison v. Harrison, 1 Md. Ch. 331, 332; Warfield v. Dorsey, 39 Md. 299, 304; Goldsborough v. Ringgold, 1 Md. Ch. 239, 241; Gibbs v. Cunningham, 1 Md. Ch. 44, 49-50; affirmed in Cunningham v. Schley, 6 G. 207, 231; Hurt v. Stull, 4 Md. Ch. 391, 393; Wagner v. Cohen, 6 G. 97, 102; Glenn v. Clapp, 11 G. & J. 1, 8; Bolgiano v. Cooke, 19 Md. 375, 391; Holthaus v. Nicholas, 41 Md. 241, 265; Con- roy v. Carroll, 82 Md. 127, 128; Lurman v. Hubner, 75 Md. 268, 273; Bowdoin v. Hammond, 79 Md. 173, 179; State v. Second Nat'l. Bank, 84 Md. — . 3 Schindel v. Keedy, 43 Md. 413, 418; Warfield v. Dorsey, 39 Md. 299, 304, 308; Speed v. Smith, 4 Md. Ch. 299, 309; Wagner v. Cohen, 6 G. 97, 102; Brewer v. Herbert, 30 Md. 301, 311; Hanover Co. v. Brown, 77 Md. 64, 71; Lurman v. Hubner, 75 Md. 268, 273; Andrews v. Scotton, 2 Bl. 629, 637; Richardson v. Jones, 3 G. & J. 163, 186; Har- rison v. Harrison, 1 Md. Ch. 331, 335; Bowdoin v. Hammond, 79 Md. 173, 179; Warehime v. Graf, 83 Md. 98, 102; Johnson v. Hines, 61 Md. 122, 131. 567 Sales undek decrees. §486-487 Before ratification the transaction is merely an offer to pur- chase, but which has not been accepted.* " Such a sale is not within the statute of frauds, and no memorandum in writing is necessary. §487. Nature of the office of trustee.— The trustee is the mere hand, 1 agent 2 or officer 3 of the court, acting as an at- torney under a special delegated authority. 1 He has not by virtue of his office any title to the property decreed to be sold, *Hanover Ins. Co. v. Brown, 77 Md. 64, 71; Bowdoin y. Hammond, 79 Md. 173, 178-179; see also Speed v. Smith, 4 Md. Ch. 299, 309. 5 Warfield v. Dorsey, 39 Md. 299, 302-308; Harrison v. Harrison, 1 Md. Ch. 331, 334-336; Warehime v. Graf, 83 Md. 98, 102, in which it was also held that the same rule applies to executors' sales. Compare Moore v. Taylor, 81 Md. 644, 647. Equitable Association v. Becker, 45 Md. 632, 634; Waring v. Turton, 44 Md. 535, 548. Compare post, sec. 612. 2 Andrews v. Scotton, 2 Bl. 629, 641; Gibbs v. Cunningham, 1 Md. Ch. 44, 49; Bolgiano v. Cooke, 19 Md. 375, 391; Latrobe v. Herbert, 3 Md. Ch. 375, Z77', Kelso v. Jessop, 59 Md. 114, 120; and other cases. 3 Warfield v. Dorsey, 39 Md. 299, 302; Kauffman v. Walker, 9 Md. 229, 241; Boteler v. Brookes, 7 G. & J. 143, 150; Penn v. Brewer, 12 G. & J. 113, 116; .and other cases. 4 Harrison v. Harrison, 1 Md. Ch. 331, 332; Sewall v. Costigan, 1 Md. Ch. 208, 209. In Penn v. Brewer, 12 G. & J. 113, 116-117, it is held that a trus- tee appointed by the court is an officer of the court, acting under its direction and authority; and so far as concerns matters of equitable jurisdiction as to what he does, or ought to do, in discharge of his du- ties, is alone responsible to that court. Compare Brown v. Wallace, 4 G. & J. 479, 509; Snyder v. Snyder, 1 Md. Ch. 295, 296. Code, art. 16, sec. 200, provides that in all cases where a decree for a sale passes, the court may appoint a trustee to make such sale; compare Dorsey v. Thompson, 37 Md. 25, 45; In Gibson's case, I Bl. 138, 139-143, it was said that it had been for a long time the pract.ice of the court in a great variety of cases to have its decrees and orders carried into effect by a kind of occasional executive agents, called trustees. In whatever way it may have origi- nated, the power to employ such agents, was recognized and affirmed by legislative enactments. Widows have been appointed in order to save the commissions for them; compare Simmons v. Tongue,3 Bl. 341, 343, 348; Glenn v. Wootten, 3 Md. Ch. 514, 515; no one who is not a resident may be appointed trustee; see also Morgan's case, 3 Bl. 332, 335; nor infants, nor officers of the court. The trustee is appointed during the pleasure of the court and may be removed. Where the §487 Sales under decrees. 568 or any interest in it, or in the proceeds of sale. He is not ap- pointed to protect the rights of the different claimants to the money in his hands, or to represent them in any controversy. His functions are prescribed and limited by the decree which appoints him. The difference is great between him and a conventional trustee, holding title and so far occupying the position of owner. 5 A trustee appointed by decree is not the trustee of the parties to the case, but the trustee of the court. 6 He is a person of legal constitution, with legal duties, and he acts altogether as a legal officer. 7 parties are silent, it has been usual to appoint the solicitor of the plain- tiff; see ante, sec. 384. Compare also Scott v. State, 2 Md. 284, 288- 289; McKim v. Handy, 4 Md. Ch. 228, 232-233. In Bouldin v. Reynolds, 58 Md. 491, 494-495, it was held that a married woman may be a trustee. In Gibson's case, 1 Bl. 138, 144, it was said that a trustee cannot be allowed of himself to do any act which in similar cases is usually done by such an agent, but which has not been particularly specified in the order or decree under which he holds his appointment; as giving notice to creditors to file claims where the decree omitted to direct notice to be given. On page 147, it is said that the trustee may em- ploy an auctioneer. In Latimer v. Hanson, 1 Bl. 51, 56, it is said that a person ap- pointed a trustee is not bound to accept the trust, or to continue in office longer than he chooses; but, so long as he does consent to act in that capacity, he is bound to obey the orders of the court. 5 Lurman v.. Hubner, 75 Md. 268, 274; compare Brumbaugh v. State, 54 Md. 641, 646. The proceedings in the case are res inter alios acta, so far as the trustee is concerned, except as to his own accounts and allowances; Lurman v. Hubner, 75 Md. 268, 273; Estate of Rachel Colvin, 3 Md. Ch. 278, 303; State v. Annan, 1 G. & J. 450, 462. As to the right of the trustee to appeal, see ante, sees. 355-356. In Wampler v. Shipley, 3 Bl. 182, 183, it was said that after the sale has been ratified, the trustee could not, without the previous ex- press authority of the court, compromit or abandon any right in re- lation to the sale, or relinquish any bond or note taken for the pur- chase money, or dispose of the property or the purchase money to any one, or upon any ground whatever. 6 Sewall v. Costigan, 1 Md. Ch. 208, 211; Cohen v. Wagner, 6 G. 236, 252. ^ In Cockey v. Leister, 12 Md. 124, 129, it is said that a trustee is appointed on behalf of all the parties; if loss occurs without his de- fault, the estate must bear it. Compare Hoye v. Penn, 1 Bl. 28, 44. 'Gibson's case, 1 Bl. 138. 147. 569 Sales under decrees. §488-489 §488. Decree takes possession of property.— The decree for sale virtually takes possession of the property and vests it in the court; and the court may thenceforward exercise over it all such control and authority as may be necessary for its beneficial preservation. 1 The property is in custodia legist The possession and control of the court will not be allowed to be disturbed without the consent of the court even though it be attempted under a paramount claim of right. A person hold- ing a judgment which is claimed to be a prior or superior lien upon the property, if desirous of enforcing it against the prop- erty in the custody of the court, must first obtain leave of the court for the purpose. 3 Similarly when a court of equity has passed a decree for the sale of real estate, and has appointed trustees to make sale, a collector of taxes has no right to seize and sell the property or any part thereof for taxes due, and thus divest the court of its jurisdiction. 4 In all such cases the col- lector's remedies are suspended, because the court of equity has charge of the property; he must seek payment of his taxes from the funds under the control of the court. 5 §489. Trustee's bond. — The code provides that every trustee appointed by a decree to make a sale, before he sells, shall give bond to the State in such penalty as the court or 'Hammond v. Hammond, 2 Bl. 306, 360; if it cannot be immediately sold, it may be rented or disposed of in the meantime, to the best ad- vantage; the committing of any waste upon it may be prohibited by injunction; or a receiver may be put upon it to collect and take care of its rents and profits. Compare Williams' case, 3 Bl. 186, 215-216; Rowland v. Prather, 53 Md. 232, 239. In Wagner v. Cohen, 6 G. 97, 103, the rule was stated and it was said that the court might lease the property in the interval between the sale and the final ratification. And on page 104 it was said that a person having rights in the proceeds of sale has such an interest in the property as entitles him to ask the action of the court in respect to it. 2 Hebb v. Moore, 66 Md. 167, 169. As to attachments laid in the hands of a trustee, see Hodge and McLane on Attachment, sec. 163. 3 Brady v. Johnson, 75 Md. 445, 456-457; see also post, sec. 620. 4 County Comms. v. Clarke, 36 Md. 206, 218-220; the only course for the collector to pursue, so long as the land continues under the juris- diction and control of the court, is to make an application to the court; Gould v. Mayor, &c, 58 Md. 46, 52. The first mentioned case is quoted in In re Tyler, 149 U. S. 164, 183-184, in which a number of au- thorities are reviewed. Compare Day v. Postal Co., 66 Md. 354, 368. 5 Hebb v. Moore, 66 Md. 167, 169. §489-490 Sales under decrees. 570 judge thereof may prescribe, and with surety or sureties to be approved by the judge of the court or the clerk thereof, with condition that such trustee shall faithfully perform and execute the trust reposed in him. 1 Although the trustee is thus re- quired to execute a bond for the faithful performance of the duty entrusted to him, yet, his failure to give bond does not render the sale void, and the court may confirm such sale, although objection be made. 2 The bond is not for the benefit or pro- tection of the purchaser as such; 3 and hence exceptions by him to a sale on the ground that no bond was given cannot be sus- tained. 4 So also the filing of an improper bond by the trustee is not a ground of objection to the sale by the purchaser, or other persons ; 5 the penalty is a matter between the court and the trustee, intended for the protection of those interested in the distribution of the purchase money, and cannot affect the validity of the sale. 6 The court may, however, in case no bond or an insufficient bond is given, order the execution of an ade- quate bond, 7 and remove the trustee and appoint another if the order is not complied with. 8 §490. The advertisement.— The advertisement is de- signed to let the public know what property is brought into the market ; in case of mortgage foreclosures, it is intended to af- iCode, art. 16, sec. 201; sec. 204 provides that the bond shall be filed with the clerk and recorded. 2 Speed v. Smith, 4 Md. Ch. 299, 309-310; Brooks v. Hays, 24 Md. 507, 519; Dungan v. Vondersmith, 49 Md. 249, 252; compare Dickerson v. Small, 64 Md. 395, 399; Harrison v. Harrison, 1 Md. Ch. 331, 334. In Speed v. Smith, 4 Md. Ch. 299, 310, the trustee was charged with failure to give bond; the court declined to pass a final order of ratification of the sale until bond was filed. 3 Bolgiano v. Cooke, 19 Md. 375, 396. 4 Speed v. Smith, 4 Md. Ch. 209, 309-310. 5 Gibbs v. Cunningham, 1 Md. Ch. 44, 52; affirmed in Cunningham v. Schley, 6 G. 207, 231; Bolgiano v. Cooke, 19 Md. 375, 396-397. ' 6 Dawes v. Thomas, 4 G. 333, 339; Dungan v. Vondersmith, 49 Md. 249, 252. 'Dickerson v. Small, 64 Md. 395, 399; Suit v. Creswell, 45 Md 529, 531- 8 Suit v. Creswell, 45 Md. 529, 531; under code, art. 16, sec. 203. 571 Sales under decrees. §490 ford the owners an opportunity to redeem the property from sale; 1 and in case of tax sales, to enable the owner to rescue it from the hammer. 2 The direction of a decree requiring an advertisement is most essential to the safety of the persons in- terested in the property, because unless public notice is given competition cannot be secured. 3 The trustee must of course comply with the directions of the decree in respect to the ad- vertisement, and the failure to do so will be a ground for setting aside the sale. 4 Thus the advertisement must be published for the time, 6 and in the place," required by the decree. When it is 1 Kauffman v. Walker, 9 Md. 229, 240. The advertisement is not a contract; Farmers' Bank v. Martin, 3 Md. Ch. 224, 226; its object is to notify the public when and where the sale will take place; Patterson v. Miller, 52 Md. 388, 397. 2 Alexander v. Walter, 8 G. 239, 260. In Richardson v. Simpson, 82 Md. 155, 160, it was said that the chief, if not the only, objects in giving notice of tax sales by public advertisement are, first, to apprise, the owner of the property of the pending proceeding, and secondly, to apprise persons desirous of pur- chasing. If both or either of these objects be defeated by the form of the advertisement, or by the description, which it gives of the prop- erty, the sale would be void; see the facts here in reference to the ad- vertisement. 3 Glenn v. Wootten, 3 Md. Ch. 514, 519. 4 Bolgiano v. Cooke, 19 Md. 37s, 397-398, citing Glenn v. Wootten, 3 Md. Ch. 514, 516, 520; Cunningham v. Schley, 6 G. 207, 231, affirming Gibbs v. Cunningham, 1 Md. Ch. 44, 46; Conroy v. Carroll, 82 Md. 127, 128. If the trustee be appointed by a deed of trust or mortgage, he must comply with the directions prescribed, and if he does not, the sale may be set aside even though the property is not sold at an inadequate price; Reeside v. Peter, 33 Md. 120, 126. In Bolgiano v. Cooke, 19 Md. 375, 397. it is said that an objection to a sale for want of notice has not the same force when made by a purchaser as it would when made by a creditor, unless the purchaser can show that he was injured by the want of notice, which is the reason of the rule. And on page 398 the court said it was unable to see how the purchaser could be injured by any irregularity in the advertise- ment. =Glenn v. Wootten, 3 Md. Ch. 514, 518-520; in this case the decree ordered the trustee to give at least three weeks' notice of the sale; on the day appointed the weather was very bad and there were no persons present. The trustee adjourned the sale and advertised it to take place four days later. This was a total failure to comply with the di- rections of the decree and the sale thus made was set aside, although §490-491 Sales under decrees. 572 required that twenty days' notice of the sale shall be given, it is not necessary that twenty days daily notice should be pub- lished. 7 Where a publication on the day of sale was custom- ary, but was not made, and persons were misled, the sale was set aside. 8 It is not necessary that the names of the parties to the suit, in which the decree was passed, should be stated. 9 Nor is it necessary to mention the incumbrances upon the property, when the property is sold clear of all incumbrances. 10 Trifling errors in the advertisement may be overlooked, if the sale is not injured thereby. 11 §491. Description of property. — The advertisement should so definitely and precisely describe the property that the public may be informed of the property to be sold; and that purchasers may without difficulty estimate its value. It is not the property did not sell at an undervalue and" the sale was perfectly fair. Compare Dircks v. Logsdon, 59 Md. 173, 179. e Conroy v, Carroll, 82 Md. 127, 128. Compare Chilton v. Brooks, 71 Md. 445, 453-454; Farmers' Bank v. Clarke, 28 Md. 145, 154. 'White v. Malcolm, 15 Md. 529, 543-544; Johnson v. Dorsey, 7 G. 269, 286; in the latter case, where three -weeks' notice was required, an advertisement once a week for three successive weeks was held suffi- cient. Compare Phila. R. Co. v. Shipley, 72 Md. 88, 93, and cases cited; Mayor, &c. v. Little Sisters, 56 Md. 400, 406. "Patterson v. Miller, 52 Md. 388, 396-397. In Warehime v. Carroll Assn., 44 Md. 512, 519, a mortgage of lands in Carroll county provided for an advertisement every other day for a certain period. There were no daily newspapers in the county, and it was held that the requirement was impossible and that it was equivalent to omission to provide for notice. In Chilton v. Brooks, 69 Md. 584, 588, it was held that where property was fully advertised, the non-observance of a custom among auctioneers to place notices in the doors or windows of houses to be sold at auction, was not sufficient ground to set aside the sale. 9 This was, however, necessary in a mortgage foreclosure under the act of 1836, ch. 249, sec. 3, relative to mortgages in Baltimore city; ante, sec. 451. 10 Cunningham v. Schley, 6 G. 207, 224-225, affirming Gibbs v. Cun- ningham, 1 Md. Ch. 44, 46. Compare Reeside v. Peter, 33 Md. 120, 126. "Brooks v. Hays, 24 Md. 507, 519. Proof of the publication of the advertisement is made by the cer- tificate of the publisher of the newspaper. In Bolgiano v. Cooke, 19 Md. 375, 397, the certificates were obscure and contradictory. 573 Sales under decrees. §491 sufficient that such an advertisement should be given as would enable a person to ascertain the situation of the property by in- quiry. 1 The description should be sufficiently definite to ap- prise the public, without further reference, of the property to be sold. 2 In tax sale cases it is held that the designation of the land will be sufficient if it affords the means of identification, and does not positively mislead the owner, or is not calculated to mislead him; but an erroneous description which is calcu- lated to mislead is insufficient to constitute notice. Where the description is that of a part of a lot, without showing how much or giving boundaries, it is insufficient. 3 But it is not necessary 1 Alexander v. Walter, 8 G. 239, 260-261; Kauffman v. Walker, 9 Md. 229, 241 ; Cooper v. Holmes, 71 Md. 20, 23, 30. In Alexander v. Walter, 8 G. 239, 260-261, the advertisement of a tax sale described the property as a lot belonging to W., situated on the east side of South street, but without designating by reference to a plat or otherwise the dimensions of the lot or the particular part of the street on which it was located. This was held vague and defective; stated in Dickerson v. Small, 64 Md. 395, 397. In Kauffman v. Walker, 9 Md. 229, 230, 241, a trustee's adver- tisement described the property as a lot situated on the south side of Lombard street, in the city of Baltimore, at the distance of 391 feet or thereabouts, westerly from the southwest corner of Lombard and Canal streets, fronting on Lombard street about 24 feet and extending back about 100 feet; improved on Lombard street by a three-story brick dwelling-house. This was insufficient; stated in Dickerson v. Small, 64 Md. 395, 397-398. See also Neel v. Hughes, 10 G. & J. 7, 10; Guisebert v. Etchison, 51 Md. 478, 485; White v. Malcolm, 15 Md. 529, 541. 2 Reeside v. Peter, 33 Md. 120, 126; in this case a trustee advertised the property as follows: "By virtue of a deed of trust bearing date, the 9th day of August, 1865, and recorded in Liber, E. B. P., No. 2, fol. 241, &c, one of the Land Records for Montgomery County, the subscriber as trustee, will offer, &c, in front of the door at Seneca Mills, all the following described pieces of land, situated in Montgom- gomery County;" but no description followed. It was held that this was too meagre; a person would have to make an examination of the land records to find out what were the lands to be sold. "The au- thority by which the property is sold, a description thereof full enough to be understood by the public, its popular name, if any, its proximity to other well-known property, the name of the occupant at the time, or any other prominent characteristics, may all or either afford means of informing the public and others concerned, of the identity of the prop- erty;'' stated in Dickerson v. Small, 64 Md. 395, 398. 3 Richardson v. Simpson, 82 Md. 155, 160-162; see the instances here. §491-492 Sales under decrees. 574 that the advertisement should give a minute description of the exact location of the property, or its metes and bounds; any description is sufficient which informs the public of the property to be sold. A description is sufficient which enables the public to understand by the use of ordinary intelligence what property is offered, and to identify it by examination if a more particular description is desired. 4 §492. Bids. — The trustee is not bound to accept every bid. He is necessarily clothed with a discretion, and the court will always sustain him in refusing bids which would defeat the ob- ject of the sale. 1 Thus a trustee has been directed to reject the bid of a delinquent purchaser, who bids at a re-sale of the prop- Stevens v. Bond, 44 Md. 506, 510-511; Reeside v. Peter, 33 Md. 120, 126; see the instances in these cases and in Mahoney v. Mackubin, 52 Md. 357, 364; Cooper v. Holmes, 71 Md. 20, 29. In Dickerson v. Small, 64 Md. 395, 397, the advertisement was published in a newspaper in the town in which the property was sit- uated, and was advertised as town property, and was sufficiently de- scribed as to its location, but it was not stated that the property was situated in the town. This omission, however, left no room for doubt as to its identity and was sufficient; see also the instances in Dircks v. Logsdon, 59 Md. 173, 179; White v. Malcolm, 15 Md. 529, 530-531, 541. ,:1 Gray v. Veirs, 33 Md. 18, 22; in this case an agent having a written authority to bid a certain price for his principal, bid a higher price; the trustee rejected the bid, and his action' was sustained by the court; compare Md. Society v. Smith, 41 Md. 516, 520-521; Warehime v. Graf, 83 Md. 98, 103; Johnson v. Dorsey, 7 G. 269, 291. Mr. Barroll, (Md. Eq. 14), states that he once refused, as trus- tee, a bid believed not to be made in good faith, and was sustained by the court; compare the "very unusual incident" at the sale in Thomson v. Ritchie, 80 Md. 247, 250-252. A trustee cannot legally refuse the bid of a married woman pur- chaser; Fowler v. Jacob, 62 Md. 326, 330. In Warehime v. Graf, 83 Md. 98, 102-103, a dispute arose as to who made a certain bid at an executors' sale. The executors refused to accept the bid and ordered the auctioneer to put the property up again. This procedure was approved. "Unless settled on the spot, the controversy might portend litigation and a long delay, to the great detriment of the estate." In Warfield v. Dorsey, 39 Md. 299, 303, it is said that the bidders make themselves parties to the case, and as such have the right to in- terfere in the proceedings; see also Kneeland v. American Loan & Trust Co., 136 U. S. 89, 93-95. 575 Sales under decrees. §492 erty. 2 So if a bid is not made in good faith, it should be rejected by the trustee; by the highest bidder is meant the person who made the highest bid in good faith. 3 Bids are proposi- tions, and when accepted by the trustee acting for the court, and the property is struck off accordingly, the bidders have no power, at their pleasure, to retract them, and thus baffle and de- feat the sale. 4 Bids are presumed to be real and not nominal. 5 It is a fraud upon the purchaser to advance the price by means of puffers or bye-bidders; and hence where such persons were employed by trustees and bid up the price without the purchaser knowing >of their employment the sale was not valid. 6 The 2 Murdock's case, 2 Bl. 461, 465-466; Gray v. Veirs, 33 Md. 18, 22; in the former case it is said that the court may order or allow the trus- tee to report two or more persons as the highest bidders upon the condition that if he who is reported as the highest bidder does not comply with the terms of sale the next highest bidder may be received as the purchaser; see also the note cases here. 3 Gray v. Veirs, 33 Md. 18, 22; Maryland Society v. Smith, 41 Md. 516, 520-521. In Cohen v. Wagner, 6 G. 236, 253, the trustee told the auction- eer that the limit was a certain sum and if he got no bid above that, to strike it off to a certain person; this was not improper. In this case it is also said, (p. 253), that it is not necessary to announce the names of the bidders, nor that the persons attending the sale should know their names before the property is struck off. 4 Warfield v. Dorsey, 39 Md. 299, 303. In State v. Second Nat'l. Bank, 84 Md. — , it was said that at auction sales property is understood to be "knocked down" when the auctioneer, by the fall of his hammer, or by any other audible or visible announcement, signifies to the bidder that he is entitled to the property on paying the amount bid according to the terms of the sale. 'Cornell v. McCann, 48 Md. 592, 604; see this case in regard to the method of arriving at the value of property by averaging the bids. As to parties uniting to purchase property, or agreeing not to bid against each other, see Smith v. Ullman, 58 Md. 183, 189. 6 Moncrieff v. Goldsborough, 4 H. & McH. 281, 283; Williams' case, 3 Bl. 186, 212; Veazie v. Williams, 8 How. 134, 153- In Peck v. List, 23 W. Va. 338, 375-39°, the authorities are re- viewed at length and it was held that the employment of puffers is a fraud on the real bidders and that the highest bidder cannot be com- pelled to complete the contract, but may repudiate the sale if he does so promptly. On page 375 it is said: "A puffer is a person who with- out having any intention to purchase, is employed by a vendor at an auction, to raise the price by fictitious bids, thereby increasing compe- §492-493 Sales under decrees. 576 English practice of opening the biddings upon the offering of an advance upon the purchaser's bid has not been adopted in this State;'' certainly not in cases of sales made in conformity with the terms prescribed by the decree. 8 §493. Duty of trustee in making sale. — It is the duty of the trustee to offer the property in such a manner as to bring its fair market value, and to exercise the prudence that a careful owner would exercise in the sale of his own property. 1 The benefit of the interested parties, for whom the court makes the sale, is always and chiefly regarded. The highest price that can be had under all circumstances, should be obtained; and the sale should be in all respects a fair and honest one. 2 The trustee is bound to offer the estate under the best possible ad- vantage for the interest of those for whom the trust is created, tition among the bidders while he himself is secured from risk by a secret understanding with the vendor that he shall not be bound by his bid." In Williams' case, 3 Bl. 186, 212, it is said that to prevent a sale of property for less than its value the trustee may have a reserved bid for the benefit of the owners, and may employ a bye-bidder accordingly. 'Cohen v. Wagner, 6 G. 236, 251; Johnson v. Dorsey, 7 G. 269, 282, 292. In Andrews v. Scotton, 2 Bl. 629, 644, it is said: "In England, if after the biddings are closed, anyone else comes in and offers a much higher price, the biddings may be opened, and the additional offer ac- cepted. The phrase of 'opening the biddings' which, in the English books, occurs so frequently, means no more than a further suspension of the sale, and a continuance of the property in the market. In this State, there has been no instance of opening the biddings or suspend- ing the sale merely to let in another and a higher bid, and for no other cause." On page 671 the court rejected an offer of an increased price over the sum bid at a sale made by the trustee, and said that upon gen- eral principles of convenience and economy it deemed it improper in any case to reject a reported sale merely to let in a higher bid, where no fraud, misrepresentation or unfairness is charged. This was a pub- lic sale, as appears from pages 670 and 630-631. 8 Kelso v. Jessop, 59 Md. 114, 121-122. 1 Hopper v. Hopper, 79 Md. 400, 402; Wicks v. Westcott, 59 Md. 270, 277; compare Gould v. Chappell, 42 Md. 466, 470, 473. 2 Andrews v. Scotton, 2 Bl. 629, 643-644. The trustee may fix a minimum price, below which the property is not to be sold: Johnson v. Dorsey, 7 G. 269, 291, 296; Cohen v. Wag- ner, 6 G. 236, 250. ' 577 Sales under decrees. §493 and to act in perfect good faith throughout in his management in relation to the sale. He cannot in any degree subserve the interest of one party to the sacrifice or detriment of others equally interested. 3 Where a trustee is advised, before the sale, of doubt in regard either to the title or the nature and character of the interest in the property to be sold, it is his duty to use all reasonable efforts to disembarrass the title of such doubt, in order that the property may bring its fair market value. 4 As a general rule, however, it is not the duty of a trustee, in selling property upon which prior incumbrances rest, to ferret out the exact state of such liens and ascertain how much, if any, may be due upon them. But if he undertakes to make any state- ment regarding them it is his duty to be sure that his state- ment is not in any way misleading. 6 Competition if possible should always be on fair and equal ground among bidders hav- ing equal knowledge or means of knowledge. 6 Ordinarily the presumption is that a trustee in making a sale does his whole duty, 7 and that a sale made at public auction, after clue notice, has brought the best price; but when facts are found to exist, calculated to prejudice the sale, the presumption is against it. s The personal absence of the trustee from the sale, and making it through another person, is a fact to throw discredit upon it. 9 3 Bank of Commerce v. Lanahan, 45 Md. 396, 409-410. For cases in which questions have arisen in respect to the pro- priety of sales in solido or in parcels, and whether by the acre or in building lots; see Hopper v. Hopper, 79 Md. 400, 402; Patterson v. Miller, 52 Md. 388, 397; Johnson v. Hambleton, 52 Md. 378, 381, 385- 386; Hubbard v. Jarrell, 23 Md. 66, 83-85; Hughes v. Riggs, 84 Md. — . As to sales of debts due, see Deford v. Macwatty, 82 Md. 168, 185- 186; Loney v. Penniman, 43 Md. 130, 131-132. 4 Schindel v. Keedy, 43 Md. 413, 418; Glenn v. Clapp, 11 G. & J. 1, 10; compare Stewart v. Devries, 81 Md. 525, 528; Gibbs v. Cunningham, 1 Md. Ch. 44, 47, affirmed in Cunningham v. Schley, 6 G. 207, 231. 5 Wicks v. Westcott, 59 Md. 270, 277-278; see the facts here. "McLaughlin v. Barnum, 31 Md. 425, 450; Wicks v. Westcott, 59 Md. 270, 281. 7 State v. Ramsburg, 43 Md. 325, 334. "Wicks v. Westcott, 59 Md. 270, 276; compare Bank of Commerce v. Lanahan, 45 Md. 396, 410. In Dungan v. Vondersmith, 49 Md. 249, 252, it was said that the misconduct of the original trustee could not avail to set aside a sale made by his successor. 9 Wicks v. Westcott, 59 Md. 270, 279; compare Alex. Ch. Pr. 145. The trustee may postpone the sale if such a course would be ad- 37 §494 Sales under decrees. 578 §494. Compliance with modal regulations.— The kind of duties required of a trustee and the manner in which they are to be performed, are usually particularly prescribed by law 1 or specified in the decree or order to be executed. 2 It is said that, as a general rule, a departure from the modal regu- lations in any essential respect, without first attempting to dis- pose of the property in conformity with them, will always pre- vantageous to the parties; Lawson v. State, 2 Bl. 638, 642, note case. But in such a case the notice required by the decree must be given anew; Glenn v. Wootten, 3 Md. Ch. 514, 519-520. In Mahoney v. Macfcubin, 52 Md. 357, 364-365, objection was made on the ground that the sale was made at a time when the weather was not fit, and that sufficient time was not given for the bidders to bid; both objections were overruled. Compare Chilton v. Brooks, 69 Md. 584, 586. In Bank of Commerce v. Lanahan, 45 Md. 396, 411, it was said that the fact that the sale took place on the day of the general State election could form no sufficient ground for setting aside the sale. It was not shown that anyone was prevented from attending the sale by reason of the election. Compare Cohen v. Wagner, 6 G. 236, 250-251. x Code, art. 16, sec. 195, provides that ''all sales made under a decree or order of the court shall be made on such terms and conditions as the court may determine, except where the sale is required by law to be made for ready money." An instance of where the sale is required by law to be made for ready money is under code, art. 16, sec. 187. 2 Gibson's case, 1 Bl. 138, 144; Glenn v. Wootten, 3 Md. Ch. 514, 5i6;Andrews v. Scotton, 2 Bl. 629, 643, in which there is an account of the proceedings in a sale in the English chancery court, contrasting them with those in our courts. In Gibbs v. Cunningham, 1 Md. Ch. 44, 52, it is said that a bona fide purchaser is not to lose the rights which he supposed he was ac- quiring when dealing with the court's agent upon objections founded upon the modal regulations of the sale, the non-observance of which is not shown to be injurious; citing Marshall v. Greenfield, 8 G. & J. 349; affirmed in Cunningham v. Schley, 6 G. 207, 231. In Horsey v. Hough, 38 Md. 130, 139, it was said, in reference to a sale of mortgaged property under a power of sale, that "in deter- mining upon the approval or rejection of the sale the true question to be considered is not so much whether there has been a literal or tech- nical, as a fair and reasonable, compliance with the terms of sale, and a bona fide disposition of the property." Compare Brooks v. Hays, 24 Md. 507, 519. In respect to trustees under deeds, the provisions and conditions of the deed make the law by which the conduct of the trustees in the management and disposition of the property must be regulated and controlled; Huntt y. Townshend, 31 Md. 336, 338; Reeside v. Peter, 33 Md. 120, 126; Reeside v. Peter, 35 Md. 220, 222. 579 Sales under decrees. §494-495 vent a ratification of the sale if objection be made. 3 Where the trustee deviates from the terms prescribed by a decree, objec- tions to its ratification may prevail which would be disregarded if urged against a sale made in conformity with its terms. -1 §495. Waiver of non-compliance. — The court will sometimes ratify a sale when strict conformity to the require- ments has not been observed in making it; but such ratification will not be accorded unless it appear from the proof that the sale is an advantageous one, and ought to be ratified notwithstand- ing the infirmity in the method of proceeding. 1 Although the modal regulations ought to be strictly followed, yet if the trustee fails to follow them and sells in a different manner from that prescribed, but reports satisfactory reasons for so doing, and no objection is made, the sale may be confirmed. Thus if a trustee, directed by the decree to sell a tract of land entire at public sale, should sell in parcels at private sale, and 3 Glenn v. Wootten, 3 Md. Ch. 514, 516-517; in this case it is said that the modal regulations would be "mere unmeaning words if the trustee may, without an attempt to comply with them, sell in such mode and upon such terms as to him may seem fit;" Bolgiano v. Cooke, 19 Md. 375, 397; Warehime v. Carroll Assn., 44 Md. 512, 519; compare Mack- ubin v. Brown, i Bl. 410, 415; Murdock's case, 2 Bl. 461, 465. In Latrobe v. Herbert, 3 Md. Ch. 375, 377, quoted in Kelso v. Jessop, 59 Md. 114, 1 19-120, it is said that where a sale is made in all respects according to the terms of the decree, and no fraud can be al- leged against it, the faith of the court is pledged to ratify and perfect it; but if the trustee does not follow the terms of the decree, no one can complain if the court refuses to confirm the sale. In Warehime v. Carroll Assn., 44 Md. 512, 519, it was said of a sale under a power contained in a mortgage, that if the trustee must first attempt a sale before he may depart from the modal regulations, the latter must be such as are practicable and may be complied with. Compare the facts in Hubbard v. Jarrell, 23 Md. 66, 82-83. In Glenn v. Wootten, 3 Md. Ch. 514, 520, and Kelso v. Jessop, 59 Md. 114, 120, sales were set aside; in Harrison v. Harrison, 1 Md. Ch. 331, 333-334, the sale was confirmed. ^Latrobe v. Herbert, 3 Md. Ch. 375, 377; Kelso v. Jessop, 59 Md. ' 114, 120; Glenn v. Wootten, 3 Md. Ch. 514, 518. In Harrison v. Harrison, 1 Md. Ch. 331, 336, the court refused to set aside the sales alleged to have been erroneously made, when the parties objecting had slept on their rights for many years. ^Wicks v. Westcott, 59 Md. 270, 276. §495 Sales under decrees. 580 report satisfactory reasons for so doing and no objection is made, the sale may be ratified. 2 Two facts must exist to au- thorize the ratification: first, that satisfactory reasons be given, and, second, the absence of objection by those interested. 3 • By the absence of objection is meant objections of sufficient force to outweigh the reasons given by the trustee, and not simply a , mere veto by any one concerned. 4 The fact that the trustee has offered the property for sale in the mode prescribed by the de- cree,' and has been unable to sell it in that way, has generally been held to be a satisfactory reason for non-compliance with the modal regulations; 5 but even in such a case objections to the ratification would prevail which would be disregarded if made to a sale in all respects in conformity with its require- ments. 6 It is said that perhaps no deviation from the terms prescribed by the decree could render a sale more obnoxious to objection than selling at private sale when the decree directs a public one. But when the decree directs a public sale and the trustee has offered it in that manner, but has failed to get an acceptable bid, then he is permitted to receive a bid at private 2 Andrews v. Scotton, 2 Bl. 629, 643; Glenn v. Wootten, 3 Md. Ch. '514, 516; Gibbs v. Cunningham, I Md. Ch. 44, 50; Cunningham v. Schley, 6 G. 207, 228-229; Gibson's case, 1 Bl. 138, 144. Compare Ty- son v. Mickle, 2 G. 376, 383-384. 3 Glenn v. Wootten, 3 Md. Ch. 514, 516. In Bolgiano v. Cooke, 19 Md. 375, 397, it is said that there is not the same force in the objection (in that case want of notice), when made by the purchaser, as when made by creditors. 4 Gibbs v. Cunningham, 1 Md. Ch. 44, 50, affirmed in Cunningham v. Schley, 6 G. 207, 231; Latrobe v. Herbert, 3 Md. Ch. 375, 378. 5 Glenn v. Wootten, 3 Md. Ch. 514, 517, quoting Gibson's case, I Bl. 138, 144, in which reasons for this rule are stated. Compare Kelso v. Jessop, 59 Md. 114, 120. In Glenn v. Wootten, 3 Md. Ch. 514, 520, the trustee failed to give the notice by advertisement required by the decree. The court said: "The trustee must follow the directions, but after he has done so, if it cannot be sold at public auction on the terms specified, he may ac- cept of a bid upon different terms, or he may dispose of it at private sale, and then it will be for the court to say when the trustee shall have made his report, whether, under all the circumstances, it ought to be ratified." 6 Glenn v. Wootten, 3 Md. Ch. 514, 518; Latrobe v. Herbert, 3 Md. Ch. 37s, 377-378; in the latter case it is said that objections of a merely capricious or arbitrary character would not be regarded. 581 Sales under decrees. §495-496 sale; and if no objection is made after public notice given to the parties in interest, it will be confirmed; but such a private sale is open to objections which would not be allowed to stand in the way of a public sale. 7 The court in confirming a trustee's acts not .done in accordance with its directions, takes care that no injustice is done the parties interested, and that they have an opportunity of being heard, before their rights are determined. 8 The principle upon which the court acts is, in part, that if a trustee exercises a power which if previously applied for would have been granted, as it were, as a matter of course, a court of equity will, in the absence of proof showing the inexpediency and injustice of so doing, ratify the act done, in the same man- ner as if the requisite authority had been antecedently applied for and granted. 9 §496. Trustee's report of sale. — After the sale has been made, the trustee must make his report to the court. The code provides that every trustee appointed by decree to make a sale shall report under oath any sale he may make, to the court, and also report his proceedings whenever he may be required by the court. 1 Moreover, the form of decree gener- ally used provides that as soon as may be convenient after any sale, the trustee shall return to the court a full and particular account of his proceedings relative to such sale, with an an- nexed affidavit of the truth thereof and of the fairness of said 7 Latrobe v. Herbert, 3 Md. Ch. 375, 377-378, 381; thus the inade- quacy of price, in part, prevented in this case, (p. 380), the ratification of a private sale, although such an objection seldom prevails at a pub- lic sale; see also Kelso v. Jessop, 59 Md. 114, 120-121; Gibson's case, 1 Bl. 138, 144; Gibbs v. Cunningham, 1 Md. Ch. 44, 50-51; Speed v. Smith, 4 Md. Ch. 299, 309. "Harrison v. Harrison, 1 Md. Ch. 331, 332-333; though the trustee may depart from the special directions of the decree, yet a subsequent ratification by the court would render a sale as binding and valid as if he had pursued the directions; see the other remarks here, and the facts of the case, the sale being made on a different day and at a differ- ent place from that mentioned in the advertisement. "Tyson v. Mickle, 2 G. 376, 384; Reeside v. Peter, 35 Md. 220, 223; Kelso v. Jessop, 59 Md. 114, 120; Gray v. Lynch, 8 G. 403, 426; Clark v. Abbott, 1 Md. Ch. 474, 476; Latrobe v. Herbert, 3 Md. Ch. 375, 378- 379; Gable v. Scott, 56 Md. 176, 181-182; and other cases. 1 Code, art. 16, sec. 201. §496 Sales under decrees. 582 sale. 2 The report should follow the requirements of the de- cree by giving a full and particular account of the proceedings of the trustee, 3 with the affidavit annexed. 4 The property sold should be so described or referred to as to admit of identifica- tion, in order that the ratification may prove effective. 5 Errors or omissions in the report of sale may be corrected by amend- ment; and in such cases, in the absence of fraud, surprise or undue advantage, the rights of the purchaser require an amendment or an additional report to be made. Such defects afford no ground to annul the sale. 8 The report of the trus- 2 Carey's Forms, No. 649, page 474; Alex. Ch. Pr. 146. See the exceptional facts in Harrison v. Harrison, 1 Md. Ch. 33l> 334. and the same case on appeal under the name of Perrin v. Keithley, 9 G. 412, 417-419, in which a sale was ratified, although no report had been made by the trustee; the chancellor holding that the title of the purchaser cannot depend absolutely upon the trustee per- forming his duty to make a report; and compare Andrews v. Scotton, 2 Bl. 629, 657-658, and, on appeal, under the name of Anderson v. Foulke, 2 H. & G. 346, 372. See also Rieman v. Wagner, 74 Md. 478, 479- Special statutory provisions require trustees for the benefit of creditors, &c, to make report upon oath of the whole amount of the trust estate and the disposition made of the same; and any sale of leasehold or fee simple property made by such trustee before taking effect shall be reported to and ratified by the court; cS&e, art. 16, sec. 209. If any trustee fails to make such report he may be attached; sec. 210. 'Carey's Forms, No. 812, p. 667; compare Hammond v. Hammond, 2 Bl. 306, 360. 4 Carey's Forms, No. 813, p. 668. 6 Neel v. Hughes, 10 G. & J. 7, 10. A copy of the advertisement of sale is often filed with the report as a part thereof; as in Reeside v. Peter, 33 Md. 120, 127. 6 White v. Malcolm, 15 Md. 529, 544-545; Reeside v. Peter, 33 Md. 120, 127. In White v. Malcolm, 15 Md. 529, 544-545, the omission by the trustee to state what the terms of sale were, or the compliance with them by the purchaser, was held to require an amendment of the re- port. In Reeside v. Peter, 33 Md. 120, 127, the terms of sale, although not mentioned in the report, were found in a copy of the advertise- ment accompanying the report and forming a part thereof, and were thus ascertained. In Warehime v. Graf, 83 Md. 98, executors reported to the orphans' court that they had sold property to a certain purchaser at a 583 Sales under decrees. §496-497 tee, under oath, is entitled to full faith and credit, unless con- tradicted by conclusive testimony; 7 and the facts stated in it must be taken as true in the absence of proof to the contrary. 8 §497. Order nisi on report of sale. — Upon the filing of the report, an order of ratification nisi 1 is passed, 2 that the sale be ratified unless cause to the contrary be shown on or be- fore a certain day named therein. 3 The order directs a copy of the order to be published in some newspaper for a certain period. 4 The certificate of the publisher of the newspaper is certain price. The person named as purchaser afterwards filed a peti- tion praying the court not to confirm the sale as reported, but at a lower price, alleging that the price named by the executors was er- roneous. The court below set aside the sale, but the court of appeals reversed the order and held the purchaser to his bid as reported by the executors. TBolgiano v. Cooke, 19 Md. 37s, 397; see also Brundige v. Morrison, 56 Md. 407, 412-413- 8 Tyson v. Mickle, 2 G. 376, 384; Farmers' Bank v. Clarke, 28 Md. MS, 154- ' *In White v. Malcolm, 15 Md. 529, 547, it is said that "according to the long and well settled practice in this State" an order of ratification nisi is passed and published when a sale is made under a decree in chancery. The purpose of the order nisi is of course to give public notice to all persons interested to show cause, if any there be, why the sale should not be confirmed; Gibson's case, 1 Bl. 138, 144; Balch v. Zentmeyer, 11 G. & J. 267, 283. In County Comms. v. New York Co., 76 Md. 549, 557, it is said that the ordinary orders nisi passed upon trustees' reports and audi- tors' reports, and others, have a prima facie foundation of correctness; and in the absence of anything to the contrary, may well justify the court in assuming such correctness. 2 Under code, art. 17, sec. 29. this order is usually passed by the clerk. (In Baltimore city, in private sales, the order nisi must be passed by the judge, not by the clerk; this practice is established under the directions of the supreme bench. — Brewer.) 3 The period during which the order nisi runs is not the same in the several counties. In Baltimore city, rule 23, of the equity courts provides that "on the report of any sale of real estate made under the authority of the court an order will be passed for ratifying the said sale on some cer- tain day named in the order and not less than one month after the date thereof." *In Baltimore city, rule 23 of the equity courts provides for the pub- lication in some daily newspaper printed in the city of Baltimore at §497-498 Sales under decrees. 584 in practice accepted as evidence of the fact of publication. If no cause to the contrary is shown by the time limited a final order of ratification may be passed by the court. 5 Exceptions filed after the time limited, but before ratification, are not too late. 6 If all the parties interested are mi juris, and consent, a sale may be ratified immediately upon its being reported, with- out publication of the order nisi. 7 All objections to the sale on the ground of error, mistake or misrepresentation, either in regard to the -terms or manner of sale; or in regard to the nature and character of the interest in the property decreed to be sold, are open for consideration before final ratification. 8 §498. Purchaser's right to confirmation of sale. — When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it. 1 The court will least once in each of three successive weeks before the expiration of one month from date of said order. In Riordan v. Courtney, in the circuit court of Baltimore city, 28 A. 137, published in the Daily Record, October 19, 1888, it was held that the "Daily Record" was a daily "newspaper." B In Baltimore city it is provided by rule 23 of the equity courts, that "if no exceptions be filed or cause exist for setting aside the said sale, the same will, at any time after the day so named (in the order nisi) and on the application of any person interested therein, be abso- lutely ratified and confirmed." Unless otherwise instructed, the clerk on the proper day presents a final order of ratification to the judge for signature, on behalf of the solicitor. The rule further provides that "with the consent of all parties interested therein, a special order may be obtained for ratifying a particular sale." 6 White v. Malcolm, 15 Md. 529, 546-547; Hunting v. Walter, 33 Md. 60, 62. 7 Alex. Ch. Pr. 146; Andrews v. Scotton, 2 Bl. 629, 644; Brown v. Wallace, 2 Bl. 585, 598; Wilson v. Watts, 9 Md. 356, 459, per Le Grand, J.; Warehime v. Carroll Assn., 44 Md. 512, 517; see also Gibson's case, 1 Bl. 138, 144. 8 Schindel v. Keedy, 43 Md. 413, 418; Tomlinson v. McKaig, 5 G. 256, 276-277; Bolgiano v. Cooke, 19 Md. 375, 391. J-Latrobe v. Herbert, 3 Md. Ch. 375, 377; Kelso v. Jessop, 59 Md. 114, 119; Glenn v. Wootten, 3 Md. Ch. 514, 518; see also Johnson v. Dorsey, 7 G. 269, 287; Harris v. Hooper, 50 Md. 537, 548-549. In Cohen v. Wagner, 6 G. 236, 252, it is said: "In the case before us, the trustee made the sale in strict conformity to the powers and di- 585 Sales under decrees. §498 not be astute in finding out objections to sales made by its trustees. A bona fide purchaser is not to lose the rights which he supposed he was acquiring when dealing with its agent, upon objections upon the modal regulations of the sale, the non-observance of which is not shown to have been injurious. 2 The rights of purchasers must be recognized and carefully guarded 3 as they have an interest* in maintaining the sale. 4 Every intendment is made to support the sale, and it is only where the court can see that injustice will be done to a party not in default, by the ratification of a sale, that it will in- terfere to prevent it. B The courts always interfere reluctantly with judicial sales of any kind. A sale made in strict conform- ity with the terms prescribed by the order or decree of the court will not, as a general rule, be set aside unless it plainly ap- pears that the property was sold for an inadequate price, or un- less there has been a mistake or surprise of some kind, or an omission of duty or misconduct on the part of the court's agent, or fraud on the part of the purchaser. 6 rections given to him by the decree of the chancery court; and, there- fore, the purchaser having- entered into the contract with a duly au- thorized agent, at a bona fide sale, fairly conducted, had a right to in- sist upon its validity — although at the time it was made, it operated prejudicially to those whose interests it was designed to pass." In Bank of Commerce v. Lanahan, 45 Md. 396, 410, it is said of trustees' sales that "it requires good and substantial grounds to justify the court in setting them aside when regularly made; for otherwise all confidence in their performance and security would be destroyed, and the public would be loth ever to bid for property thus offered." And see also the quotation on page 410. It is held that fraud on the part of others will not affect the title of an innocent purchaser at a trustee's sale; Wilson v. Miller, 30 Md. 82, 90-91; Spindler v. Atkinson, 3 Md. 409, 422-423. 2 Gibbs v. Cunningham, 1 Md. Ch. 44, 52, affirmed in Cunningham v. Schley, 6 G. 207, 231. 3 Conroy v. Carroll, 82 Md. 127, 128. 4 Kauffman v. Walker, 9 Md. 229, 241. In Schley v. Mayor, &c, 29 Md. 34, 47, it was said that the par- ties to a decree are, equally with all others, at liberty to bid and pur- chase property sold under the decree, and there is the same reason for protecting the interest acquired by a party as that of a stranger; compare Wilson v. Miller, 30 Md. 82, 90. 5 Farmers' Bank v. Clarke, 28 Md. 145, 155. 6 Deford v. Macwatty, 82 Md. 168, 177; the sale here was made by a receiver. In Kauffman v. Walker, 9 Md. 229, 240, quoted in Stewart v. §499 Sales undbk decrees. 586 §499. Purchaser's right to rejection of sale.— If objections to the ratification be raised in due time, the court will see that no undue advantage is taken of the purchaser, and he will not be compelled to comply with the terms of sale if it would be inequitable for him to do so, especially if there have been any misrepresentations, intentional or otherwise, by the trustee. This rule is necessary for the purposes of justice, as well as to encourage bidding at trustees' sales. 1 It would be a great wrong to hold a purchaser to a strict compliance with a purchase, if he became such through a mistake, and in ignor- ance of his liabilities, and more especially where such mistake arose from the statements made at the sale by the auctioneer. 2 But not every mistaken or erroneous statement by a vendor, in regard to the property, will authorize the purchaser to re- fuse to comply with the terms of sale; it must be a misrepre- sentation in a matter important to his interests by which he is actually misled. 3 Devries, 8i Md. 525, 528, it was said that "judicial sales will not be set aside for causes that the parties in interest might with a reasonable degree of diligence have avoided;" and see Farmers' Bank v. Clarke, 28 Md. 145, 155. 1 Stewart v. Devries, 81 Md. 525, 526. Compare Lamm v. Port Deposit Assn., 49 Md. 233, 240, 242; Slothower v. Gordon, 23 Md. 1, 9; Penniman v. Cole, 41 Md. 609, 611. In Weems v. Brewer, 2 H. & G. 390, 406, it is said that unless the court sees that the purchaser would be injured by the contract being enforced, he cannot be permitted to abandon it. "A purchaser claiming to be discharged from his contract, should make out a fair and plain case for relief; and it is not every defect in the subject sold or variation from the description, that will avail him." In this case the objection was a deficiency in the land sold. In Keating v. Price, 58 Md. 532, 536, it is said that "a purchaser is compellable to accept property not strictly corresponding to that described in the sale, only when the variance is so immaterial that he is considered as getting substantially what he intended to buy, and what constituted the object and inducement of his purchase." See the other principles set forth in this case. 2 Schaeffer v. Bond, 70 Md. 480, 482-483; Hunting v. Walter, 33 Md. 60, 62. s Ely v. Stewart, 2 Md. 408, 415; if the purchaser knows the repre- sentation to be false when made, it cannot be said to influence his con- duct. See also Gunby v. Sluter, 44 Md. 237, 248-249. 587 Sales under decrees. §500 §500. Parties' right to rejection of sale.— While it is. well settled that the rights of purchasers at trustees' sales must be recognized and carefully guarded, yet they always purchase subject to the approval of the court, and therefore, they must take the risk of losing the benefit of the purchase if it should happen that there are valid objections to the confir- mation of the sale. 1 It is better that the purchaser should lose the benefits of a good bargain than that the parties in interest should suffer loss by reason of an improper sale. 2 The pur- chaser has an interest in maintaining the sale, but as he buys subject to ratification by the court, he takes the risk of losing his bargain if sufficient objections exist to its final confirma- tion. 3 The benefit of the interested parties, for whom the court makes the sale, is always and chiefly regarded. Any circum- stances showing that the sale was injurious to the parties con- cerned, or that a better sale might reasonably and probably have been made, is sufficient to prevent a ratification. It is not incumbent upon the party objecting to show favoritism or an improper motive, although such proof would furnish con- clusive inducement for rejecting a proposed sale. In any case if the trustee reports that there was error, mistake, misunder- standing or misrepresentation as to the terms or manner of a sale, it may be at once rejected and a re-sale ordered without further inquiry. Where the property of infants was to be sold, even a strong doubt of the propriety of the sale has been deemed sufficient to prevent its ratification.* If the court is satisfied that the terms of sale prescribed by the decree or order did not put the property fairly on the market, and in consequence thereof it was sold for a depreciated price, thereby affecting in- juriously the interests of all parties concerned, the court should not hesitate to set aside the sale and order a resale on better 1 Conroy v. Carroll, 82 Md. 127, 128-129. 2 Deford v. Macwatty, 82 Md. 168, 178. 3 Kauffman v. Walker, 9 Md. 229, 241. 4 Andrews v. Scotton, 2 Bl. 629, 643-644. See also Cohen v. Wagner, 6 G. 236, 250-251; Johnson v. Dor- sey, 7 G. 269, 287-288; Patterson v. Miller, 52 Md. 388, 396-397; Mack- ubin v. Boarman, 54 Md. 384, 39°-.39i ; Gould v. Chappell, 42 Md. 466, 470; Bolgiano v. Cooke, 19 Md. 375, 391; Tomlinson v. McKaig, 5 G. 256, 276-277; Kauffman v. Walker, 9 Md. 229, 240. §500-501 Sales under decrees. 588 terms. The purchaser in such a case has no just ground of complaint, because he knows that he acquires no title until the sale is ratified, and it is better that he should lose the benefit of a good bargain than that the parties in interest should suffer loss by reason of the improvident or unfair terms on which the property was sold. The failure to make objections before the sale would not in itself be a sufficient reason for the ratifica- tion when it plainly appears that the sale was not fairly and properly made. 5 §501. Objections to the title. — As a general rule, in sales made by trustees acting under decrees of courts of equity in this State the rule caveat emptor applies. The court in no case undertakes to sell more than the title of the parties to the suit. 1 The purchaser, however, is bound at his peril to see that all proper parties to be bound are before the court, and that he does not take a title that may be impeached aliunde, 2 or su- 5 Deford v. Macwatty, 82 Md. 168, 178; the sale here was made by a receiver. In Bank of Commerce v. Lanahan, 45 Md. 396, 412, where ex- ceptions to a sale were filed by a creditor, the court said that -it should not be overlooked that a decided majority of the creditors strongly recommended that the sale should be ratified. 1 Sansbury v. Belt, 53 Md. 324, 332; Farmers' Bank v. Martin, 7 Md. 342, 345; Bolgiano v. Cooke, 19 Md. 37s, 391; Brown v. Wallace, 2 Bl. 585. 599; Andrews v. Scotton, 2 Bl. 629, 646; Downin v. Sprecher, 35 Md. 474, 483; Walter v. Riehl, 38 Md. 211, 217-218; Bowen v. Gent, S4 Md. 555, 57i. Compare Lamm v. Port Deposit Assn., 49 Md. 233, 242; Duvall v. Speed, 1 Md. Ch. 229, 232, 235; Speed v. Smith, 4 Md. Ch. 299, 305; Glenn v. Clapp, 11 G. & J. 1, 10; Farmers' Bank v. Thomas, 37 Md. 2 46, 257; Wicks v. Westcott, 59 Md. 270, 277; Mockbee v. Gardner, 2 H. & G. 176, 177, (sale of personalty). In Slothower v. Gordon, 23 Md. 1, 9, it was said that there is no relation of confidence and trust between the trustee and purchase*. In chancery sales in this State there is no examination of title by an officer of the court, as in England; Glenn v. Clapp, n G. & J. 1, 10; Brown v. Wallace, 2 Bl. 585, 599; Schindel v. Keedy, 43 Md. 413, 418. 2 Newbold v. Schlens, 66 Md. 585, 591; Benson v. Yellott, 76 Md. 159, 168; Brown v. Wallace, 2 Bl. 585, 600. The clause in decrees directing the trustee to sell and convey property free from the claim of parties to the suit, and those claiming under them, does not affect the interest of one who is not a party to the 589 Sales under decrees. §501 perseded by some other and paramount title. 3 He is entitled to object to the ratification of the sale, made to him, on the ground that a clear and marketable title cannot be conveyed to him by the trustee. 4 The objection to the title may be made after the final ratification of the sale, 5 if the proceeds of sale have not been distributed. 6 In sales under mortgages, al- though the trustee only sells and the purchaser only buys the interest of the mortgagor, or the parties to the cause, as the case may be, yet while the sale is in fieri and the funds are in the hands of the court, it is competent for the" court, upon any just cause being shown, affecting the title of the purchaser, to vacate the sale. 7 If, before the purchase money is distributed, the purchaser is disturbed in his possession, or exposed to be so disturbed, by any one having a clear title to the estate, which title was entirely unknown to the purchaser at the time of sale, the plain principles of justice require the sale to be rescinded. 8 So where the court sees that proceeding; Bowen v. Gent, 54 Md. 555, 570; and see Cockey v. Milne, 16 Md. 200, 207. Nor can the rights of such persons, not parties, be determined in their absence, upon exceptions to the sale; Handy v. Waxter, 75 Md. 517, 522-523. Compare Reid v. Walbach, 75 Md. 205, 221. 3 Brown v. Wallace, 2 Bl. 585, 600. If the parties to the suit, or their predecessors, acquired title by adverse possession, the purchaser may be required to take the prop- erty; as in Rieman v. Wagner, 74 Md. 478, 480; Lurman v. Hubner, 75 Md. 268, 272-273. See also Owings v. Baldwin, 8 G. 337, 351; Trus- tees v. Rother, 83 Md. 289, 295-296; Bay v. Posner, 78 Md. 42, 49. 4 Handy v. Waxter, 75 Md. 517, 521, citing Glenn v. Clapp, 11 G. & J. 1, 10. Compare Gill v. Wells, 59 Md. 492, 493-495; Bolgiano v. Cooke, 19 Md. 375, 391; Duvall v. Speed, 1 Md. Ch. 229, 235; Herzberg v. War- field, 76 Md. 446, 449. See also, upon this point, post, ''specific performance." 5 Ridgely v. McLaughlin, 3 H. & McH. 220, 222; in this case the pro- ceeding was by original bill; stated in Marbury v. Stonestreet, 1 Md. 147, 155. 6 Preston v. Fryer, 38 Md. 221, 224; Connaughton v. Bernard, 84 Md. — ; post, sec. 511. After the purchase money has been paid and distributed, if the purchaser should be evicted by a superior title, he would be without remedy and would have to submit to the loss; Glenn v. Clapp, 11 G. & J. 1, 10; Goldsborough v. Ringgold, 1 Md. Ch. 239, 242. 7 Heuisler v. Nickum, 38 Md. 270, 277-278. 8 Glenn v. Clapp, 11 G. & J. 1, 10; as between the parties to whom §501 Sales under decrees. 590 the purchaser is liable to be disturbed by a proceeding by in- fants, parties to the cause, upon grounds of defects in the pro- ceedings manifest on their face, it would be inequitable to com- pel him to take title. 9 The court makes no warranty of the title sold by the trustee. 10 But where the trustee represents the title to be indisputable and under that belief the purchase was made, the court would not permit the injustice of requiring a compliance with the terms of sale, even after final ratification; the purchaser is entitled to be relieved if he cannot procure such title under the decree as the trustee undertook to sell. 11 An objection, made by a purchaser, because of a defect in the title of the property, will not be sustained if he had notice of what the trustee was selling, and if he purchased with full knowledge of the defect alleged; it could not be said that such a pur- chaser was in any way misled by the trustee, or that any injus- tice would be done him by requiring him*to take the property in the condition he knew it to be when he made his bid. 12 the proceeds of sale are ultimately to be paid, and the purchaser, the transaction is so far in fieri that a total failure of consideration should prevent them from receiving the stipulated price; followed in Earle v. Turton, 26' Md. 23, 35-36; Preston v. Fryer, 38 Md. 221, 224. See also Ducker v. Belt, 3 Md. Ch. 13, 21; Stewart v. Beard, 3 Md. Ch. 227, 229. 9 Earle v. Turton, 26 Md. 23, 35; Fox v. Reynolds, 50 Md. 564, 572- 573; compare Newbold v. Schlens, 66 Md. 585, 590. 10 Brown v. Wallace, 2 Bl. 585, 599; compare Bolgiano v. Cooke, 19 Md. 375, 395, and Wampler v. Shipley, 3 Bl. 182, 183. In Andrews v. Scotton, 2 Bl. 629, 646, the chancellor said that in consequence of the rule caveat emptor no examination into the title after the sale is necessary, or can be called for by the purchaser, what- ever may be either its patent or latent defects; and in Brown v. Wal- lace, 2 Bl. 585, 599, the chancellor said that the court cannot listen to any objection as to defect of title, or be involved in any inquiry as to its validity. On appeal in this latter case it was held that as it appeared that the trustee declared, at the time of sale, that he only sold the estate of certain parties, there could be no pretense of warranty; Brown v. Wallace, 4 G. & J. 479, 507. Compare Gibbs v. Cunningham, 1 Md. Ch. 44, 46, affirmed in Cunningham v. Schley, 6 G. 207, 231. "Preston v. Fryer, 38 Md. 221, 224. 12 Stewart v. Devries, 81 Md. 525, 526-529. Compare Schaeffer v. Bond, 70 Md. 480, 482-483; Gibbs v. Cunningham, 1 Md. Ch. 44, 47; Farmers' Bank v. Martin, 3 Md. Ch. 224, 226-227; Ely v. Stewart, 2 Md. 408, 415. 591 Sales under decrees. §502 §502. Incumbrances on the property. — Unless it is expressly stipulated to the contrary by the terms of sale, trus- tees' sales are made subject to the incumbrances which are on the property; 1 and it is incumbent on the purchaser to show that his purchase was made free from all incumbrances before he can be allowed for any such. 2 But if the trustee makes any representation to the bidder before the sale that the estate shall be or is clear of all incumbrances, or that the title is better or different from that which would flow from the proceedings, and the promise or representation cannot be complied with, or turns out to be erroneous, the sale will be set aside. 3 When the property is found to be subject to incumbrances, the purchaser discovering the defect, at the proper time, may be relieved from his purchase by asking for a rescission of the sale ;* but he can- not be permitted, while holding on to his purchase, to insist upon having his title perfected by the application of the pro- ceeds of sale to the extinguishment of the claims of incum- brancers not parties to the suit. The court is not bound to disencumber the title of all liens. 6 But if the trustee announces that a sufficient amount of the purchase money will be retained to pay the claims, the court will see that this is done and the purchaser has no ground of complaint and cannot avoid the sale. 6 iSansbury v. Belt, S3 Md. 324, 332; the purchasers are presumed to have made their bids and bought for so much less on that account, if there are incumbrances. 2 Farmers' Bank v. Martin, 7 Md. 342, 345. In Hunting v. Walter, 33 Md. 60, 62, the sale was set aside be- cause it appeared that the purchaser bought under the impression and belief that he was buying free from all incumbrance except that men- tioned in the advertisement. 3 Speed v. Smith, 4 Md. Ch. 299, 305; Andrews v. Scotton, 2 Bl. 629, 647. Compare Sansbury v. Belt, 53 Md. 324, 332; Schaeffer v. Bond, 70 Md. 480, 482; Brumbaugh v. State, 54 Md. 641, 647. *Herzberg v. Warfield, 76 Md. 446, 449; and see Heuisler v. Nickum, 38 Md. 270, 277-278. 5 Duvall v. Speed, 1 Md. Ch. 229, 232, 23s ; stated in Walter v. Riehl, 38 Md. 211, 217. «Speed v. Smith, 4 Md. Ch. 299, 308; see the facts in this case. In Schaeffer v. Bond, 70 Md. 480, 482, the property was sold by a mortgagee clear of all incumbrances, but there were in fact certain §503 Sales under decrees. 592 §503. Want of jurisdiction ; erroneous decree.— If it be apparent on the face of the proceedings that there is an entire want of jurisdiction of the court to decree the sale of the property, the purchaser, 1 or a party to the cause, may, by ex- ception to the ratification of the sale, attack the validity of the decree. 2 But when a decree is passed in a cause, in which the court has jurisdiction, directing the sale of property, and a sale is made and reported, an exception- by the purchaser to the final ratification does not open for review the decree direct- ing the sale; 3 nor does such an exception when taken by a party to the cause. Courts have no power under exceptions to a sale made under a decree, to review and decide upon the merits of the decree; for as between the parties to the suit, the decree is conclusive, and must be executed unless it be reversed. Errors and irregularities can only be reached and corrected by a direct appeal from the decree, or by a bill of re- view for errors apparent. 4 Parties in interest may of course come in and object to the ratification of a sale, but such ob- liens upon it. The seller offered to retain enough of the purchase money to pay off the liens, but the court held that by reason of the mistake the purchaser could not be held. In Speed v. Smith, 4 Md. Ch. 299, 307-308, cited in Schaeffer v. Bond, 70 Md. 480, 482, the trustee announced that there were liens against the property, and that a suffi- cient amount of the purchase money would be retained to pay the claims; the court said that it would see that this stipulation was per- formed, and as there was enough purchase money to remove the in- cumbrance the purchaser would not be injured. The sale was there- fore ratified. 1 As in Fox v. Reynolds, 50 Md. 564, 570, 572; Hamilton v. Traber, 78 Md. 26, 28, 35; Willis v. Hodson, 79 Md. 327, 329; Handy v. Waxter, 75 Md. 517. 523. 2 Slingluff v. Stanley, 66 Md. 220, 224. 3 Newbold v. Schlens, 66 Md. 585, 590; Benson v. Yellott, 76 Md. 159, 168; Vickers v. Tracey, 22 Md. 196, 198-199; compare Bernstein v. Hobelman, 70 Md. 29, 37-38. Similarly an appeal from an order ratifying an auditor's account does not bring the decree for sale before the court for review; Porter v. Askew, 11 G. & J. 346, 350-351, stated in Phelps v. Stewart, 17 Md. 231, 242; Vickers v. Tracey, 22 Md. 196, 199; Bull v. Pyle, 41 Md. 419, 422. See ante, sec. 328, note 7. 4 Slingluff v. Stanley, 66 Md. 220, 224, 226; in this case the court said that the defendant "adopted the novel method of exception to the rati- fication of the sale in order to have the decree reviewed and declared 593 Sales under decrees. §503-504 jections must be as to the mode and manner of the sale, and not to the proceedings under which the property is sold. Courts have no power under exceptions to a sale to hear and decide upon the merits of a bill in equity. 6 The purchaser is not entitled to except to the ratification of a sale on the ground that no sufficient evidence was produced to justify the decree; the purchaser in good faith would not be affected by a reversal of the decree on appeal on that ground. 6 If the court has jurisdiction of the subject-matter and of the parties, no irregu- larities in the proceedings can affect the title of the purchaser. 7 §504. Inadequacy of price. — A public sale, made by a trustee under a decree of court, if in all other respects unex- ceptionable, will not be set aside merely for inadequacy of price unless the price is so grossly inadequate as to indicate a want of reasonable judgment and discretion in the trustee. 1 Mere void for supposed defects in the proceedings upon which the decree is founded." Compare Handy v. Waxter, 75 Md. 517, 523. This rule, however, does not apply to mortgage sales under an assent to a decree, in Baltimore city; Black v. Carroll, 24 Md. 251, 255; ante, sec. 484. In Dungan v. Vondersmith, 49 Md. 249, 252, it was said that "ob- jections to the decree and the bond, as grounds of exception to the rat- ification of the sale, are alike untenable as far as the exceptant is con- cerned. The validity of the sale does not, as a general rule, depend upon the judicial correctness of the decree, or the formal execution of a sufficient bond. The one may be erroneous in law, and the other in- formal and insufficient, and yet the sale be above all exception." 5 Patapsco Co. v. Elder, 53 Md. 463, 465; in this case exceptions to the ratification of a sale under a mortgage, were filed by a person al- leging that he, the exceptant, had obtained a judgment against the mortgagor, and had filed a bill in equity to set aside the mortgage as fraudulent; it was held that the question whether or not the mortgage was fraudulent could not be heard in this collateral way. "Newbold v. Schlens, 66 Md. 585, 590-591; Bolgiano v. Cooke, 19 Md. 375, 395- As to the title of the purchaser, after a reversal of the decree, see post, sec. 516. 7 Benson v. Yellott, 76 Md. 159, 168; Rieman v. Von Kapff, 76 Md. 417, 422; see post, sec. 517. iGlenn v. Clapp, 11 G. & J. 1, 9; Horsey v. Hough, 38 Md. 130, 137; Loeber v. Eckes, 55 Md. I, 2; Hintze v. Stingel, 1 Md. Ch. 283, 284; Gibbs v. Cunningham, 1 Md. Ch. 44, 48; affirmed in Cunningham v. 38 §504 Sales under decrees. 594 inadequacy of price standing by itself is not sufficient to vacate a sale unless it be so gross and inordinate as to indicate some mistake or unfairness in the sale, for which the purchaser is re- sponsible, or fraud, or misconduct on the part of the trustee to whom the management of the sale is committed. 2 In general, a sale will not be set aside for inadequacy of price, unless the inadequacy was the result of fraud, surprise, mistake or unfair- ness in the sale. 8 Unless the inadequacy of price is so great as to do injury to parties not in default, the sale will not be set aside because of some diversity of opinion among witnesses as Schley, 6 G. 207, 231; Chilton v. Brooks, 69 Md. 584, 587; Condon v. Maynard, 71 Md. 601, 606. In Johnson v. Dorsey, 7 G. 269, 292, it was held that a public sale of property would not be set aside on the ground that property worth twenty thousand dollars sold for about twelve thousand and five hun- dred; see the other instances cited in this case; stated in Mahoney v. Mackubin, 52 Md. 357, 367. In Cohen v. Wagner, 6 G. 236, 251, a sale of property said to be well worth fifteen to twenty thousand dollars or more, was made for thirteen thousand, and the court declined to disturb the sale; stated in Johnson v. Dorsey, 7 G. 269, 293-294. In Shidy v. Cutter, 54 Md. 674, 678, it is said that the value placed" upon property by its owner when exchanged for other property is no safe or just criterion of its market value. In Glenn v. Wootten, 3 Md. Ch. 514, 520, it is said that the true test of the value of property is what it will bring in the market at public sale; see also Johnson v. Dorsey, 7 G. 269, 292. See note to Mayor, &c, v. Smith, 80 Md. 458, in the Daily Rec- ord, March 27, 1896, to the effect that a fairly advertised public sale, fairly made by a trustee, is not a forced sale. 2 Johnson v. Dorsey, 7 G. 269, 290-296; Chilton v. Brooks, 69 Md. 584, 587; Garritee v. Popplein, 73 Md. 322, 325-326; Bank v. Lanahan, 45 Md. 396, 412; Warfield v. Ross, 38 Md. 85, 92; Loeber v. Eckes, 55 Md. 1, 2; Hubbard v. Jarrell, 23 .Md. 66, 83; .Dircks v. Logsdon, 59 Md. 173, 178; House v. Walker, 4 Md. Ch. 62, 64; Gould v. Chappell, 42 Md. 466, 473; Condon v. Maynard, 71 Md. 601, 606. 3 Cohen v. Wagner, 6 G. 236, 251, 254. In Mahoney v. Mackubin, 52 Md. 357, 366, it is said that inad- equacy of price may be evidence of fraud or misconduct on the part of the trustee and in connection with other evidence, may be regarded as a reason for setting aside a sale. Compare Robinson v. Robinson, 4 Md. Ch. 176, 188, and on ap- peal as Wilson v. Farquharson, 5 Md. 134, 138-139. 595 Sales under decrees. §504-505 to the value of the property. 1 A resale will not be ordered as a mere experiment 5 Whether or not the price of the prop- erty sold is inadequate, depends upon the state of circum- stances existing at the time the sale is made, and not upon subsequent events." §505. Inadequacy of price with other circum- stances. — But where any other just cause appears to render the propriety of the sale doubtful, the fact that it was made at an inadequate price is proper to be considered. 1 Such a fact is a strong auxiliary argument in combination with circum- stances calculated to cast doubt or suspicion upon the correct- ness of the sale. 2 In cases of private sales the rule as to inadequacy of price is substantially the same as in public sales. 3 Private sales are, however, more carefully scrutinized than public sales; and especially, where a decree directs a public sale and a private sale is made, the court will listen to an objection 4 Garritee v. Popplein, 73 Md. 322, 325; Farmers' Bank v. Clarke, 28 Md. r45, 155. Compare Chilton v. Brooks, 71 Md. 445, 455; Bank v. Lanahan, 45 Md. 396, 411; Johnson v. Dorsey, 7 G. 269, 291; Schwanebeck v. Smith, 77 Md. 314, 321; Glenn v. Wootten, 3 Md. Ch. 514, 520. 5 Bank v. Lanahan, 45 Md. 396, 411-412; Garritee v. Popplein, 73 Md. 322, 326. 6 Tyson v. Mickle, 2 G. 376, 384; Gibbs v. Cunningham, 1 Md. Ch. 44, 49; affirmed in Cunningham v. Schley, 6 G. 207, 231; Kelso v. Jes- sop, 59 Md. 114, 121. iGlenn v. Clapp, 11 G. & J. 1, 9; Loeber v. Eckes, 55 Md. 1, 3; Hintze v. Stingel, i Md. Ch. 283, 284; Chilton v. Brooks, 69 Md. 584, 587; Condon v. Maynard, 71 Md. 601, 606. Compare Schroeder v. Young, 161 U. S. 334, 338. 2 Johnson v. Dorsey, 7 G. 269, 294; Warfield v. Ross, 38 Md. 85, 92; Loeber v. Eckes, 55 Md. 1, 3. The fact that a mortgagee is the purchaser at a sale to foreclose a mortgage subjects the sale to a stricter construction of the rules than usual, and makes the inadequacy of price a weightier reason for inter- fering on behalf of the mortgagor; Mahoney v. Mackubin, 52 Md. 357, 366; Horsey v. Hough, 38 Md. 130, 139; Hubbard v. Jarrell, 23 Md. 66, 85; Chilton v. Brooks, 69 Md. 584, 587; Loeber v. Eckes, 55 Md. 1, 3; see ante, sec. 456. 3 See the following cases in which private sales were made: Gould v. Chappell, 42 Md. 466, 473; Gibbs v. Cunningham, 1 Md. Ch. 44, 48, af- firmed in Cunningham v. Schley, 6 G. 207, 231. §505-506 Sales under decrees. 596 on the ground of inadequacy of price which it would not con- sider if the decree had been followed. 4 And if a sale is made under a deed or a will by a trustee having large discretionary powers the court will not ratify it if made at an inadequate price, although both the trustee and the purchaser act in good faith. 5 §506. Deficiency of land. — In sales by trustees, as in sales by private persons, it frequently occurs that the land is found to contain less or more ground than was represented to be sold. Questions arise whether the vendors or purchasers in such cases may rescind their contracts; or, if not, whether they are entitled to an abatement or increase in the purchase price. 1 In cases of deficiency, when the purchaser. is entitled to relief, his right is to have what the vendor can give, with an abatement out of the purchase money for so much as the quantity falls short of the representation. A ratable abatement 4 Latrobe v. Herbert, 3 Md. Ch. 375, 380-381; Kelso v. Jessop, 59 Md. 114, 120; compare Gould v. Chappell, 42 Md. 466, 473. 5 Gould v. Chappell, 42 Md. 466, 473. In the following cases the inadequacy of price was not sufficient to set a.side the sale: Garritee y. Popplein, 73 Md. 322, 325; Bank v. Lanahan, 45 Md. 396, 411-412; Warfield v. Ross, 38 Md. 85, 92; Ma- honey v. Mackubin, 52 Md. 357, 367; Dircks v. Logsdon, 59 Md. 173, 178; House v. Walker, 4 Md. Ch. 62, 64; Thomson v. Ritchie, 80 Md. 247, 252-253; Md. Society v. Smith, 41 Md. 516, 522; Shidy v. Cutter. 54 Md. 674, 678-679; Dungan v. Vondersmith, 49 Md. 249, 253. In the following cases sales were set aside for inadequacy of price in connection with other circumstances: Glenn v. Clapp, 11 G. & J. I, 9; Horsey v. Hough, 38 Md. 130, 137; Loeber v. Eckes, 55 Md. 1, 3-4; Hubbard v. Jarrell, 23 Md. 66, 82-85; Hintze v. Stingel, 1 Md. Ch. 283, 286; Kauffman v. Walker, 9 Md. 229, 241; Gould v. Chappell, 42 Md. 466, 473; Chilton v. Brooks, 69 Md. 584, 587; Kelso v. Jessop, 59 Md. 114, 121; Latrobe v. Herbert, 3 Md. Ch. 375, 380-381; State v. Brookes, 2 Bl. 42, 43, note case. In the following cases, the inadequacy of price in connection with other circumstances was not sufficient to set aside the sale: Chil- ton v. Brooks, 71 Md. 445, 455; Johnson v. Dorsey, 7 G. 269; Wagner v. Cohen, 6 G. 236, 251-253; Dircks v. Logsdon, 59 Md. 173, 178; Farm- ers' Bank v. Clarke, 28 Md. 145, 155; Gibbs v. Cunningham, 1 Md. Ch. 44. 48-49. affirmed in Cunningham v. Schley, 6 G. 207, 231; Tyson v. Mickle, 2 G. 376, 384; Condon v. Maynard, 71 Md. 601, 607. ' iSee Hoffman v. Johnson, 1 BI. 103, 109-111. 597 Sales under decrees. §506-507 of price would usually leave the parties in nearly the same rela- tive situation in which they would have stood if the true quan- tity had been originally known ; it is not, in general, proper to rescind the sale. 2 But if the variation be such as to disappoint the main object of the purchaser, the sale may be set aside. 3 §507. When abatement may be bad, and how. — Where land is sold by the acre, at so much per acre, and there is a deficiency in the number of acres, the purchaser is entitled to be allowed for the deficiency. 1 Where land is sold in gross, . for a sum certain, upon a statement of the number of acres, without any qualifying words, such as, "more or less," .or "by estimation," quantity is to be regarded as a material considera- tion with the vendee. Although the land is not bought or sold by the acre, the presumption is that in fixing the price, regard was had by both parties to the quantity which both supposed the land to consist of. 2 But if the agreement is to pay a certain 2 Marbury v. Stonestreet, I Md. 147, 153; Kent v. Carcaud, 17 Md. 291, 300; compare Penniman v. Cole, 41 Md. 609, 611-612. In making compensation for the deficiency all circumstances that give value to the property must be taken into account, as the pur- chaser is not always entitled to compensation ratably with the number of acres; Marbury v. Stonestreet, 1 Md. 147, 154. Compare Keating v. Price, 58 Md. 532, in which a sale was set aside on account of a misdescription of the land; see the rules laid down in this case. 3 Weems v. Brewer, 2 H. & G. 390, 406; Andrews v. Scotton, 2 Bl. 629, 633, 645. In Anderson v. Foulke, 2 H. & G. 346/350, it was said by John- son, Ch., that where a tract of land is sold as containing a given num- ber of acres, when it is discovered that less is included than was con- ceived at the time of the sale, a "deduction will be made unless the de- ficiency is such as would have prevented the contract if known at the time of the purchase; that is, the deficiency appearing to be in that part which was the chief inducement to purchase." iBrown v. Wallace, 4 G. & J. 479, S08. In Brown v. Wallace, 2 Bl. 585, 596, it was said that it was the practice of the court where its trustees have made a sale at so much per acre, to order a survey as a matter of course; similarly in Andrews v. Scotton, 2 Bl. 629, 645; Wampler v. Shipley, 3 Bl. 182, 183. 2 Marbury v. Stonestreet, 1 Md. 147, 152-153; Kent v. Carcaud, 17 Md. 291, 298-299; Mendenhall v. Steckel, 47 Md. 453, 465; Balto. &c, So- ciety v. Smith, 54 Md. 187, 203. The exhibition of a plat is equivalent to an averment of the §507 Sales under decrees. 598 sum in gross for a tract of land, by its name, without mention of the quantity, or reference to a plat, or stipulation on the part of the vendors, there can be no claim for an abatement. 3 Where quantity does not enter into the essence of the contract, the purchaser is not entitled to an abatement in the absence of fraud or misrepresentation. 4 And when the qualifying words "more or less," or equivalent descriptive expressions, are used, they import that quantity does not enter, into the essence of the con- tract; and, therefore, neither party can claim relief either for a deficiency or a surplus. 5 Upon discovering the deficiency, quantity of land; Marbury v. Stonestreet, I Md. 147, 152; Kent v. Carcaud, 17 Md., 291, 299. A survey in order to be binding should be made under the order of the court: Marbury v. Stonestreet, 1 Md. 147, 161-162. 3 Kent v. Carcaud, 17 Md. 291, 298; Stull v. Hurtt, 9 G. 446, 450. 4 In case of fraud, the sale would be invalid; Moncrieff y. Goldsbor- ough, 4 H. & McH. 281, 283; Hurt v. Stull, 3 Md. Ch. 24, 26, 27. 5 Tyson v. Hardesty, 29 Md. 305, 309; Jenkins v. Bolgiano, 53 Md. 407, 420-421; Hall v. Mayhew, 15 Md. 551, 568; (see the opinion of the court below, page 561, quoted in Slothower v. Gordon, 23 Md. 1, 9) ; Jones v. Plater, 2 G. 125, 128; Stull v. Hurtt, 9 G. 446, 451; Hurt v. Stull, 3 Md. Ch. 24, 27; Smallwood v. Hatton, 4 Md. Ch. 95, 98; Sloth- ower v. Gordon, 23 Md. 1, 9-10; Balto., &c, Society v. Smith, 54 Md. 187, 203. In Hurt v. Stull, 3 Md. Ch. 24, 28, it is said that there may be cases in which the deficiency from its magnitude would raise the pre- sumption of fraud, imposition or mistake, and in such cases, the words "more or less" would not be permitted to stand in the way of relief. The terms ''more or less," and similar terms, are stretched to cover a very large proportion of the land, certainly in many cases far beyond the contemplation of the parties. The land office rule in grants from the State was that they should cover no more than ten per cent.; Brown v. Wallace, 2 Bl. 585, 596; Andrews v. Scotton, 2 Bl. 629, 645. In Slothower v. Gordon, 23 Md. 1, 2, 10, the court required full pay- ment in a sale of 187 acres, when there were only 134, a deficiency of 53 acres; in Hall v. Mayhew, 15 Md. 551, 567, the sale was of 482 acres, but there were only 378, a deficiency of 104 acres. The word "about" is not equivalent to "more or less"; Balto. Society v. Smith, 54 Md. 187, 204. In Goldsborough v. Ringgold, 1 Md. Ch. 239, 243, it was held that if a purchaser would be refused redress upon the ground of a de- ficiency in the number of acres, he could not be obliged, under the same circumstances, to pay for an excess. Compare also Penniman v. Cole, 41 Md. 609, 611-612; Mar- bury v. Stonestreet, 1 Md. 147, 153. 599 Sales under decrees. §507-508 the purchaser should at once apply to the court for relief. If before ratification, by petition f if after ratification, by petition or bill, as may be proper. 7 The confirmation of the sale does not impair the claim for abatement, unless the application is delayed for an unreasonable time. 3 In some cases purchasers have maintained original bills or bills of review against the trustee appointed to sell the land, and the parties to the suit, for an abatement; 9 and this is necessary when the sale has been finally ratified and the funds distributed and the orders en- rolled. 10 §508. Certain other objections to the ratification. — The abatement of the suit by the death of a party, before the sale, is good reason for setting aside the sale upon the objection of the purchaser. 1 The fact that the papers in a chancery pro- ceeding, in which the property was previously sold, have been lost, and that there are no docket entries thereof, is not neces- sarily v. Stonestreet, I Md. 147, 154; compare Weems v. Brewer, 2 H. & G. 390, 395-396» per Bland, Ch. 'See ante, sees. 284-300; Marbury v. Stonestreet, 1 Md. 147, 158. 8 Marbury v. Stonestreet, 1 Md. 147, 158, 161. 9 As in Brown v. Wallace, 4 G. & J. 479, 48s ; Marbury v. Stonestreet, 1 Md. 147, 158, 162. "Marbury v. Stonestreet, 1 Md. 147, 158. In the following cases, objections on account of deficiency were sustained: Kent v. Carcaud, 17 Md. 291, 300; Marbury v. Stonestreet, 1 Md. 147, 152; Balto., &c, Society v. Smith, 54 Md. 187, 204. In the following cases, objections on account of deficiency were not sustained, the words "more or less" being used: Tyson v. Har- desty, 29 Md. 305, 309; Hall v. Mayhew, IS Md. 551, 568; Jones v. Plater, 2 G. 125, 128; Slothower v. Gordon, 23 Md. 1, 10. Other cases in which the objection was not sustained are: Jen- kins v. Bolgiano, S3 Md. 407, 421; Weems v. Brewer, 2 H. & G. 390, 406; Stull v. Hurtt, 9 G. 446, 451 ; Hurt v. Stull, 3 Md. Ch. 24, 27; Brown v. Wallace, 2 Bl. 585, 595-597; Smith v. Chaney, 4 Md. Ch. 246, 247-249. iGlenn v. Clapp, 11 G. & J. 1, 8; Schley v. Mayor, &c, 29 Md. 34. 46; Holthaus v. Nicholas, 41 Md. 241, 264-265; see also Appold v. Prospect Assn., 37 Md. 457, 466. But an irregularity of this nature does not render the sale void when ratified, or furnish ground for impeaching the purchaser's title in a collateral proceeding; Schley v. Mayor, &c, 29 Md. 34, 46; and see Rowland v. Prather, S3 Md. 232, 241-242, 245. §508 Sales under decrees. 600 sarily a valid objection to the ratification. 2 The sale and convey- ance, pending the suit, of their interests by some of the parties to the cause, is not an objection to a sale, as the purchasers from the parties could acquire no title, and the title of the pur- chaser under the decree could not thereby be impeached. 3 Objections to a sale, if made by one party, are often entitled to no consideration; yet when they come from another, might require a sale to be set aside. 4 Thus a party to the cause can- not make an objection that the trustee did not sell the interest of the parties to the suit, as the purchasers alone could make such an objection since they alone would be injured; 5 an ob- jection that the property was advertised as subject to a ground rent somewhat smaller than the correct amount was not sus- tained when made by a party to the suit. 6 The following ob- jections do not seem to be grounds for setting the sale aside at the instance of the purchaser : the fact that the trustee failed to file a proper bond; 7 that he sold more land than was neces- sary; 8 that due notice of the sale was not given; 9 that junior 2 Rieman v. Wagner, 74 Md. 478, 479-480. 3 Brown v. Wallace, 2 Bl. 585, 595.. 4 Perrin v. Keithley, 9 G. 412, 419. 5 Gibbs v. Cunningham, 1 Md. Ch. 44, 47, affirmed in Cunningham v. Schley, 6 G. 207, 231; in the former case it was also said that if a party to the suit knew of any fact which would disperse the cloud upon the title, and omitted to communicate it to the trustee in due time, it did not become him, after the sale, to interpose an objection upon the ground of title; compare Johnson v. Dorsey, 7 G. 269, 289; see also Johnson v. Hambleton, 52 Md. 378, 386-387. 6 Brooks v. Hays, 24 Md. 507, 519; the tendency of such an error would be to improve the sale rather than to injure it, and the purchaser, if any one, would be the party most apt to complain. See for other objections by parties, Dungan v. Vondersmith, 49 Md. 249, 252-253; as to usury, see Mahoney v. Mackubin, 54 Md. 268, 273. 7 Speed v. Smith, 4 Md. Ch. 299, 309-310; Bolgiano v. Cooke, 19 Md. 375, 396-397 ; see ante, sec. 489. 8 Brown v. Wallace, 2 Bl. 585, 599; same case on appeal, 4 G. & J. 479, 506-507. 9 Bolgiano v. Cooke, 19 Md. 375, 397; here, however, the court con- sidered the objection, although it said, page 398, that it was unable to see how the purchaser could be injured by the irregularity. In Speed v. Smith, 4 Md. Ch. 299, 305, the chancellor gave con- sideration to an objection by the purchaser that the land sold for too much; there was no misleading representation by the trustee. €01 Sales under decrees. §508-509 incumbrancers were not made parties to the foreclosure of a prior mortgage. 10 An important ground of exception is that based on the principle that a trustee, or one acting in a fidu- ciary capacity, cannot purchase at his own sale. This prin- ciple has been repeatedly sanctioned and enforced j 11 nor can a trustee be permitted to buy, at his own sale, as agent for an- other person. 12 §509. The exceptions. — A purchaser filing exceptions on the ground that he may be disturbed in his title must state affir- matively facts which would justify the apprehension. 1 When exceptions are filed, the burden of proof is upon the exceptant. 2 The averments of the exception must be supported by proof. Mere exceptions on questions of fact, without evidence, al- though under oath, and although the answer to the exception does not deny their averments, must be overruled. 3 Excep- tions upon questions of fact, in order to be sustained, must be 10 Leonard v. Groome, 47 Md. 499, 505. "Korns v. Shaffer, 27 Md. 83, 90, and cases cited; Hopper v. Hop- per, 79 Md. 400, 404; Williams v. Marshall, 4 G. & J. 376, and Brantly's note. Compare Wilson v. Miller, 30 Md. 82, 90, where a person was held entitled to purchase at a sheriff's sale in a case in which he was the plaintiff as administrator; and see Spindler v. Atkinson, 3 Md. 409, 424, in which it was said that in some cases the trustee may purchase the trust estate, in order to protect the beneficiaries. See also Gregory v. Lenning, 54 Md. 51, 58. 12 North Balto. Assn. v. Caldwell, 25 Md. 420, 423-424; compare Eichelberger v. Hawthorne, 33 Md. 588, 594. 1 Bolgiano v. Cooke, 19 Md. 375, 396; see the remarks upon the ex- ceptions here. In Glenn v. Clapp, 11 G. & J. 1, 9, it was said that the fact that a bill was pending at the time of the sale, to vacate the decree, and the deed upon which it was founded, without disclosing the grounds upon which it proceeds, or that it had resulted in any order to restrain pro- ceedings under the decree, could furnish no reason to set aside the sale; stated in Bolgiano v. Cooke, 19 Md. 37s, 396; compare Herzberg v. Warfield, 76 Md. 446, 449-450. 2 Speed v. Smith, 4 Md. Ch. 299, 306; compare Bank of Commerce v. Lanahan, 45 Md. 396, 410; State v. Ramsburg, 43 Md. 325, 334. 3 Roberts v. Loyola Assn., 74 Md. 1, 6-7; Haskie v. James,' 75 Md. 568, 573. Compare Tyson v. Mickle, 2 G. 376, 384. §509-510 Sales under decrees. . 602 supported by preponderating evidence sufficient to set aside the report of the trustee. 4 §510. Final ratification.— The code provides that no sale made by a trustee appointed by the court shall be valid un- less such sale is confirmed by the court. 1 Until its final ratifi- cation, a sale made by order of the court is an executory con- tract, open to objections. 2 Upon ratification the contract of purchase becomes complete. 3 The purpose of the order of final ratification is to perfect the sale and establish the rights of the purchaser. 4 An order ratifying a sale where no bond *Bolgiano v. Cooke, 19 Md. 37s, 397- In State v. Ramsburg, 43 Md. 325, 334-335. it was held that the de- cision of the court upon issues raised by exceptions was conclusive and could not be impeached on the ground of informality in the proceed- ings, or error or mistake of the court in the matter adjudicated. In Andrews v. Scotton, 2 Bl. 629, 644, it is said that although ob- jections are seldom made by any others than those directly interested, yet the court will avail itself of information from every quarter; see also Lawson v. State, 2 Bl. 638, 639, note case; Glenn v. Wootten, 3 Md. Ch. 514, 516-517. In Griffith v. Hammond, 45 Md. 85, 88, real estate was devised to certain persons; but, before the death of the testator, was conveyed by him to another. Upon a bill by a creditor to vacate the deed as fraudulent, the grantee was made a party, but not the devisees. After the sale, exceptions to it were filed by the devisees on several grounds. The court said that the exceptants were not parties to the proceedings under which the property was sold, and were not claiming any inter- est in the fund arising from the sale. Under such circumstances they had no right to object to the ratification of the sale. Not being par- ties to the proceedings for the sale, their rights and interests could not be affected by the sale. In Patapsco Co. v. Elder, 53 Md. 463, 464-465, mortgaged prop- erty was sold under a power in the mortgage. Exceptions to the rati- fication were filed by a judgment creditor of the mortgagor, who had filed a bill to set aside the mortgage as fraudulent. In Wicks v. Westcott, 59 Md. 270, 274, a similar sale was ex- cepted to by a judgment creditor of the mortgagor, and the exceptions were sustained. 1 Code, art. 16, sec. 202. 2 Bolgiano v. Cooke, 19 Md. 375, 391 ; Hunting v. Walter, 33 Md. 60, 62; ante, sec. 486. 3 Lurman v. Hubner, 75 Md. 268, 273; ante, sec. 486. Compare Sloan v. Safe Deposit Co., 73 Md. 239, 246-247. 4 Vickers v. Tracey, 22 Md. 196, 198. 603 Sales under decrees. §510-511 or security is taken is considered as amounting to a decree, for the payment of the purchase-money. 5 In the absence of clear proof of mistake, misrepresentation or fraud, the ratified re- port of the trustee is the only evidence of the contract by which the court is governed; and unless it be impeached, it must be considered as conclusive upon the subject. 6 §511. Objections after final ratification. — Although it has been held that after the final ratification of a sale by a trustee, the objection of the purchaser to the ratification comes too late and cannot be considered, 1 yet it is said that if there should appear, either before or after the sale has been ratified, any injurious mistake, misrepresentation or fraud, the order of ratification may be rescinded and the reported sale rejected. 2 Thus, where, after the final ratification of the sale, the pur- chaser refused to comply with the terms of sale and was pro- 5 Richardson v. Jones, 3 G. & J. 163, 186, 187-188; Boyle v. Schindel, 52 Md. 1, 6-7. "Brown v. Wallace, 2 Bl. 585, 595; Goldsborough v. Ringgold, 1 Md. Ch. 239, 241; in the latter case, where, after ratification, a mistake was alleged by one of the parties, it \\as said that the onus of proving the mistake was on the party alleging it. In Bruner v. Ramsburg, 43 Md. 560, 568, it was held that resort to parol proof to vary the tenor of the trustee's report of sale would be against the rule applicable to the construction of written instru- ments. iBrown v. Gilmor, 8 Md. 322, 326-328; in this case it was said that "'public policy and justice to parties interested require that the ratifica- tion of judicial sales should be final and conclusive unless irregularly made by the court, or unless the purchaser was prevented by misrep- resentation, surprise or fraud, from making his objection to the ratification in due time; and it must further appear that such mis- representation, surprise or fraud resulted from some act or conduct upon the part of the trustee or on the part of those interested in the proceedings;" see the case as stated in Hunting v. Walter, 33 Md. 60, 62. Compare Gatchell v. Presstman, 5 Md. 161, 163; Brown v. Wal- lace, 4G. &J. 479, S07. 2 Andrews v. Scotton, 2 Bl. 629, 644; see also the cases stated in Mar- bury v. Stonestreet, 1 Md. 147, IS4-ISS- , After objections to a sale have been overruled by the lower court, and by the court of appeals, the validity of the sale cannot be contested further by the same party; Anderson v. Foulke, 2 H. & G. 346, 371- §511-512 Sales under decrees. 604 ceeded against by attachment, and he prayed to be released from the sale because he had bought the property under a misun- derstanding as to the incumbrances, it was held proper to an- nul the sale. 3 And where a trustee sold property, represent- ing the title to be indisputable, and the purchaser some months after the final ratification discovered that the title was defective, the sale was rescinded and the trustee was required to refund the purchase money, which had not been distributed. 4 §512. Ownership before and after final ratification.— By the sale to him the purchaser acquires an inchoate and equitable title which becomes complete upon final ratification; whereupon the ratification retroacts, and the purchaser is re- garded by relation as the owner from the period of the sale. He is entitled to the intermediate rents and profits of the estate. 1 He becomes the substantial owner of the property from the moment of final ratification; and is not only entitled to the possession of the property, but it remains at his risk, notwith- standing the legal title may not be conveyed. 2 Until the pur- 3 Hunting v. Walter, 33 Md. 60, 62; the court distinguished Brown v. Gilmor, 8 Md. 322, 326. See Connaughton v. Bernard, 84 Md. — . 4 Preston v. Fryer, 38 Md. 221, 224; and see Ridgely v. McLaughlin, 3 H. & McH. 220, 222; see also ante, sec. 501. In Patterson v. Preston, 51 Md. 190, 195-196, a sale to certain purchasers was reported by the trustee, and was finally ratified. After the expiration of the term, the alleged purchasers filed their petition praying that the order of ratification be rescinded and that the reported sale be rejected, for the reason that they had not bought the property, and that the trustee had reported them as purchasers under a mistake; the sale was set aside. 1 Wagner v. Cohen, 6 G. 97, 102; on page 103 it is said that posses- sion before ratification of the sale was not unlawful when obtained with the consent of the trustee as agent of the court. See also Thruston v. Minke, 32 Md. 571, 575. In Dorsey v. Campbell, 1 Bl. 356, 365, it is said that an excep- tion is made as to the then growing or unfinished crop of a tenant. Compare Bruner v. Ramsburg, 43 Md. 560, 567. In Wheeler v. Addison, 54 Md. 41, 47, it was said that "where there is no express reservation of the rents falling due after the sale, the purchaser gets them. Taking the property with its rents, he takes it also subject to the taxes falling due and in arrears after his purchase, unless there be express stipulation to the contrary." 2 Lannay v. Wilson, 30 Md. 536, 550; the dry legal title and the right 605 Sales under decrees. 512-513 chase money is paid, however, the right of possession belongs to the vendor. 3 Where a loss, as by fire, occurs before the sale is ratified the loss falls on the owner and not upon the pur- chaser, for the reason that the contract of sale is not a complete sale until it has received the sanction of the court. 4 But where a loss occurs after confirmation, by which the contract is con- summated, the loss falls upon the vendee, even though no pur- chase money has been paid and the vendor remains in posses- sion. 5 If property appreciates after the sale, it is the pur- chaser's gain ; if it depreciates, it is his loss." §513. Acquisition of title by purchaser. — The legal title of the purchaser does not vest when the order of ratifica- tion is passed, but when the deed from the trustee is delivered. 1 The deed is designed to transfer the legal title, where the sale and ratification has previously given the equitable title. 2 Al- though the sale be ratified and the purchase money paid, if no of possession often become completely severed for a time — the legal title remaining in some of the parties to the cause, while the equitable estate and right of possession become vested in the purchaser. 3 Brewer v. Herbert, 30 Md. 301, 311. 4 Bowdoin v. Hammond, 79 Md. 173, 178; Brewer v. Herbert, 30 Md. 301, 3"- In Wagner v. Cohen, 6 G. 97, 102, the rule is stated with the qualification, "if the purchaser has not assumed the responsibility of protecting the property by taking possession of it." If loss occurs without default on the part of the trustee, the estate must bear it; Cockey v. Leister, 12 Md. 124, 129. 5 Brewer v. Herbert, 30 Md. 301, 311; compare Lannay v. Wilson, 30 Md. 536, 550. "Tyson v. Mickle, 2 G. 376, 384; Farmers' Bank v. Clarke, 28 Md. 145, 156. Compare Mahoney v. Mackubin, 52 Md. 357, 366. iDalrymple v. Taneyhill, 4 Md. Ch. 171, 176. Compare Green v. Drummond, 31 Md. 71, 82. 2 Neel v. Hughes, 10 G. & J. 7, 11; the deed cannot convey more land than the decree or order has authorized to be conveyed; page 10. In Lannay v. Wilson, 30 Md. 536, 551, it was held that after a lapse of time from the sale, the purchaser having paid the purchase- money, it would be presumed that the trustee had made a deed, as it was his duty to do so. In Rieman v. Wagner, 74 Md. 478, 480, it was held that the re- citals, in a trustee's deed, of the final ratification of a sale, were, with other facts, sufficient to overcome a defect in the title because of the loss of the papers in a chancery case in which the property was sold. §513 Sales under decrees. 606 deed be executed, the effect would only be to invest the pur- chaser with a mere equitable title. 3 The deed does not operate merely from the time of its execution, but relates back and vests the property in the grantee from the date of the sale. 4 The act of a trustee in executing a deed of the property before the sale is ratified or otherwise in contravention of the terms of the decree, is a nullity. 5 By the decree the trustee is restrained from giving a deed to the purchaser until the whole purchase money is paid; and, therefore, without a special order to the contrary, the trustee must act accordingly. 6 But when the purchaser pays the whole of the amount he is entitled to a con- veyance of the rights of the parties to the suit. 7 The assignee of the purchaser may be substituted in the place of the pur- chaser, with the consent of the parties, by the order -of the court. 8 The petition for substitution may be filed by the as- signee with the assent of the original purchaser; 9 the substitu- tion may be before 1 . or after the final ratification. 11 3 Sanders v. McDonald, 63 Md. 503, 508, citing Massey v. Massey, 4 H. & J. 141, 143, 148. The decree does not operate as a conveyance of the legal title; Lannay v. Wilson, 30 Md. 536, 550; Sanders v. McDonald, 63 Md. 503, 508. 4 Dalrymple v. Taneyhill, 4 Md. Ch. 171, 176; citing Hunter v. Hat- ton, 4 G. 115. 6 Johnson v. Hines, 61 Md. 122, 125, 130; Neel v. Hughes, 10 G. & J. 7, 10-11; in the former case it was held that in such a case the court may act upon petition, an original bill not being necessary"; and also that the ratification of an auditor's account following the sale was not a waiver of an act which was a nullity. 6 Hoye v. Penn, 1 Bl. 28, 39; Johnson v. Hines, 61 Md. 122, 130. See the forms in Carey's Forms. 7 Coombs v. Jordan, 3 Bl. 284, 330. 8 As in Simmons v. Tongue, 3 Bl. 341, 345-346. Compare Massey v. Massey, 4 H. & J. 141, 142, 148, in which a deed was made to the heirs of the purchaser. 9 As in Farmers' Bank v. Clarke, 28 Md. 145, 147-148; and see the argument on pages 150, 151-132. 10 As in Simmons v. Tongue, 3 Bl. 341, 345-346. "Hanson v. Chapman, 3 Bl. 198, 199, note case; after the final ratifi- cation of the sales in this case, it was ordered that the trustee convey to the assignees of the purchasers. The chancellor said that "in case of a conveyance under the foregoing order, to a fair assignee, there is no doubt that the assignee's title will be as good as if a conveyance had been made by the trustee to the purchaser, and a conveyance after- wards made by the purchaser to the assignee." In Farmers' Bank v. w 607 Sales under decrees. §514 §514. Payments by the purchaser.— It is a reasonable precaution for the trustee to require a deposit from the pur- chaser, at the time of the purchase, in order to insure a com- pliance with the terms of the sale, or to cover the costs and expenses of the sale; 1 if the purchaser be insolvent this is the only hold the court may have on him. 2 In cases where there are doubts of the good faith or solvency of the purchaser, the trustee should require security for the compliance with the terms of the sale, and this before the sale is ratified; 3 indeed this course should be pursued in all cases. 4 As a general rule in sales under decrees, the purchaser pays interest according to the terms of the decree, from the day of sale, whether he gets possession or not. 5 But where a sale is made on credit, and the defendant refuses to give the purchaser possession, the latter cannot be required to pay interest for the benefit of the defendant for the time he is deprived of the possession; and where the sale was for cash and the money was paid, and the defendant retained possession of the property, the purchaser was indemnified for this loss, out of the proceeds of sale in court belonging to the defendant. 6 A purchaser under a de- cree is not bound to see to the application of the purchase money, as he has no concern with the disposition which the court may make of it, nor can his rights be affected by any mis- application of it. 7 Where the property has been purchased by Clarke, 28 Md. 145, 147, 148, the substitution was after the final ratifica- tion of the sale; see the remarks here. Compare Marburg v. Cole, 49 Md. 402, 413. *Md. Society v. Smith, 41 Md. 516, 521; see the facts in this case. 2 Andrews v. Scotton, 2 Bl. 629, 648; if the purchaser fails to comply with his contract, the sale may be .annulled and the deposit forfeited; and see page 651. 3 Mealey v. Page, 41 Md. 172, 185. 4 McCullough v. Pierce, 55 Md. 540, 546. B Brown v. Wallace, 2 Bl. 585, 594; Wagner v. Cohen, 6 G. 97, 103; in the former case it is said that his getting possession is in no case allowed to be a condition precedent to the payment of either principal or interest of the purchase money. He is presumed to regulate his bidding with a view to the known powers and rules of the court as to delivering possession. "Barnum v. Raborg, 2 Md. Ch. 516, 532-533- 'Coombs v. Jordan, 3 Bl. 284, 329-330; Speed v. Smith, 4 Md. Ch. 299, 309. §514 Sales under decrees. 608 a person entitled to share in the proceeds of sale, he has been allowed to have deducted from the purchase money due by him, his share of the proceeds of sale. 8 So also at a trustee's sale to foreclose a mortgage, when the mortgagee is purchaser, the proceeds may be at once applied in satisfaction of the mort- gage debt by discount. 9 Formerly it was the constant practice when sales were made on credit, to take the bonds of the pur- chaser secured by endorsements for the deferred payments. But the liability of the purchaser and the nature of his obliga- tion were not thereby varied from a purchase for cash. 10 8 As in Hoye v. Penn, i Bl. 28, 38; here the trustee -was directed to suspend collecting the purchase money from the purchaser until fur- ther order; see also the proceedings on pages 39-40. Compare Hop- per v. Williams, 75 Md. 191, 193. 9 Murdock's case, 2 Bl. 461, 467-468; compare Wicks v. Westcott, 59 Md. 270, 282; Thomas v. Mason, 8 G. 1, 10; Du Puy v. Terminal Co., 82 Md. 408, 457, per Boyd, J.; Pumphrey v. Light St. Co., 60 Md., un- reported. In Lannay v. Wilson, 30 Md. 536, 549, the claim of the purchaser was preferred, and was much greater than the amount of the proceeds of sale. The court said it would have been a very useless, to say noth- ing of it as a senseless, ceremony, to have required the purchaser to pay over the money that the court had adjudged to. belong to him, in order that the trustee might go through the form of paying it back. 10 Andrews v. Scotton, 2 Bl. 629, 654. The parties to the case might have the bonds or notes, taken from the purchaser, assigned to them in satisfaction of their claims; Andrews v. Scotton, 2 Bl. 629, 656. Such an assignment extinguished the vendor's lien; Hayden v. Stewart, 4 Md. Ch. 280, 282, and cases cited. The code, art. 16, sec. 196, provides that "in case a sale shall be made on credit, the court may, upon application of the mortgagee or creditor, direct any bond taken in consequence of such sale to be as- signed to such mortgagee or creditor, and the assignee may sue on such bond in his own name." When a sale is made on credit, the purchaser may anticipate the payments, with the consent of the trustee; Gott v. State, 44 Md. 319, 340; and, upon payment, is entitled to have a conveyance of the prop- erty; Morrill v. Gelston, 34 Md. 413, 420. Compare Williams' case, 3 Bl. 186, 211-212. A purchaser who has paid the purchase money and has received a deed cannot thereafter be regarded as in court; as far as he is con- cerned the proceedings have terminated; Boteler v. Beall, 7 G. & J. 389, 398; compare Meluy v. Cooper, 2 Bl. 199, 200, note case. ' In Hopper v. Williams, 75 Md. 191, 193-194, the two trustees were 6°9 Sales under decrees. §515 §515. Duty of trustee in respect to proceeds. — Trustees 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. 1 A trustee 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, 2 and dis- placed. Trustees are, by the decree, ordered to bring into court the money and securities in their hands; 3 the power to pass such an order is incontestable.* It is furthermore pro- vided by statute that the court may order the trustee to bring into court any money, notes or bonds he may receive for the purchase money on any sale he may make, to be disposed of as the court may direct. 5 No trustee can be allowed to dispose unable to agree as to the security to be given by the purchaser. The matter was submitted to the court upon the respective reports of the trustees and the answer of the purchaser. The court could have de- termined what security should be given, and such determination would have been binding upon the trustees. It was, however, held a wise exercise of discretion to require security to be given to the satisfaction of the trustee who thought that security ought to be given. J In Cole v. Boarman, 51 Md. 229, 232, it was said that the parties in interest had a right to know the precise amount received by the trus- tees and the manner of its disbursement. See also this case and State v. Belt, 7 G. & J. 444, 447, in reference to sums paid the trustee before sale, and as to the liability of the bondsmen for such sums. Compare Taylor v. State, 73 Md. 208, 222-223; Farmers' Bank v. Mackall, 3 G. 447, 458; Ward v. Hollins, 14 Md. 158, 166. 2 Mackubin v. Brown, 1 Bl. 410, 416-417. In Maddox v. Dent, 4 Md. Ch. 543, 548-549, it was said that after a long lapse of time from the sale, the trustee must not only be pre- sumed to have received the purchase money, but is responsible for it whether he did or not; affirmed in Dent v. Maddox, 4 Md. 522, 528. Where property is sold under a decree of a court of equity, the proceeds of sale are considered in the custody of the court; Brooks v. Brooke, 12 G. & J. 306, 317. 3 In Coombs v. Jordan, 3 Bl. 284, 287, 295, the administrator of a de- ceased trustee was ordered to bring into court the bonds and purchase money received by the trustee; and see Maddox v. Dent, 4 Md. Ch. 543, 546, 548. See the forms in Carey's Forms, Nos. 649 and 743. 4 Sewall v. Costigan, 1 Md. Ch. 208, 210. 5 Code, art. 16, sec. 202. 39 §515-516 Sales under decrees. 610 of the proceeds without the express sanction of the court; 6 if he pays away the proceeds of sale before ratification of the auditor's account he does so at his own risk. 7 By statute it has been made the duty of a trustee, or other ministerial of- ficer, selling real or personal property, to pay all sums due and in arrears for taxes upon the property. 8 §516. Title of purchaser on reversal of decree.— A purchaser under a judgment at law, 1 or under a decree in a court of equity, has the right to presume that the court has taken all the necessary steps to investigate the rights of the 6 Tilly v. Tilly, 2 Bl. 436, 445; in which it was said that a due regard for the interests of suitors requires that this rule should be inflexibly enforced; Murdock's case, 2 Bl. 461, 468; Sewall v. Costigan, 1 Md. Ch. 208, 211; Green v. Putney, 1 Md. Ch. 262, 265; see also Mackubin v. Brown, 1 Bl. 410, 418; Iglehart v. Armiger, 1 Bl. 519, 527-528. See the distinction, stated in Green v. Putney, 1 Md. Ch. 262, 265, between the powers of a trustee under a decree and those of a con- ventional trustee, with regard to the payment of moneys. 7 Dent v. Maddox, 4 Md. 522, 527; Bradford v. Jones, 1 Md. 351, 374. 8 Act of 1892, ch. 518, amending code, art. 81, sec. 64: "Whenever a sale of either real or personal property upon which taxes are due and payable shall be made by any ministerial officer, under judicial process or otherwise, all sums due and in arrears for taxes upon such property from the party whose property is sold shall be first paid and satisfied; and the officer or person selling shall pay the same to the collector of the county or city, if any, or to the treasurer if there be no collector." The act of 1896, ch. 407, provides for the payment of State taxes due and in arrears from a corporation whose real or personal property is sold by any trustee, receiver or other ministerial officer. The statutes have been considered in Fulton v. Nicholson, 7 Md. 104, 107; Tuck v. Calvert, 33 Md. 209, 224-225; Wheeler v. Addison, 54 Md. 41, 46-47; Gould v. Mayor, &c, 58 Md. 46, 52; Hebb v. Moore, 66 Md. 167, 170-171. In Baltimore city, the code of public local laws, art: 4, sees. 74-81, provides for the payment of duties, calculated upon the sums for which the property or goods sold at public auction shall be struck off, which shall in all cases be paid by the person making the sale. Sec. 79 provides that the duty shall be a lien on lands, &c, when sold at public auction; sec. 80, provides that every purchaser of lands, &c, shall be bound to pay the auction duty and be entitled to claim the payment as a credit on his purchase. See State v. Second Nat'l Bank, 84 Md. — . !Barney v. Patterson, 6 H. & J. 182, 204;' Manahan v. Sammon, 3 Md. 463, 471; Magruder v. Peter, 11 G. & J. 217, 242. 611 Sales under decrees.' §516 parties, and that on such investigation the judgment or decree under which he purchased was properly passed. Hence when a sale has been made under a decree, subsisting and binding the parties thereto at the time of sale, a purchaser in good faith under the decree will not be affected by the subsequent reversal of the decree for errors or irregularities, whether in respect to evidence or otherwise; provided only that the court had jurisdiction to pass the decree. 2 Thus where a decree for a sale was passed and a sale was made and ratified, and then an ap- peal from the decree of sale was taken by the defendant, and the decree was reversed, it was held that the reversal of the decree could not affect the rights ot the purchaser under the decree. 3 The execution of a decree may, however, be sus- pended by filing a bond. 4 If, however, the decree under which the sale takes place is void for want of jurisdiction in the court to pass it, (and not merely voidable for errors on a direct ap- peal) the purchaser acquires no title to the property. 5 2 Newbold v. Schlens, 66 Md. 585, 591-593; Benson v. Yellott, 76 Md. 159, 168; Lenderking v. Rosenthal, 63 Md. 28, 38;' Chase v. Mc- Donald, 7 H. & J. 160, 199; Wilson v. Miller, 30 Md. 82, 90; Dorsey v. Thompson, 37 Md. 25, 45; Harris v. Hooper, 50 Md. 537, 549; Ward v. Hollins, 14 Md. 158, 166-167. In Johnson v. Robertson, 34 Md. 165, 173, it is said that the re- versal of the decree could not have a retrospective operation to render null and void things properly done under it while in force. The rights of the purchaser would be protected as having been acquired under competent judicial authority, notwithstanding the subsequent reversal of the decree. Compare Sloan v. Safe Deposit Co., 73 Md. 239, 244; Krone v. Linville, 31 Md. 138, 146; Elliott v. Knott, 14 Md. 121, 134. 3 Wampler v. Wolfinger, 13 Md. 337, 347-348; in this case the trustee was required to bring the proceeds of sale into court to be applied ac- cording to the equitable rights of the parties at the final hearing of the cause. Similar cases are: Lenderking v. Rosenthal, 63 Md. 28, 38; Brendel v. Zion Church, 71 Md. 83, 85-86. In Lenderking v. Rosenthal, 63 Md. 28, 38, and Garritee v. Pop- plein, 73 Md. 322, 324, it is said that the rule applies unless it can be shown that there was unfairness or collusion in making the sale by the trustees; similarly in Gregory v. Lenning, 54 Md. 51, 58. 4 Code, art. 5, sec. 27, amended by act of 1890, ch. 32; Lenderking v. Rosenthal, 63 Md. 28, 38; Brendel v. Zion Church, 71 Md. 83, 85; Gar- ritee v. Popplein, 73 Md. 322, 323-324- 5 Johnson v. Robertson, 31 Md. 476, 491; Johnson v. Robertson, 34 §517 Sales under decrees. 612 §517. Collateral attack upon purchaser's title.— When the proceedings under which a purchaser buys property are collaterally brought in question and it appears that there is a total lack of jurisdiction, either of parties or of subject- matter, the proceedings are void, and can confer no right, and may be rejected. 1 But when the proceedings are within the jurisdiction of the court, the well settled rule is that they are not impeachable for mere errors or irregularities that may be ap- parent. The erroneous or improvident exercise of jurisdic- tion, or the exercise of it in a manner not warranted by the evidence before it, whether that be in respect to the construc- tion of written instruments, or deductions drawn from unwritten proof, is not to be corrected at the expense of a purchaser who has a right to rely upon the order of the court as an au- thority emanating from a competent jurisdiction. Any other principle would unsettle and render insecure the larger portion of the titles of the country. 2 This principle has been applied in a variety of cases. 3 Md. 165, 173; compare Gregory v. Lenning, 54 Md. 51, 55-56; Miles v. Knott, 12 G. & J. 442, 453, a case at law. Equity rule 52; code, art. 16, sec. 166; provides, in reference to rehearings, that "if the decree or order has been executed, parties who have acted on the faith of such decree or order shall not be prejudiced by such decree or order being reversed or varied"; see ante, sec. 286. 1 Long v. Long, 62 Md. 33, 62; Cockey v. Cole, 28 Md. 276, 286; Clark v. Bryan, 16 Md. 171, 177. 2 Long v. Long, 62 Md. 33, 62-63; errors and irregularities must be corrected by some direct proceeding, either in the same court to set them aside, or on appeal. 3 The discussion of this subject at length is beyond the scope of this volume. The rule has been applied in the ejectment suits, among others, of Schley v. Mayor, &c, 29 Md. 34, 46-47; Dorsey v. Garey, 30 Md. 489, 494-495; Davis v. Helbig, 27 Md. 452, 465-466; Sanders v. McDonald, 63 Md. 503, 512; Thompson v. Tolmie, 2 Pet. 157, 163, stated in Cockey v. Cole, 28 Md. 276, 285-286. Other cases are: Cockey v. Cole, 28 Md. 276, 284-285; Hunter v. Hatton, 4 G. 115, 122; Sloan v. Safe Deposit Co., 73 Md. 239, 244; Clark v. Bryan, 16 Md. 171, 176. In Rouskulp v. Kershner, 49 Md. 516, 522-523, it was held that a bona fide purchaser at a trustee's sale, when the sale is duly reported and finally ratified, and the purchaser has paid his money and has re- ceived a conveyance, cannot be called into collateral proceedings either to account for the purchase money or to have the proceedings re- viewed, when the court had jurisdiction. Compare Harris v. Hooper, 50 Md. 537, 548-549. 613 Sales under decrees. §518 §518. Rights of incumbrancers, not parties, to pro- ceeds of sale. — Where mortgaged premises are decreed to be sold, prior incumbrancers not parties to the suit, nor before the court, are not bound to seek payment of their claims out of the proceeds of sale in the hands of the trustee; and if not paid off, they may prosecute their liens upon the lands sold, after the conveyance. to the purchaser, although the latter has paid the purchase money and the land was sold to him clear of in- cumbrances. 1 Not being parties to the suit, such incumbran- cers are not affected or bound by the proceedings. 2 This prin- ciple is applicable where the lienor, who is not a party, holds a lien prior in effect to the lien under which the property is sold. But where a judgment was subsequent to a mortgage which was foreclosed, and the judgment creditor did not assert any claim to the proceeds of sale while they were in court, he was not allowed to proceed against the land afterwards. 3 If the trustee professed to sell an unincumbered title and the pur- chaser relied on this representation, then 'upon the report of sale and coming in of the proceeds, the court may allow lienors, not parties to the suit, if they choose to do so, and with the con- sent of all other parties in interest, to come in and take satisfac- tion of their liens out of the proceeds of sale; or may set aside a portion of the proceeds for any liens not then payable. 4 But under some circumstances it may be inequitable to allow lienors not parties to assert claim to the proceeds of sale, as when they retain their lien against the property. 5 JBrooks v. Brooke, 12 G. & J. 306, 318-319; Ellicott v. Ellicott, 6 G. & J- 35. 48, as stated in Walter v. Riehl, 38 Md. 211, 218; Duvall v. Speed, 1 Md. Ch. 229, 236. Compare Farmers' Bank v. Thomas, 37 Md. 246, 254-256, 258; Brick Co. v. Robinson, 55 Md. 410, 415-416; Sansbury v. Belt, 53 Md. 324, 332; Wells v. Canton Co., 3 Md. 234, 243. 2 Cockey v. Milne, 16 Md. 200, 207; see ante, sees. 49-54. 3 Brawner v. Watkins, 28 Md. 217, 225-226; stated in Sumwalt v. Tucker, 34 Md. 89, 91-92; compare Leonard v. Groome, 47 Md. 499, 505. ^Brumbaugh v. State, 54 Md. 641, 647; this is substantially what was allowed in Holthaus v. Nicholas, 41 Md. 241. See also the facts in Dance v. Dance, 56 Md. 433, 438. =As in Sansbury v. Williams, 53 Md. 324, 331-332- §519 Sales under decrees. 614 §519. Miscellaneous.— An order directing a re-sale has the effect of setting aside a previous sale. 1 When a sale is set aside, any purchase money paid on account by the purchaser may be ordered to be refunded. 2 A purchaser who had been let into possession, would be responsible in equity for its use and occupation. 3 After a sale has been set aside, the court may thereafter revive the contracts of sale with the purchasers if they so desire. 4 The validity or invalidity of a sale depends upon the state of circumstances existing at the time it was made, and not upon subsequent contingencies. 5 When a sale is reported by a trustee, no order affecting the rights of the purchaser can be passed without notice to him, and an oppor- tunity of showing cause against the order. 6 The mutation of real estate into personal estate, in case of a sale, is complete when the 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 if the sale is on credit. The con- currence of all these circumstances is necessary to effect the change. 7 iSloan v. Safe Deposit Co., 73 Md. 239, 247-248; see the facts here. 2 Handy v. Waxter, 75 Md. 517, 524; Glenn v. Clapp, 11 G. & J. 1, 10; Holthaus v. Nicholas, 41 Md. 241, 266; compare Heuisler v. Nickum, 38 Md. 270, 278; Eichelberger v. Hawthorne, 33 Md. 588, 594. 3 Wagner v. Cohen, 6 G. 97, 104. 4 In Handy v. Waxter, 75 Md. 517, 524, a sale was set aside because of the failure to make proper parties to the decree of sale. It was said that on further proceedings, when all proper parties are before the court, the court may revive the contracts of purchase as reported by the trustee, if the purchasers desire that to be done; see also Glenn v. Clapp, 11 G. & J. 1, 8-9; Harrison v. Harrison, 1 Md. Ch. 331, 332; Holthaus v. Nicholas, 41 Md. 241, 265-266. Tyson v. Mickle, 2 G. 376, 384; Gibbs v. Cunningham, 1 Md. Ch. 44, 49, affirmed in Cunningham v. Schley, 6 G. 207, 231 ; Kelso v. Jes- sop, 59 Md. 114, 121; Farmers' Bank v. Clarke, 28 Md. 145, 156. 6 Schaefer v. O'Brien, 49 Md. 253, 255-256. In Patterson v. Preston, 51 Md. 190, 198, it was said that a sale alleged to have been made to three persons must be ratified. or rejected as an entirety. 7 Dalrymple v. Taneyhill, 4 Md. Ch. 171, 174; and cases cited; Early v. Dorsett, 45 Md. 462, 465-466; Oswald v. Hoover, 43 Md. 360, 369; and other cases. 615 Sales under decrees. §520-521 Proceedings against defaulting purchasers. §520. Proceedings independently of statute.— After the sale has been ratified, if the purchaser fails to comply with the terms of sale, the payment of the purchase money may be enforced in three ways; first, by an order and process of at- tachment of contempt against the purchaser to compel him to complete his purchase ; second, by a re-sale of the property at the risk of the purchaser, based upon the court's equitable lien; or, third, by an action at law against the purchaser, and his sureties, upon the bonds or notes given for the payment of the purchase money. 1 §521. Attachment against purchaser. — Indepen- dently of statute, it was held that upon a purchaser's failing to comply with the terms of sale, the court would, on applica- tion, after the ratification of the sale, compel him to complete his purchase by process of attachment for contempt. 1 Where a sale is made under a decree, and no bond or security is given for the payment of the purchase money, the court may compel the purchaser to complete his purchase by an order on him in a summary way, to pay or bring the money into court. This practice arose from necessity, because of the peculiar char- acter of the transaction. 2 The court having a clear right to enforce its decrees, and an order of ratification in such case 1 Andrews v. Scotton, 2 Bl. 629, 657, 664; in this case, page 670, the chancellor ordered several proceedings to be taken. In Coombs v. Jordan, 3 Bl. 284, 295-296, and Brundige v. Mor- rison, 56 Md. 407, 410, proceedings were had against the personal rep- resentatives of the purchaser. [§5 2 i-] 1 Andrews v. Scotton, 2 Bl. 629, 651; it is said that "if a pur- chaser cannot be coerced by process of attachment, this court has no hold of him; nor can it ever take hold of him, in any manner, so as to, prevent him from making a mere sport of its decrees." 2 Richardson v. Jones, 3 G. & J. 163, 185-186; Warfield v. Dorsey, 39 Md. 299, 304; stated in Boyle v. Schindel) 52 Md. 1, 6; the reason being that the trustee cannot sue at law, and, moreover, no action at law lies to enforce a decree in chancery. See also Anderson v. Foulke, 2 H. & G. 346, 372-373; Andrews v. Scotton, 2 Bl. 629, 652-654; Coombs v. Jordan, 3 Bl. 284, 295. The court would act at the instance of any party interested; Andrews v. Scotton, 2 Bl. 629, 648; Coombs v. Jordan, 3 Bl. 284, 296. §521-522 Sales under decrees. 616 being considered as amounting to a decree for the payment of the purchase money, a purchaser who does not comply with the decree is in contempt, and may be dealt with by an order to bring the money into court as preparatory to an attachment. 3 Under an order to pay the money into court, or show cause to the contrary, a full hearing of the merits of the case may be had, and, if justice requires it, the purchaser may be discharged from his purchase. 4 Where a bond is given to the trustee for the purchase money, the terms of sale, to that extent, are complied with, and a contract is entered into with the trustee on which, after ratification, he has a remedy at law, and the payment cannot be enforced in a summary way by an order to bring the money into court. 5 When a sale was made on credit, and bonds were taken for the purchase money, it was the practice to sue upon the bonds after the day of payment had elapsed; but this was not an abandonment of the right to proceed against the purchaser by attachment. 6 §522. Resale at risk of purchaser. — The power to sell the property at the risk of the delinquent purchaser was fre- quently exercised. The power arose from the equitable lien which the court as vendor, held upon the property which the purchaser had contracted to buy. 1 The lien is an incident of 3 Richardson v. Jones, 3 G. & J. 163, 186; on page 187 it is said that there must be a decree for the payment of the purchase money, or an order of ratification amounting to a decree, as a foundation for an or- der to bring it into court. Compare Anderson v. Foulke, 2 H. & G. 346, 3SI-3S2, 371- 4 Anderson v. Foulke, 2 H. & G. 346, 373. 6 Richardson v. Jones, 3 G. & J. 163, 187; Ridgely v. Iglehart, 6 G. & J- 49, 53; Clagett v. Worthington, 3 G. 83, 95; compare Stephens v. Magruder, 31 Md. 168, 173. 6 Andrews v. Scotton, 2 Bl. 629, 655-656. Andrews v. Scotton, 2 Bl. 629, 656-657; Schaefer v. O'Brien, 49 Md. 253, 256; Coombs v. Jordan, 3 Bl. 284, 296. Instances are also in Simmons v. Tongue, 3 Bl. 341, 348; Mul- likin v. Mullikin, 1 Bl. 538, 542. As to the equitable lien held by the court as vendor, see Igle- hart v. Armiger, 1 Bl. 519, 522-528; Andrews v. Scotton, 2 Bl. 629, 656, 663-664, 669; Ridgely v. Iglehart, 3 Bl. 540, 544; Coombs v. Jordan, 3 Bl. 284, 296; Stephens v. Magruder, 31 Md. 168, 173; Hayden v. Stew- art, 4 Md. Ch. 280, 282; Dixon v. Dixon, 1 Md. Ch. 220, 221. In Randall v. Swann, 10 G. & J. 313, 316, it was held, under the €17 Sales under decrees. §522-523 the sale, and does not come into existence to form the ground of proceeding, until the contract of purchase is consummated by the ratification of the sale. 2 §523. The code provisions ; attachment.— The whole matter of proceedings against defaulting purchasers at trus- tee's sale is now provided for by statute 1 intended to clothe the court with adequate authority, if there was any doubt of its existence before, to compel compliance with the terms pre- scribed by its decree. 2 In reference to attachment, the code provides that the court shall have full power and authority, on application by bill or petition of the trustee appointed by the court, to compel the purchaser to comply with the terms of sale, by process of attachment or other execution suited to the case. circumstances of the case, that the re-sale should not be at the risk of the purchaser. Compare Singstack v. Harding, 4 H. & J. 186, 192. In Deaver v. Reynolds, 1 Bl. 50, 51, one of the heirs of property purchased it at a trustee's sale, and afterwards reported to the court that he was unable to comply with the terms of sale. It did not ap- pear that he had any design to baffle the proceedings, and the court therefore did not order a re-sale at his risk, but directed the expenses of the sale to be paid out of his share of the proceeds of sale, and ordered a re-sale. 2 Schaefer v. O'Brien, 49 Md. 253, 256. 1 Code, art. 16, sec. 194; this was the act of 1841, ch. 216. In the code of i860, art. 16, sec. 131, the act was almost literally inserted, with the addition of the last clause, which is "and enforce such order by execu- tion." The code of 1888 provision is the same as that of the code of i860. The 'statute in full is as follows: "The court shall have full power and authority, on application by bill or petition of the trustee appointed by said court to sell real estate, to compel the purchaser thereof to comply with all or any of the terms of such sale, by process of attachment or other execution suited to the case; or the said court, upon such application, may direct the property purchased to be re-sold, at the risk of such purchaser, upon such terms as the court may direct; and in such case, if the proceeds of the re-sale, after payment of the ex- penses thereof and of all costs of proceeding, shall not be equal to the payment of the purchase money originally bid therefor, the court may order and direct the difference to be paid by the said purchaser, and enforce such order by execution." 2 Warfield v. Dorsey, 39 Md. 299, 303. In Farmers' Bank v. Martin, 7 Md. 342, 345, it is said that when §524 Sales under decrees. 618 §524. Statutory resale at risk of former purchaser.— The statutory provision in reference to a re-sale is that: the court, upon application by bill 1 or petition 2 of the trustee ap- pointed by the court to sell real 3 estate, may direct the prop- erty purchased to be re-sold, at the risk of the purchaser, upon such terms as the court may direct; and in sucH case, if the proceeds of the re-sale, after payment of the expenses there- of, and of all costs of proceeding, shall not be equal to the payment of the purchase money originally bid therefor, the court may order and. direct the difference to be paid by the purchaser, 4 and enforce such order by execution. The statute applies exclusively to sales made by trustees acting under the orders of a court of equity;, it has no application to transactions between individuals. 5 It apparently applies to oases where the purchaser dies, whereupon proceedings may be had against his administrator. 6 If the sale is on credit and the purchaser fails to pay the balance of the purchase money at the time or times required by the decree, the court may upon petition, order a re-sale at the risk of the purchaser, in the same way that a re-sale is ordered when the sale is for cash; an original bill is not necessary. 7 a party fails to comply with his contract of purchase he may be co- erced in three different modes; first, by attachment; second, by suits at law on his notes or bonds; and, third, by a re-sale; citing the statute. Compare ante, sec. 520. Compare Mealey v. Page, 41 Md. 172, 183; Stephens v. Magruder, 31 Md. 168, 173. 2 The petition is to be served on the purchaser, and he is allowed time to make his defence; Stephens v. Magruder, 31 Md. 168, 174; com- pare Brundige v. Morrison, 56 Md. 407, 410-413. 3 The word "real" is italicized in Fowler v. Jacob, 62 Md. 326, 329. *In Fowler v. Jacob, 62 Md. 326, 329, it is expressed by saying that the court has authority to pass a decree against the first purchaser, in personam, for the difference. 5 Fowler v. Jacob, 62 Md. 326, 329. 6 Brundige v. Morrison, 56 Md. 407, 410; this case was not under the statute, being a sale of personal property, but followed the uniform equity practice in cases of re-sales; pages 413-414. Compare Coombs v. Jordan, 3 Bl. 284, 295-296. In Andrews v. Scotton, 2 Bl. 629, 670, the trustee was directed to proceed against the insolvent estate of the purchaser. 'Stephens v. Magruder, 31 Md. 168, 173; in this case it is also said, 619 Sales under decrees. §525 §525. Preliminary proceedings. — An order for a re- sale cannot be passed until the first sale is ratified. The party must be accepted as a purchaser and the sale ratified before he can be proceeded against for the enforcement of the contract of purchase. The proceeding for re-sale is based upon the equi- table lien held by the court, and such lien does not come into existence until the contract of purchase is consummated. 1 No order for a re-sale at the risk of a former purchaser can be passed without notice to the purchaser and an opportunity to him to show cause against the order. 2 If a sale is reported and the purchaser refuses to comply with the terms of sale, upon representation of the trustee or the party interested, the court may order that cause be shown why the terms of sale are not complied with ; and upon the purchaser failing to show cause, the court may either ratify the sale or set it aside, as may be advisable. 3 If the sale be set aside the purchaser may be on page 174, that the fact that the purchaser had filed a bill in the na- ture of a bill quia timet could not deprive the court of the jurisdiction conferred by the code. In the same case of Stephens v. Magruder, 31 Md. 168, 172-173, it is said that "it is an error to suppose that upon the execution and ap- proval of his bond, the purchaser has fully complied with all of the terms of sale, and that the decree no longer operates to enforce the payment of the credit instalments;" and that whatever doubts may have been entertained because of the decision in Richardson v. Jones, 3 G. & J. 163, were entirely removed by the explicit provisions of the code. iSchaefer v. O'Brien, 49 Md. 253, 256. In Sloan v. Safe Deposit Co., 73 Md. 239, 248, it is said that notwithstanding the enrolment of the decree and the lapse of sundry terms, the court had the unquestioned control over the sale, until the purchase money was all paid, and for non-payment of the purchase money the court could vacate the sale and sell again. 2 Schaefer v. O'Brien 49 Md. 253, 256; the proceedings in this case were "radically defective." In Brundige v. Morrison, 56 Md. 407, 412, notice given to the at- torney of record of the administratrix of the purchaser was held proper; nor was any notice given of the ratification of the private re-sale, page 411; but under the circumstances it was held that the administratrix had no ground of complaint. In Sloan v. Safe Deposit Co., 73 Md. 239, 246-247, the first pur- chaser agreed that the sale should be set aside; see the proceedings here. 3 Schaefer v. O'Brien, 49 Md. 253, 256. §525-526 Sales under decrees. 620 required to pay all the costs and expenses attending the sale thus set aside because of his default, as terms of releasing him from the purchase.* But if the sale be ratified and the party still fails to comply, the court may then proceed by order nisi and final order to direct a re-sale at the risk of the purchaser. 5 §526. Disposition of proceeds of sale. — When a re- sale is made the proceeds are to be disposed of as follows : the costs, fees and expenses of the re-sale, including the proper commissions, 1 are to be deducted; and also the amount of the original purchase money due, with interest from the date of the first sale to the date of the receipt of the purchase money of the second sale. 2 The proceedings for a re-sale, after final ratification, treat the first contract as binding on the original purchaser. The property is re-sold as the property of the de- faulting purchaser, and at his risk. He is therefore entitled to any excess in the proceeds of sale at the re-sale, just as he would be responsible for any deficiency. 3 The purchaser is 4 Compare Deaver v. Reynolds, i Bl. so, 51; ante, sec. 522, note. 5 Schaefer v. O'Brien, 49 Md. 253, 256. In Gordon v. Matthews, 30 Md. 235, 244, a case in insolvency, an order was passed directing sales to be "set aside" and "annulled," and that the properties be re-sold at the risk of the purchaser. It was held that under the circumstances it was not the intention of the judge to absolutely vacate the sales, so as to release the purchaser from liability notwithstanding the inadvertent use of the terms "set aside" and "annul." 1 As to the commissions, see post, sec. 561. 2 Mealey v. Page, 41 Md. 172, 185-186; in this case the re-sale was by an executor under the act of 1870, ch. 82, (code, art. 93, sec. 284,) which, as stated on page 184, has followed the chancery practice. See also Stephens v. Magruder, 31 Md. 168, 174; Gordon v. Matthews, 30 Md. 235, 245-246. 3 Mealey v. Page, 41 Md. 172, 183-184; see also Early v. Dorsett, 45 Md. 462, 466; Brundige v. Morrison, 56 Md. 407, 414. If, after confirmation, the sale is set aside, the purchaser is not regarded as the owner of the estate, as the order destroys any inchoate title which the purchaser may have acquired by the confirmation; Dal- rymple v. Taneyhill, 4 Md. Ch. 171, 175. In State v. Second Nat'l. Bank, 84 Md. — , the court of appeals held that under a judicial re-sale the property is put under the hammer, "not as a new, distinct, independent procedure, but as a means, and solely as a means, to realize the money which the original 621 Sales under decrees. §526-528 to be charged with the whole purchase money and costs of the re-sale, and credited with the payments he has made, and with the proceeds of the second sale. If the latter amounts are not sufficient to pay the sum for which the property was first sold, the purchaser is to be 'charged with the deficiency. The appli- cation of the cash paid as a credit on his purchase is in no sense a forfeiture inasmuch as he is entitled to any surplus which may remain.* §527. Decree in personam against married woman. — The letter of the statute embraces all purchasers at a trustee's 'sale made under the orders of a court of equity, and in- cludes married women. A married woman may therefore be held personally liable for any difference between the sales. With respect to her, the decree in personam means that any separate property of hers which she would have the right to pledge in order to pay or secure a debt, may be taken in execu- tion to pay what she owes on her purchase, or that such prop- erty is liable therefor. 1 The statute gives her the unqualified right to become a purchaser at a trustee's sale, and having that right, she stands in the same relation that any other purchaser does, and incurs the same liabilities. 2 This construction of the statute does not involve any conflict with the constitutional provision in respect to the right of trial by jury. 3 Enforcing delivery of possession. §528. Inherent equity jurisdiction. — When a pur- chaser at a sale under a decree has fully complied with the terms of the sale, and possession of the premises purchased is but defaulting purchaser failed to pay. The re-sale takes place under the original decree, supplemented by an order. It is made by the same trustees, in the same proceedings and with a view to pay off the same indebtedness for the payment of which the property was sold in the first instance, and the money realized by it is always applied pre- cisely as would have been applied the money bid at the original sale, had that money been paid by the first purchaser. The re-sale' is sim- ply an execution of the decree for a sale." 4 Brundige v. Morrison, 56 Md. 407, 414. 1 Fowler v. Jacob, 62 Md. 326, 329-332, 2 Galloway v. Shipley, 71 Md. 243, 246; compare Moore v. Taylor, 81 Md. 644, 646-647. 3 Capron v. Devries, 83 Md. 220, 224-225. §528-529 Sales under decrees. 622 withheld by a party to the suit, or by a person claiming under a party by title subsequent to the commencement of the suit, the purchaser may obtain an order under which possession will be delivered to him. 1 That the court has the power of enforcing its decree for sale by ordering the possession to be delivered to the purchaser in certain cases cannot be denied. 2 The writ of habere facias possessionem is not authorized by the powers of a court of chancery in this State. The writ is a judicial writ of the common law, and was used to restore a possession of which the applicant for the writ had been ousted; it is there- fore not technically appropriate for the use of a chancery court in compelling the delivery of land sold under its decrees or under execution on its decrees. 3 Independently of statute, the proper mode of proceeding in chancery was by injunction.* §529. Against whom proceedings may be had. ■ — The exercise of the power in relation to all such persons as are parties to the proceedings for a sale, and whose rights have been determined by the decree, is essential to the administration of justice. 1 So also persons coming into pos- session of the land pendente lite, claiming title to it under the parties to the bill, or some of them, are in the same position as those from whom they acquired their title. 2 The power of the court is restricted to these two classes of oases; that is, where the persons holding the possession are parties to the decree, and whose rights are thus determined by it, and. per- iApplegarth v. Russell, 25 Md. 317, 320, 328; Alex. Ch. Pr. 153; see also Morrill v. Gelston, 32 Md. 116, 120; Oliver v. Caton, 2 Md. Ch. 297, 300. 2 Tongue v. Morton, 6 H. & J. 21, 23-24; Frazer v. Palmer, 2 H. & G. 469, 473; Dorsey v. Campbell, 1 Bl. 356, 363. Compare Gowan v. Sumwalt, 1 G. & J. 511, 513; Lannay v. Wil- son, 30 Md. 536, 550. 3 Morrill v. Gelston, 32 Md. 116, 120-122; and see Nutwell v. Nut- well, 47 Md. 35, 52-53, per Bowie, J., dissenting. 4 Morrill v. Gelston, 32 Md. 116, 119-120, and cases cited; Dorsey v. Campbell, 1 Bl. 356, 363; see also Murdock's case, 2 Bl. 461, 464, 468- 469; Garretson v. Cole, 1 H. & J. 370, 387; Alex. Ch. Pr. 153; code, art. 16, sec. 168. tongue v. Morton, 6 H. & J. 21, 23. 2 Tongue v. Morton, 6 H. & J. 21, 23-24. Compare Inloes v. Harvey, 11 Md. 519, 524-525; Applegarth v. Russell, 25 Md. 317, 320, 328. 623 • Sales under decrees. §529-530 sons who came into possession pendente lite, claiming title under parties to the bill or some of them. 3 But this course cannot be taken against persons in possession who were not parties to the decree for sale, and whose interests are not af- fected by it; 4 such as persons who acquire title prior to the in- stitution of the proceedings in which the decree passed. 5 Es- pecially if such persons in possession claim adversely to the title bought by the purchaser. 6 In such cases the persons in possession cannot be removed until their title is shown to be defective in the regular course of judicial proceeding. Such an interest cannot be decided on in a summary manner by way of motion. 7 §530. The original statutory provision. — The act of 1825, ch. 103, sec. 1, first gave authority to the court of chancery to issue a writ in the nature of a writ of habere facias possessio- nem. The act related only to sales under process of execution; it did not apply to any other process. 1 The act was remedial in its character and was to be liberally construed, although confined to specified cases. 2 The evil intended to be remedied by the act was that debtors and those claiming under them, after a sale of their lands by the sheriff, held on to their posses- sion until ousted by the tedious process of ordinary judicial proceedings, thus depriving purchasers, for years, of the lands they had paid for. 3 The statute has been considered in a num- 3 OHver v. Caton, 2 Md. Ch. 297, 301. 4 Tongue v. Morton, 6 H. & J. 21, 24; Frazer v. Palmer 2 H. & G. 469, 473; Oliver v. Caton, 2 Md. Ch. 297, 301. 5 OHver v. Caton, 2 Md. Ch. 297, 301. 6 As in Tongue v. Morton, 6 H. & J. 21, 24; Frazer v. Palmer, 2 H. & G. 469, 473- 7 Tongue v. Morton, 6 H. & J. 21, 24; Frazer v. Palmer, 2 H. & G. 469, 473- iMorrill v. Gelston, 32 Md. 116, 121. The act provided for sale by virtue of any process of execution from the court of appeals, court of chancery, or any county court. In Dorsey v. Campbell, 1 Bl. 356, 364, the act was for the first time used in the court of chancery. 2 McMechen v. Marman, 8 G. & J. 57, 74. 3 McMechen v. Marman, 8 G. & J. 57, 74; quoted in Schaefer v. Ami- cable Co., S3 Md. 83, 87, and Nutwell v. Nutwell, 47 Md. 35, 50-51, per §530-532 Sales under decrees. ■ 624 ber of cases at law.* §531. Enlargement of the statutory provison. — From the act of 1825 to the act of 1864, ch. 283, the proceed- ings in equity to enforce possession, in cases other than sales under process of execution, were properly under the inherent chancery jurisdiction. By the last mentioned act, the cases in chancery in which a writ in the nature of a writ of habere facias possessionem could be used, were extended so as to include sales by any trustee under the decree of any court, or by any trustee under any voluntary deed of trust, or by any mort- gagee under a mortgage with power to sell. 1 By a subsequent act were included sales by any executor or executors, or any other person under any power in a will. 2 §532. Proceedings under the statute.— The proceed- ings under the act of 1864, ch. 283, where the sale has been made under a decree of a court of equity, may be taken in the Bowie, J., dissenting; in the former case it was held that the act ap- plied where the judgment debtor had an equitable estate in the land as well as where he held a legal estate. 4 In Clarke v. Belmear, I G. & J. 443, 449, it was held that the right of a party to obtain a writ under the act does not relate to the time the execution was issued, but to the time when the lands were sold. In Waters v. Duvall, 6 G. & J. 76, 79-80, it was held that the want of notice to the tenants in possession to show cause why the writ should not issue was fatal; compare Dorsey v. Campbell, 1 Bl. 356, 365. In Nelson v. Turner, 2 Md. Ch. 73, 77, it was said that a defend- ant at law, retaining possession of the land sold under a judgment might defend himself in a proceeding under the act effectually if the de- scription of the land in the sheriff's return was so far defective as to render it void for uncertainty; compare Applegarth v. Russell, 25 Md. 317, 328. In Cooke v. Brice, 20 Md. 397, 402, it was said that ordinarily in proceedings of this nature, the question of title is not involved or de- cided, the inquiry being limited to the fact of possession. But in this case the question of title had to be considered in order to determine in what character the possession was held; compare post, sec. 532, note 1. See also Penn v. Isherwood, 5 G. 206, 213; Turner v. Waters, 14 Md. 62, 64; Miller v. Wilson, 32 Md. 297, 298-301; 2 Poe, PI. & Pr. sees. 618-623. *Act of 1864, ch. 283. 2 Act of 1886, ch. 504. Compare also the act of 1878, ch. 141. 625 Sales under decrees. §532 case in which the decree was passed, a separate proceeding at law not being necessary. The proceeding is a substitute for the less summary proceedings previously resorted to by pur- chasers to obtain possession of land purchased under decrees. 1 The decision on the application is not definitive. It only binds to the extent of granting or refusing the writ. Parties are en- titled to more formal proceedings for the ultimate adjudication of their rights. 2 Right to immediate possession is all that is settled by the granting of the writ, and that right may be sub- ject-to overthrow by an ejectment suit. 3 The policy which in- duced the adoption of the summary proceedings at law has engrafted the same remedies upon proceedings in equity. They are judicial in their nature, collateral to the decree under which the purchaser claims, and intended to give it speedy ef- fect. The antecedent proceedings., on which the petition for the writ is founded, is matter of record, constituting prima facie evidence of the right of the petitioner to the relief prayed. 4. Where parties in possession, although concluded as to title descended to them from their ancestor whose land was sold, acquire title to the land, or its possession, subsequent to the decree, whether from the purchaser, or other person capable of imparting it, such title may be set up by answer to an applica- tion for the writ; and this, although the title be only of an equitable nature. 5 Where it appears that the person in pos- 1 Nutwell v. Nutwell, 47 Md. 35, 43. On page 45 it is said that while as a rule the proceeding is not a proper one in which to try the ques- tion of right between the parties, yet the rights of the parties must be considered in order to determine how and in what character and under what title, the party in possession holds. Every application for the writ necessarily involves, to some extent, an inquiry into the nature and character of the holding by the party sought to be ousted. In this case it was argued that the statute, being in the code article on pleading, practice and process at law, did not apply to courts of equity; see pages 40-41, 50-51. 2 Nutwell v. Nutwell, 47 Md. 35, 45. 3 Deakins v. Rex, 60 Md. 593, 598; see the facts of this case, in which the validity of the judgment and the sale was attacked. 4 Schaefer v. Amicable Co., 53 Md. 83, 87-88; it is here said that it would be anomalous if under such circumstances the fruits of the decree should be frustrated and its operation indefinitely postponed by the renewal of dilatory pleadings. 5 Nutwell v. Nutwell, 47 Md. 35, 43; see the facts in this case; and 40 §532-533 Sales under decrees. 626 session was not a party to the proceedings in which the property was sold, but held title prior to the filing of the'suit, paramount and adverse to the purchaser and all the parties to the suit, and that the purchaser had knowledge of the adverse claim, the writ should not be. issued. 6 In a mortgage sale under a power to sell, it was objected that the power could not be exercised by the person who did exercise it, but the objection was overruled and the sale finally ratified ; the question could not afterward be raised in a collateral way in answer to the application for the writ. 7 In an execution upon a judgment at law, if the 'pur- chaser buys an equitable title, and this title be one which in- cludes possession of the property, the writ is applicable to give the purchaser possession. 8 §533. The present Statute. — The present statute 1 pro- vides in substance that when any lands, or tenements shall be sold under any of the proceedings above-named, and the debtor 2 in the execution or decree, or the insolvent grantor or mortgagor in the deed of trust or mortgage, or any person holding under said debtor, insolvent grantor or mortgagor by compare, for the form of proceeding, Schaefer v. Amicable Co., S3 Md. 83, 89. 6 Griffith v. Hammond, 45 Md. 85, 88-89; i n this case the application for the writ was submitted on petition and answer, and the court as- sumed the allegations in the answer to be true; compare the procedure in Schaefer v. Amicable Co., 53 Md. 83, 88-89. 7 Dill v. Satterfield, 34 Md. 52, 53. 8 Deakins v. Rex, 60 Md. 593, 595-596; in this case it is further said that the pendency of ejectment suits for the same land forms no ground for denying the writ; page 597. In Meloy v. Squires, 42 Md. 378, 382-383, a writ was prematurely issued; it was, however, executed, and as the purchaser was entitled to the possession, it would have been an idle proceeding to quash the writ, or to put parties in possession when it appeared that their right of possession was at an end. See also the facts in Harryman v. Starr, 56 Md. 63, 68, in which the writ was directed to be issued. *Act of 1890, ch. 635, amending code of 1888, art. 75, sec. 88. 2 In Nutwell v. Nutwell, 47 Md. 35, 43, it was held under the similar clause in the act of 1864, ch. 283, that the h»irs of a deceased debtor, whose real estate was sold in a creditors' suit, and who were parties to the cause, and who retained the possession of the estate devolved on them by descent, might be considered debtors under the act. 627 Sales under decrees. §533 title subsequent to the date of the judgment, decree, deed of trust or mortgage, or any person claiming under the devisor of the will, 3 shall be in actual possession and shall fail or refuse to deliver possession to the purchaser, the judge of the proper court 4 shall, 5 on application in writing, to be verified by the affidavit of the purchaser, or his attorney, unless good cause 6 to the contrary be shown 7 by a specified time, s issue a writ 9 in the nature of a writ of habere facias possessionem, command- ing the proper officer 10 to deliver possession to the purchaser. Other provisions relate to sales made under powers in wills, and also provide that should the person evicted re-enter without 3 The statute excepts cases of tenancies created in the lifetime of the devisor, which shall be fulfilled as now allowed by law. 4 The act names the courts. 5 The word "shall" appears to be mandatory, and not merely di- rectory; see Schaefer v. Amicable Co., 53 Md. 83, 88-89. 6 In Schaefer v. Amicable Co., 53 Md. 83, 88-89, it is said that to show good cause in the sense of the statute means not only to object in writ- ing, but to answer, in solemn form, according to the usages and practice of the court in which the proceedings are pending, under oath, (if in equity,) the allegations of the petition, so that the court may have some warrant for withholding the relief it is commanded to give. It implies, also, not only averments, but evidence to sustain them, constituting good cause to the contrary. The prima facie title of the purchaser to possession, established by the record, must be overcome by proof to the contrary. The onus probandi is on the respondent by virtue of the stat- ute. See also Deakins v. Rex, 60 Md. 593. 597. In this case of Schaefer v. Amicable Co., 53 Md. 83, 84-85, the purchaser filed its petition, to which the person in possession, the mort- gagor, filed a paper not under oath, making various allegations as to certain agreements and acts of the purchaser as good cause why the writ should not issue. Some days afterwards, without further plead- ings, the court ordered that the first order he made absolute and that the writ issue. This procedure was approved on appeal. 'The cause is to be shown by the party in actual possession, his agents or attorneys, or other persons concerned. In Nutwell v. Nutwell, 47 Md. 35, 43, it was said that the act of 1864, ch. 283, did not lessen or affect the right of the party against whom the proceeding is taken to resist it, by showing sufficient cause against it. 8 Within not less than fifteen days or more than thirty days from the filing of such application. "The writ is to recite the proceedings had in said process. 10 The sheriff, coroner or elisor. §533 Sales under decrees. 628 the consent of the purchaser he shall be guilty of a misde- meanor; and, furthermore, prescribe the punishment. 11 "Sections 89, 90, 91 and 92 of article 75 of the code make other pro- visions in reference to the writ. Code, art. 66, sec. 19, provides that the purchaser of land sold under article 66 of the code, shall be entitled to sue 'forth, out of the court confirming the sale, a writ of possession against the mortgagor, his heirs, executors or assigns. Code, art. 16, sec. 168, provides that "the court may cause, by in- junction, the possession of the estate and effects whereof the possession or a sale is decreed, to be delivered to the plaintiff, or otherwise, ac- cording to the tenor and import of such decree, and as the nature of the case may require." (In Brown St. Bldg. Assn. v. Gros, circuit court number 2 of Bal- timore city, docket 1894 B, fol. 172, a copy of an order of court directing a writ of habere facias possessionem to issue, unless cause to the contrary were shown by the defendant in possession, could not be personally served on the defendant, although repeated efforts were made; upon petition, stating these facts, the court ordered that a copy of the peti- tion and order should be tacked on the front door of the dwelling on the premises and that this should be deemed sufficient service, in lieu of personal service. This practice has existed for some years.' — , Brewer.) CHAPTER XXVII. The auditor, auditor's account and proceedings in reference to claims. § 534- The code provisions. 535: The auditor's office, powers and duties. 536. The auditor's fees. 537. When a reference is not necessary. 538. Filing claims in creditors' suits. 539. Filing claims in other suits. 540. When claims may be filed. 541. Character of proof required. 542. Stating the account; notice. 543. Allowance of claims by auditor. 544. Exceptions. 545. Form of exceptions. • 546. When exceptions are not necessary. 547. Who may plead limitations. 548. How and when the statute may be pleaded. 549. Other matters in reference to the statute. 550. Proceedings to complete defective proof. 551. Ratification in part. 552. Final ratification. 553- Opening the account after final ratification. 554. Payment of the amounts allowed. 555. The auditor and master. 556. Office and duties of the auditor and master. §534. The code provisions. — The code 1 provides that every judge of a court of equity may appoint, during his pleasure, a person of integrity, judgment and skill in accounts, to be auditor for the court of which he is judge, who shall, be- fore he enters upon the duties of his appointment, take an oath, to be administered by the judge making the appointment, well and faithfully to execute the duties of his office, without favor, affection, partiality or prejudice; 2 and all accounts to be stated, iCode, art. 16, sec. 18. This section is substantially the act of 1785, ch. 72, sec. 17, with the addition of the provisions made by the act of 1870, ch. 74, for the appointment of special auditors. 2 Before the act of 1785, ch. 72, sec. 17, it was usual to refer cases of account to commissioners to take testimony and to make a report to the court; for instances, see Woodward v. Chapman, 2 Bl. 68, note case; 629 §534 Auditors' accounts. 630 audited, or settled by such court, shall be referred for such pur- pose to the auditor, 3 who shall have power to administer oaths to all witnesses and persons proper to be examined upon such accounts, 4 and shall audit, state and settle such accounts agree- ably to the order of the court, and shall return the same to the court to be done with as the court shall think just; 5 and in Clapham v. Thompson, i Bl. 123, note case; Dorsey v. Dulaney, 1 Bl. 465, note case. The act of assembly authorizing the court to appoint an auditor did not abrogate the previous practice, which has never been abolished, and may still be resorted to in cases where the books, documents and proofs are at a distance, and cannot, without much in- convenience, be brought into court. The legislative enactment is an affirmance of the pre-existing powers of the chancellor, and there is" nothing in the statute which withholds from the auditor any authority which properly belongs to his office. The appointment of an auditor under the statute clothes him with all the power properly belonging' to such an officer according to the ancient practice; Dorsey v. Ham- mond, 1 Bl. 463, 465-466; Townshend v. Duncan, 2 Bl. 45, 74-75, 78; Alex. Ch. Pr. 7. See Wisner v. Wilhelm, 48 Md. 1, 9-14, for proceedings before auditors at law. 3 When an auditor's account is to be stated as of course, as for Exam- ple after a trustee's sale has been finally ratified, the clerk lays the pa- pers in the case before the auditor; or the trustee may do so, or any other party interested; it is not necessary that the order ratifying the sale should contain a clause referring the case to the auditor; Whelan v. Cook, 29 Md. 12, 16; Alex. Ch. Pr. 156. In creditors' suits, after the time allowed creditors to exhibit their claims has elapsed, it is usual for the trustee or a party interested to take the case to the auditor; Dorsey v. Hammond, 1 Bl. 463, 470; Alex. Ch. Pr. 140. See also Crapster v. Griffith, 2 Bl. 5, 8, in which the auditor was ordered, upon complaint of a party, to proceed immediately to state an account. independently of this statute, and as an incident to every reference of a case to an auditor, he is authorized to take any testimony deemed requisite in relation to any account, and he may legally administer an oath to a witness. If it is necessary to take proof at a distance, a com- mission may be issued; Dorsey v. Hammond, 1 Bl. 463, 467, 469. A party to a cause may be called before the auditor and examined, and may be compelled, by attachment if necessary, to answer as required; Hammond v. Hammond, 2 Bl. 306, 310-31 1. Testimony taken by an auditor without authority of the court after the accounf has been filed is not admissible; Dodge v. Stanhope, 55 Md. 113, 122. "The court may direct an account to be stated in a certain manner, allowing or rejecting particular claims or amounts; Alex. Ch. Pr. 127- 128; as in Diffenderffer v. Winder, 3 G. & J. 311, 349; Oehler v. Walker, 2 H. & G. 323, 328; Barnum v. Barnum, 42 Md. 251, 272; or may reject 631 Auditors' accounts. §534 all cases where the regular auditor of any circuit court of this State may be interested in any cause, or connected therewith as counsel, or in any case of sickness, or absence of such auditor, or for other cause existing where it may not be proper for such auditor to act, the court may appoint a special auditor, to whom reference shall be made instead of the regular auditor. 6 The an account stated in exact conformity with its expressed views, and order another to be made upon different principles, as justice may re- quire; Clagett v. Crawford, 12 G. & J. 275, 285; Peyton v. Ayres, 2 Md. Ch. 64, 69-70; compare Smallwood v. Hatton, 4 Md. Ch. 95, 100-101; or may after such account dismiss the proceedings; Williams v. Savage Mnfg. Co., 3 Md. Ch. 418, 432; Snowden v. Dorsey, 6 H. & J. 114, 115; or may direct two or more accounts to be stated, presenting different views of a case; as in Pannell v. Farmers' Bank, 7 H. & J. 202, 203, as stated in Maccubbin v. Cromwell, 2 H. & G, 443, 460; or the auditor may of his own motion state different accounts presenting the case in different aspects; as in Barnum v. Barnum, 42 Md. 251, 273; Glenn v. Cockey, 16 Md. 446, 448; Alex. Ch. Pr. 127; or accounts may be stated according to the direction of the parties, presenting their respective views; as in Diffenderffer v. Winder, 3 G. & J. 311, 318-319; Crapster v. Griffith, 2 Bl. 5, 9- When a sale has been ratified and an auditor's account is there- upon stated, and the order of ratification is reversed on appeal, the aud- itor's account necessarily falls with the reversal; Webb v. Haeffer, 53 Md. 187, 191-192; Chilton v. Brooks, 69 Md. 584, 588. 8 Code, art. 16, sec. 18; "and the powers, duties and compensation of such special auditor shall be in all respects the same as those of the reg- ular auditor of said court, and such special auditor shall in all cases, be- fore acting as such, take the oath prescribed to be taken by the regular auditor." Where a decree appointing a special auditor directed him before proceeding to act, to make oath that he would faithfully perform the duties of his office, and his report did not state whether or not he had done so, it was held that unless the auditor did take the oath required, his proceedings were wholly irregular, and the accounts stated by him could not furnish the foundation of a decree; Walker v. House, 4 Md. Ch. 39, 59- Could proof aliunde be offered that the oath had been taken? Compare Young v. Mackall, 3 Md. Ch. 398, 404. The court of appeals has in some cases appointed an auditor to state accounts, upon the basis of which the court has decreed; see Ringgold v. Ringgold, 1 H. & G. n, 84; Collinson v. Owens, 6 G. & J. 4, 12; Diffenderffer v. Winder, 3 G. & J. 311, 349- Special auditors are frequently appointed; instances are in Bar- num v. Barnum, 42 Md. 251, 271; McDowell v. Goldsmith, 24 Md. 214, 218; Glenn v. Cockey, 16 Md. 446, 448. The power of appointing auditors was, and is still, exercised by the equity courts of Maryland under their inherent chancery jurisdic- §534-535 Auditors' accounts. 632 equity rules, also, contain detailed provisions as to the refer- ence of matters to auditors, 7 the duty of the auditor in respect to the reference, 8 and the proceedings before him. 9 §535. The auditor's office, powers and duties. — The auditor is the calculator and accountant of the court. 1 When any calculations or statements are required, all the pleadings, exhibits and proofs are referred to him, so that he may be enabled fully to investigate and put the whole matter in proper order for the action of the court. 2 It is his duty to ex- amine and digest the accounts, to prepare the materials on which a decree or final disposition of the case may be made, and to report the result of his examination, subject to all exceptions' of the parties and the further order of the court. 3 While not in all respects the same, his office is to a certain extent very ana- logous to that of a master in chancery. 4 The auditor is prop- erly a mere ministerial officer; he has no judicial power; he is not an arbitrator, nor is his report under any circumstances considered as obligatory on the parties unless confirmed by the court. 5 His powers and duties extend no further than to pre- tion, independently of the statute; Townshend v. Duncan, 2 Bl. 45, 75, 78. 7 Equity rule S3; code, art. 16, sec. 20; see the rule in full in the ap- pendix. 8 Equity rule 54; code, art. 16, sec. 21. 9 Equity rules 55 aftd 56; code, art. 16, sees. 22 and 23. 1 Trustees v. Heise, 44 Md. 453, 464; Dorsey v. Hammond, 1 Bl. 463, 466-467. 2 Trustees v. Heise, 44 Md. 453, 464-465; Dorsey v. Hammond, 1 Bl. 463, 467. The auditor's powers are broadly stated in Townshend v. Dun- can, 2 Bl. 45, 75; the chancellor deeming it within the legitimate scope of the auditor's powers to make any inquiry, to take testimony, to state any account or to frame any statement which may be necessary or proper to enable the court correctly to dispose of any case in which it has the power to grant relief. 3 Dorsey v. Hammond, 1 Bl. 463, 469-470; Townshend v. Duncan, 2 Bl. 45, 73-74- 4 Trustees v. Heise, 44 Md. 453, "465 ; "his powers and duties are fully stated and defined by chancellor Bland in Dorsey v. Hammond, 1 Bl. 463, 467, and Townshend v. Duncan, 2 BL 45, 74." 5 Dorsey v. Hammond, 1 Bl. 463, 469. Nor could the legislature con- stitutionally "confer upon the auditor any of the judicial powers as- signed by the constitution to the chancellor"; Post v. Mackall, 3 Bl. 486, 524; Dorsey v. Hammond, 1 Bl. 463, 469. 633 Auditors' accounts. §535 pare and put in order the materials upon which the court is to adjudicate. No statement, report or act made by him, for or against any claim, can affect the rights or interests of a party. 6 It is the duty of the auditor to confine himself strictly, to that which appears upon the face of the proceedings and proofs, and to abstain from suggesting any objection, prejudicial to any party, which the court in its regular course would not of itself notice and sustain, if founded on fact; he cannot hunt up and collect the means of making or sustaining any claim or objec- tion in relation to the matter in controversy. 7 It is within the sphere of the duties of the auditor in making his report to ex- press his opinion, after an examination of the claims filed, as to whether they are established or not; 8 and this practice is very generally followed, especially in simple or formal matters of proof. 9 It detracts nothing from the value of the auditor's statement that he indicates his opinion as to whether or not claims are supported by proof. 10 Similarly, it is proper for an auditor to suggest to the court the propriety of suspending a claim for good reasons, or reserving a fund for a particular pur- pose, or any other matter that may aid the court in the settle- ment of the cause. 11 "Welch v. Stewart, 2 Bl. 37, 42; Post v. Mackall, 3 Bl. 486, 524. Ac- counts which have not been finally confirmed are not evidence of the facts stated in them; Diffenderffer v. Winder, 3 G. & J. 311, 340. Re- jection of claims by an auditor is not conclusive without an order of court rejecting them; Spencer v. Almoney, 56 Md. 551, 561. T Dorsey v. Hammond, 1 Bl. 463, 469; on page 471 it is said that he ought not, for example, to object that a claim is barred by limitations, unless the same objection should have been previously taken by a party interested; and see Alex. Ch. Pr. 6, 141. 8 Dorsey v. Hammond, 1 Bl. 463, 464; Trustees v. Heise, 44 Md. 453, 464-465; Alex. Ch. Pr. 141; see the facts in these cases. In Williamson v. Wilson, 1 Bl. 418, 441, it is said that the auditor when "he first intro- duces a claim to the notice of the court, informs the chancellor of all the objections and special circumstances in relation to it, as they ap- pear from the proceedings and vouchers submitted to him." 9 Such as the proper proof of a claim filed to obtain a dividend; Dor- sey v. Hammond, 1 Bl. 463, 471; Alex. Ch. Pr. 141. "Trustees v. Heise, 44 Md. 4S3, 465. "See the proceedings in White v. Okisko Co., 3 Md. Ch. 214, 216. Rule 19 of the equity courts of Baltimore city recognizes the pro- priety of the auditor suggesting questions for the determination of the court. §536 Auditors' accounts. 634 §536. The auditor's fees. — The auditor's fees are regu- lated by statute and rules of court ; l payment may be compelled by order of court, and process of contempt for disobedience to such order may be issued as in other cases. 2 The fees are con- sidered as a part of the costs, and as such are always included in every general award of costs against a plaintiff or defendant, and their payment may be enforced in the same manner as any other costs. 3 1 Formerly the amount was $4.67 per day for every day reasonably em- ployed in stating any account, which meant an allowance of that fee for every account, however short; Dorsey v. Hammond, 1 Bl. 463, 468; in this case the court said that in the most difficult cases, where distribu- tion was to be made among a great multitude of claimants, the audi- tor's fees were rarely over one hundred dollars in any one case. In Walker v. House, 4 Md. Ch. 39, 58, 60, the sum claimed by the auditor was $863.33; see the remarks of the chancellor. By code, art. 16, sec. 19, it is provided that "the auditor shall be allowed four dollars and fifty cents per day for every day he shall be reasonably employed in stating, auditing and settling any account, to be paid by the party desiring such accounts to be stated, audited and settled, and taxed in the bill of costs of the party for whom the de- cree may pass in the cause." In Baltimore city the auditor's "day" consists of two hours. Under the present practice in Baltimore city, the fees have grown larger. In Prunty v. Basshor, Daily Record, May n, 1889, opinion by Phelps, J., an auditor's fee of $1750 was not objected to as excessive by either side. In State v. Supreme, &c, League, Daily Record, Nov. 1, 1894, in the superior court of Baltimore city, opinion by Ritchie, J., an allowance of $2500 was granted. Rule 19 of the equity courts of Baltimore city provides that the auditor shall notify the parties to a cause or their solicitors by postal card of the filing of the report and account; forty of such notices are made equivalent to one day's service of the auditor; for a less number, he is compensated in the same proportion, and is allowed for the cost of the postal cards; see the rule in full. ■By rule 32 of the equity courts of Baltimore city the auditor is required to annex to his account "a certificate of the number of days actually occupied by him in making out the account; and for his services he shall be allowed the per diem now fixed by law, and also an allowance for notices to persons interested in the distribution, as pro- vided by rules of court, and in no case shall he be allowed additional fees except by special order of court for cause shown upon petition." 2 Code, art. 16, sec. 154. 'Dorsey v. Hammond, i Bl. 463, 467; it is said that in cases where an account is necessary in any manner to ascertain the claim of a party, he 635 Auditors' accounts. §537-538 §537. When a reference is not necessary. — If an account consists of very few items it may not be necessary to refer the case to the auditor for adjustment, but the court in its discretion may perform this duty and ascertain the proper amounts without the aid of an audit; 1 and so, if there is but a single item to be determined, which the court may ascertain, a reference to an auditor is unnecessary. 2 And where a sum for distribution was so small that it would be wholly consumed in the expense of stating an account, the court considered it pro- per to distribute it as interest among those entitled, without the expense of another audit. 3 The unnecessary multiplication of audits is condemned, as it increases the costs, produces delay, prevents full insight at once into the condition of an estate and may seriously mislead. 4 §538. Filing claims in creditors' suits. — In the or^ dinary case of a creditors' suit, or where there is a fund in court, and there is an order requiring creditors to come in and assert their rights and to participate in the distribution, and in similar cases, the simple fact of a party appearing and filing his claim in the cause, gives rise to the presumption that he intends to make himself a party to the record, for otherwise he would not be in a position to take the benefit of the proceeding. 1 Any creditor may thus make himself a party by filing his claim with alone is chargeable primarily, although he may not have specially de- sired the account; and where a party instructs the auditor to state an account in a certain way, he alone is chargeable upon the ground of its having been specially desired by him. Compare Winder v. Diffenderf- fer, 2 Bl. 166, 176. iKorns v. Shaffer, 27 Md. 83, 90-91; see also Jenkins v. Whyte, 62 Md. 427, 438-439- 2 Bell v. Gosnell, 31 Md. 568, 574. 3 Trayhern v. Nat'l Mechanics Bank, 57 Md. 590, 600; see also Ham- mond v. Hammond, 2 Bl. 306, 364. 4 Hignutt v. Garey, 62 Md. igo, 195 ; in this case the estate was audited piece-meal, eight accounts being stated. In the syllabus to Bevans v. Sullivan, 4 G. 383, it is said that "diffi- culties to be encountered in stating accounts are no grounds why ac- counts are not to be decreed, where the court perceives they are neces- sary to the rights of parties and ends of justice." [§538.] iThomas v. Farmers' Bank, 46 Md. 43, 55; Strike's case, 1 Bl. 57, 85; see ante, sec. 81. §538-539 Auditors' accounts. 636 the clerk. 2 If he appears in the case and files his claim, and has the opportunity of offering evidence in its support, and ap- pealing from the order of the court in regard thereto, he be- comes a party. 3 And although persons may be dismissed as parties plaintiff to a cause, they may still be entitled to come in and assert their claim to the fund. 4 §539. Filing claims in other suits.— But where the suit is not instituted for the benefit of creditors generally, butfor- the enforcement of some special right, 1 if a third person, not a party to the cause, be interested in the subject-matter and de- sires to come in and be made a party, or seeks payment of a claim from the fund in controversy, he should, by some appro- priate allegation, make known the nature and character of his right and the ground upon which he seeks to intervene. This is required not only that the court may be advised of the nature of the right, but to enable parties against whom it is asserted to meet and repel it, if improper. 2 Thus an assignee of the interest of a party in a proceeding for sale of real estate for purpose of partition is required to present his claim by petition and estab- lish his title by legal and competent evidence, before he can claim an order securing to him the benefit of the assignment 3 Where the fund is in court and the decree has left open the question of distribution, a claimant by petition,, (not a party to the bill,) of a part of the fund in oppo- 2 Hall v. Ridgely, 33 Md. 308, 310; Post v. Mackall, 3 Bl. 486, 498. 3 Farmers' Bank v. Thomas, 37 Md. 246, 257; Alex. Ch. Pr. 128. 4 Whelan v. Cook, 29 Md. 12, 16. 1 As for the sale of mortgaged property, or a proceeding for a sale to satisfy a vendor's lien; see ante, sec. 81. 2 Thomas v. Farmers' Bank, 46 Md. 43, 55-56; in this case merely filing a short copy of a judgment in a case brought to enforce a vendor's lien did not make the creditor a party to the cause. 3 Brown v. Thomas, 46 Md. 636, 641; here a person appeared in the case after the auditor's account was filed, without the formality of a petition, describing herself as assignee of an interest in the fund; the claim was not set forth, nor the fact upon which it was founded; it was held that the claim was not properly filed. See the statement of the Eng- lish practice, p, 641; Alex. Ch. Pr. 130; compare the practice in Duvall v. Farmers' Bank, 4 G. & J. 282, 294; Maccubbin v. Cromwell, 2 H. & G. 443, 458-459; Gaither v. Welch, 3 G. & J. 259, 263-264; Ellicott v. Welch, 2 Bl. 242, 244-245; Hammond v. Hammond, 2 Bl. 306, 345. 637 Auditors' accounts. §539-540 sition to another claimant originally a party, need not ask for a subpoena either against other parties, nor procure an order nisi on his opponents.* A petition is a proper mode of affecting a fund in equity where no other parties are to be brought in to litigate the application than such as or ought to be parties to the original bill. 5 §540. When claims may be filed. — A creditor may come in and file his claim at any time before a distribution of the proceeds of sale has been actually made under a finally rati- fied auditor's account. 1 Where a fund remains in court, the application of a creditor whose claim has been overlooked or omitted, if he has not been guilty of laches, is entitled to favor- able consideration, and will always, upon the institution of pro- per proceedings, be allowed to participate in the distribution. 1 So long as the money is under its control, the court will let in a creditor who has been guilty of no negligence. It frequently happens, that notwithstanding the usual method, by advertis- ing, is resorted to in order to notify creditors, they are not in fact advised of the proceedings. A creditor in this position may apply for a new reference, and seek to participate in the fund. 3 When a creditor whose claim has not been filed is not 4 Balch v. Zentmeyer, n G. & J. 267, 282-283. 5 Hays v. Miles, 9 G. & J. 193, 198. In Hewitt's appeal, 55 Md. 509, 517, the interests of certain per- sons appeared from the proceedings, and it was not therefore necessary for them to file their claims. See Abrahams v. Myers, 40 Md. 499, 507-508, in which it was held that the claims of certain creditors were not "filed," although the creditors had filed them in connection with their evidence when ex- amined as witnesses. iStrike's case, 1 Bl. 57, 85; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 263, 265; Hammond v. Hammond, 2 Bl. 306, 364; Dorsey v. Ham- mond, 1 Bl. 463, 468. 2 Price v. Merchants' Bank, 29 Md. 369, 375-376; in this case the ap- pellee filed a petition and claim, under oath, stating that since the filing of the auditor's report, of which it had no notice, but which had been finally ratified, it had discovered that two promissory notes held by it had been omitted from the report, and prayed that the case be remanded to the auditor for the statement of a new account, in which it might be allowed its due proportion of the trust fund still in the hands of the trustee. The petition was granted. 3 Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 263; Kent v. O'Hara, §540-541 Auditors' accounts. 638 negligent, the court will permit an account already stated to be re-stated for the benefit of such creditor; but the latter must bear the costs of the re-statement. 4 Where a portion of a fund has been distributed and there is a balance in court, a creditor coming in afterwards is put on a footing with other creditors, so far as is possible, by allowing him out of the funds remain- ing, his just proportion of the fund in which he did not share. 6 But if the whole estate has been paid out to creditors, a claimant can take nothing by filing his claim; not because his claim is without foundation, but because by his negligence he has lost all means of relief. 6 §541. Character of proof required. — Proper proof is such proof as is required for authenticating a claim in the or- phans' court. 1 Proof of this nature is, however, only of a primary character, and stands in the place of full proof only until full proof is demanded; from which moment the primary proof 7 G. & J. 212, 2is ; see also Simmons v. Tongue, 3 Bl. 341, 359-360. "Strike's case, 1 Bl. 57, 86; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 263; Simmons v. Tongue, 3 Bl. 341, 360; Williamson v. Wilson, 1 Bl. 418, 441 ; Hammond v. Hammond, 2 Bl. 306, 364. This is done by deducting the costs from the dividend allotted to such creditor; but this applies only where the fund is insufficient to pay all creditors in full; for if there is a surplus, the costs of re-statement would be payable therefrom; Dorsey v. Hammond, 1 Bl. 463, 468; see also Kent v. O'Hara, 7 G. & J. 212, 215; White v. Okisko Co., 3 Md. Ch. 214, 223. Small claims may be satisfied out of accruing interest without incurring the expense of a re-statement; Hammond v. Hammond, 2 Bl. 306, 364. 5 Barroll, Ch. Pr. 329; Abbott v. Balto. Steam Packet Co., 4 Md. Ch. 310, 318; Williamson v. Wilson, 1 Bl. 418, 441. •Hammond v. Hammond, 2 Bl. 306, 365; see the remarks here, pages 364-36S. 1 Strike's case, 1 Bl. 57, 88; Dorsey v. Hammond, 1 Bl. 463, 470; Third National Bank v. Lanahan, 66 Md. 461, 468; in this last case it is said that there is no tradition in the profession showing that a different practice has ever prevailed. See also Union Bank v. Mechanics Bank, 80 Md. 371, 383; Alex. Ch. Pr. 129-140; Jackson v. West, 22. Md. 71, 82; Hammond v. Hammond, 2 Bl. 306, 366; Owens v. Collinson, 3 G. & J. 25, 39, quoted in Alex. Ch. Pr. 125, 126; Maccubbin v. Cromwell, 2 H. & G. 443, 458; see also ante, sec. 387. The proof required for authenticating claims in the orphans court is set out in code, art. 93, sees. 84-95. In Semmes v. Young, 10 Md. 242, 246, it was held that the passage 639 Auditors' accounts. §541-542 ceases to be evidence, and the necessity of its production no longer exists. 2 This practice of allowing primary proof to stand until full proof is demanded is founded in convenience and to save expense to suitors. It does not deprive the oppo- site party of his right to have full proof if he thinks proper to demand it. After the claim has been put in issue by a demand for full proof, the court will require strict legal evidence before it is allowed; and it would be error to proceed without strict legal evidence. 3 A demand for full proof of any claim may be made in the pleadings, or by exceptions before the auditor's ac- count is stated, 4 or by exceptions to the auditor's account allow- ing the claim. 6 §542. Stating the account; notice.— The account may, by order of the court, be stated either from the proofs al- ready in a cause, 1 or from such proofs and whatever other of a claim by the orphans court cured any defect in the form of the af- fidavit. 2 Third National Bank v. Lanahan, 66 Md. 461, 468-469; Kent v. Waters, 18 Md. 53, 72-73; Hammond v. Hammond, .2 Bl. 306, 366. In Allender v. Vestry, 3 G. 166, 172, the plaintiffs sought to en- force by sale their claim against certain property; the defendants an- swered and called for full proof of the claim. Upon exceptions to the auditor's account it was urged that the plaintiffs' claim had not been authenticated in the mode prescribed. But it was held that the de- mand for full proof dispensed with the ordinary proof of the claim; such primary proof would only have stood until full proof was de- manded, and, therefore, it was said, why should primary proof be of- fered when it would be inadmissible when the full proof was required? 3 Macubbin v. Cromwell, 2 H. & G. 443, 458-460. See the instances in Davis v. Gemmell, 73 Md. 530, 561-562, per Miller, J. ; and compare Kent v. Waters, 18 Md. 53, 72. As to proof of vouchers submitted to the auditor, see Bur- roughs v. Bunnell, 70 Md. 18, 26-27; Dennis v. Dennis, 15 Md. 73, 127- 134, 138-139- ^Compare Williamson v. Wilson, 1 Bl. 418, 441; Dorsey v. Ham- mond, 1 Bl. 463, 470; Alex. Ch. Pr. 142. 5 In Pannell v. Farmers' Bank, 7 H. & J. 202, as stated in Maccubbin v. Cromwell, 2 H. & G. 443, 459-460, the exception was that the debts were not proved by legal evidence; this put the testimony in issue; see also Jackson v. West, 22 Md. 71, 82. iAs in Calvert v. Carter, 18 Md. 73, 109, in. §542 Auditors' accounts. 64° proofs may be produced before the auditor. 2 In the former case no notice of stating the account is necessary, as the only object of notice is to enable the parties to produce proof, which in such case would not be admissible, as the decree directs the account to be stated from the proof already in the cause. 3 In the latter case the parties should be notified by the auditor in order that they may have an opportunity to produce their proofs. 4 2 As in McDowell v. Goldsmith, 24 Md. 214, 218; Frieze v. Glenn, 2 Md. Ch. 361, 363; compare Worthington v. Hiss, 76 Md. 172, 188. 3 Calvert v. Carter, 18 Md. 73, 109, ill. When the rights of the par- ties appear on the face of the decree, or in the previous proceedings (as where a decree directs a sale of mortgaged premises, &c), the auditor states the account without giving notice to any of the parties; Alex. Ch. Pr. 156. Under equity rule 54; code, art. 16, sec. 21; if evidence is to be produced or vouchers filed, the auditor must assign a time and place and give notice to the parties or their solicitors. 4 Equity rule 54; code, art. 16, sec. 21. An objection raised by persons claiming to be parties that the account was stated and ratified without notice to them, was disposed of by the fact that they were not parties in the cause, and were, therefore, not entitled to notice; Whelan v. Cook, 29 Md. 12, 15-16. In Walker v. House, 4 Md. Ch. 39, 59, the defendant having filed exceptions to an auditor's account, the auditor filed a paper stating that the account was based upon information furnished by the defend- ant himself. This statement could not be received as evidence, being ex parte and not warranted by the terms of the order under which he was acting, which required that proof should be taken on notice to the par- ties. In Grove v. Todd, 45 Md. 252, 259-260, it was said that the court cannot assume that the auditor has omitted to include any item given in evidence which should have been included. The presumption is that an account is made up to the time of filing; or, as stated in Alex. Ch. Pr. 140, up to some particular date selected with reference to the circum- stances of the estate. In Boteler v. State, 8 G. & J. 359, 384, the auditor distributed a fund "to the creditors of C"; the names of these creditors, and the amount to which each was entitled, should have been set out. In Calvert v. Carter, 18 Md. 73, in, it is said that it is not in the province of the auditor to tax the costs upon a party in his account; but his having done so was no ground for a reversal of the decree, as the latter disposed of the costs independently of the account; compare Dodge v. Stanhope, 55 Md. 113, 117. In Bowie v. Berry, 3 Md. Ch. 359, 365, accounts were informally stated, but the counsel agreed that they might be considered as if reg- ularly stated. Compare also Sangston v. Hack, 52 Md. 173, 188; Rust v. Chis- olm, 57 Md. 376, 383-384; Dennis v. Dennis, 15 Md. 73, 112. 641 Auditors' accounts. §543-544 §543. Allowance of claims by auditor,— When a case is sent to the auditor without special instruction from the court he admits into his account every claim that has been filed and properly authenticated. 1 The allowance of claims which have not been verified by the oath of the persons preferring them, or by those who by law ought to prove them, or which have not been established by other testimony, is not approved. The reason of requiring proof is to make sure of the claim be- ing a just and unpaid debt; 2 and, if not disputed, the claim is always allowed on the production of proper proof for its au- thentication. 3 §544. Exceptions. — The auditor's account having pre- pared and arranged all the materials for the judgment of the 1 Dorsey v. Hammond, i Bl. 463, 470; in this case, and in Williamson v. Wilson, 1 Bl. 418, 440-441, it is said that all claims having any plaus- ible or probable validity, or which may ultimately be sustained by proof are stated as of course. It has always been considered the duty of the auditor to notice in his report all objections for want of proof; Alex. Ch. Pr. 141. As a general rule only those claims should be noticed which have been filed in the cause; but where the auditor is referred to certain designated claims filed in another case, not consolidated with the one in which the account is stated, and is instructed to state such claims, he may do so in order to prevent shifting the claims or vouchers from one case to another; Winn v. Albert, 2 Md. Ch. 169, 177-178. In Simmons v. Tongue, 3 Bl. 341, 353, the chancellor named the order in which claims in a creditors' bill case should be stated in the auditor's account; compare Trustees v. Heise, 44 Md. 453, 465. See White v. Okisko Co., 3 Md. Ch. 214, 217, 223, as to reserving a fund to meet a claim, the validity of which was in litigation. 2 Hignutt v. Garey, 62 Md. 190, 192-193; in this case the lack of the usual proper proof was obviated by peculiar circumstances. See also Davis v. Gemmell, 73 Md. 530, 546-547, 562. In practice in Baltimore city the auditor admits every claim which has been filed, which on its face appears just and fair whether sufficiently authenticated or not. Such as are not so authenticated he designates as suspended, and makes special note of in his report to the court. Thus the claimants are notified of the defect in proof, and time is afforded them to supply what is necessary; Barroll, Ch. Pr. 330. 3 Third National Bank v. Lanahan, 66 Md. 461, 468. As to the amendment of claims after being filed, see Simmons v. Tongue, 3 Bl. 341, 359- 41 §544 Auditors' accounts. 642 court, stands over as of course some short time 1 after it has been returned and filed. 2 If, after the lapse of the appointed time, no exceptions are taken, the report may be finally confirmed. During such time, however, a party may put in any exception, upon which he may ask the judgment of the court. If the excep- tion presents a question of fact, an answer may be called for and proofs taken in relation to it; 8 but if it presents only a ques- tion of law, then, or after the answer and proofs have been filed, a day may be appointed for the hearing of the matter. 4 A person who is not a party to a cause, and has not established a claim to the fund, has no standing to except to the distribu- tion made by the auditor's account. 5 Exceptions, if sustained, operate beneficially for those who do not file exceptions, as well as for the exceptants; 6 but this does not apply to exceptions based upon the statute of limitations. 7 Although exceptions be not filed within the period limited for filing them by the order of court, yet they are in time if filed before the .action of the court on the auditor's account. 8 The rule which allows parties, whose claims have been omitted, to come in, on terms 1 In the circuit courts of Baltimore city, by rule 19, the auditor's re- port stands regularly for confirmation after the tenth day, reckoning from the day of filing thereof, unless exceptions be filed thereto within that time, or some questions be suggested by the auditor in his report for the determination of the court. 2 Upon the filing of the account, the clerk passes an order nisi for its ratification under the authority of code, art. 17, sec. 28; ante, sec. 6, and note. 3 After notice to the creditor against whose claim the testimony is to be directed; Post v. Mackall, 3 Bl. 486, 496; Williamson v. Wilson; 1 Bl. 418, 434. ^Williamson v. Wilson, 1 Bl. 418, 441. See the form of the order setting exceptions for hearing in Dixon v. Dixon, 1 Md. Ch. 271, 274. 5 Brown v. Thomas, 46 Md. 636, 640; Sumwalt v. Tucker, 34 Md. 89, 92. As to the right of a trustee for the benefit of creditors to except to the allowance of a claim, compare Brown v. Deford, 83 Md. 297, 310; ante, sec. 356! See also Jackson v. West, 22 Md. 71, 83. 6 Thomson's appeal, 15 Md. 268, 283. 7 See post, sec. 549- 8 Calvert v. Carter, 18 Md. 73, 89, 110-111; hence where by the order of court the order nisi expired October 25, exceptions filed October 27 were in time, the court not having previously ratified the account; com- 643 Auditors' accounts. §544-545 prescribed by the court, establish their claims, and participate in the dividend, does not extend so far as to permit the newly admitted creditor to question by petition the rights of any other creditor which have been judicially settled." There is no instance in which a claim once established as between pro- per parties can be again questioned by anyone who may be thereafter allowed to come in and participate with either of the original litigants, unless upon some ground of alleged fraud and collusion. 10 §545. Form of exceptions. — Every exception to an auditor's account ought to point out the particular error or errors objected to. General exceptions, which only transfer the examination, of the papers from the auditor to the chan- cellor, cannot be considered. 1 For the purposes of an appeal, pare McCullough v. Pierce, 55 Md. 540, 547, in which exceptions were filed after the ratification, but before enrolment of the order. In Williamson v. Wilson, 1 Bl. 418, 441, and Alex. Ch. Pr. 142, it is said that exceptions and testimony may be taken before the cause goes to the auditor; in Dorsey v. Hammond, 1 Bl. 463, 470, it is said that this course, however, is rarely or never taken. As to the right to "surcharge and falsify," see Williams v. Savage Mnfg. Co., 1 Md. Ch. 306, 323; Young v. Twigg, 27 Md. 620, 644. 9 Trayhern v. Nat'l Mechanics' Bank, 57 Md. 590, 598; Cape Sable Co's. case, 3 Bl. 606, 642-643; in the latter oase a petition for an allow- ance for fees was filed by a sheriff, and an order was passed setting the petition for a hearing on a certain day, after the service of copy of the petition and order upon the solicitors in the case. Upon the day named, no person appeared, and the chancellor thereafter delivered an opinion and passed an order directing the payment of the fees. Afterwards certain creditors, who came into the case after the filing of the petition but before the expiration of the time allowed to file claims, sought to attack the allowance. The court held that the sheriff's claim had been regularly adjudicated and could not be questioned. 10 Cape Sable Co's. case, 3 Bl. 606, 643; compare Hignutt v. Garey, 62 Md. 190, 192; Kent v. Waters, 18 Md. 53, 72. *In Scrivener v. Scrivener, 1 H. & J. 743, 747, the exception was to the entire account as against the evidence. The chancellor said that such an exception ought not to be filed. In Norwood v. Norwood, 2 Bl. 471, 481, note case, the exception was "for that the auditor hath omitted to charge the defendant with sundry sums of money and with sundry articles properly chargeable in §545-546 Auditors' accounts. 644 it is just as necessary that specific exceptions should be filed to an auditor's report as to the admissibility of evidence or the competency of a witness; an exact and definite statement of exceptions is required. 2 But it is not necessary that all the reasons relied upon to support an exception should be stated in the exception itself; 3 and the substance rather than the form of the objection must determine its sufficiency. 4 §546. When exceptions are not necessary. — There are two classes of cases in which it is not necessary to file ex- ceptions to an auditor's account in order to raise objections thereto. 1 The first is where an account is stated by the direc- tion of a party to represent his views and claims, as raised by the pleadings or otherwise; 2 the second is where the rights of the parties have been adjudicated by the court, and the auditor in stating his account merely exhibits a statement of those rights as adjudicated. 3 account." The chancellor considered this "indefinite and uncertain. It does not specify the money and particular articles." In Burroughs v. Bunnell, 70 Md. 18, 28, the exception was to the allowance of "a list of claims," without specifying what claims were meant. This could not be considered. In Young v. Omohundro, 69 Md. 424, 431-432, the exception was ''and for other and various reasons apparent on the face of said report." This was held "vague, indefinite and exceedingly general, and no par- ticular item is pointed out." In Calvert v. Carter, 18 Md. 73, 90, in, the exception "for that this exceptant is entitled to credits in addition to those given him in said accounts" was held too general. See also Grove v. Todd, 45 Md. 252, 256; Thomas ,v. Visitors, 9 G. & J. 115, 131. 2 Young v. Omohundro, 69 Md. 424, 432; Darby v. Rouse, 75 Md. 26, 29; Grove v. Todd, 45 Md. 252, 256; ante, sec. 337. 3 Stokes v. Detrick, 75 Md. 256, 267. 4 McDowell v. Goldsmith, 24 Md. 214, 233. *In these cases, it is not necessary to file exceptions in order to en- able a party to take advantage of objections in the court of appeals; see ante, sec. 336. 2 Walter v. Foutz, 52 Md. 147, 152; Anderson v. Tuck, 33 Md. 225, 234; Dennis v. Dennis, 15 Md. 73, 150; Wells v. Beall, 2 G. & J. 458, 467. In Grove v. Todd, 45 Md. 252, 255, and Willard v. Ramsburg, 22 Md. 206, 216, the exceptions were apparently unnecessary. See ante, sec. 336. 3 Miller v. Allison, 8 G. & J. 35, 38; see ante, sec. 336. 645 Auditors' accounts. §547-548 §547. Who may plead limitations.— The statute of limitations 1 may be relied upon by any party to the proceed- ings who is interested in contesting the claim. 2 If it is waived by the original parties to the suit, it may be pleaded by those who come in afterwards ; s and if not presented by the personal representatives, it may be by the heirs or devisees. 4 So also one creditor may plead limitations to the claim of another and thereby prevent it from being enforced against the fund to the prejudice of his claim. 5 §548. How and when the statute may be pleaded. — The objection that a claim is barred by the statute of limita- tions may be made by filing a short note in any form without oath, stating in substance that the objector relies upon the bar of the statute. 1 An exception presenting the objection sub- 1 See, upon the subject of limitations in equity, the note to Chew v. Farmers' Bank, 2 Md. Ch. 231, in Brandy's edition. 2 Hall v. Ridgely, 33 Md. 308, 310; Carroll v. Waring, 3 G. & J. 491, 493, per Bland, Ch. In McDowell v. Goldsmith, 24 Md. 214, 230, and McDowell v. Goldsmith, 6 Md. 319, 336-337, it was held that the grantee in a deed al- leged to be fraudulent may plead the statute to the claim of a creditor of the grantor, seeking to set the deed aside; and the administrator cannot deprive the grantee of this defense by a confession of judgment in favor of the creditor. In Post v. Mackall, 3 Bl. 486, head note, it is said that the statute cannot be relied upon by a person who has nothing to protect by it. In Bannon v. Lloyd, 64 Md. 48, 51, it was said that there is noth- ing in the statute denying the privilege of pleading it to non-residents of the State. 3 Hammond v. Hammond, 2 Bl. 306, 366. 4 Strike's case, 1 Bl. 57, 92; Strike v. McDonald, 2 H. & G. 191, 236; Post v. Mackall, 3 Bl. 486, 498; McCormick v. Gibson, 3 Bl. 499, 508, note case. In Davis v. Gemmell, 73 Md. 530, 536-538, it was held that in the distribution of the assets of a corporation among its creditors, a stock- holder as such cannot interpose the plea of limitations to the claim of a creditor, when the corporation is a party and declines to make such defence; compare p. 560, per Miller, J. 5 Strike's case, 1 Bl. 57, 91-94; Strike v. McDonald, 2 H. & G. 191, 238; Post v. Mackall, 3 Bl. 486, 498; Williamson v. Wilson, 1 Bl. 418, 434, 441- [§548.] 1 Hall v. Ridgely, 33 Md. 308, 310; Carroll v. Waring, 3 G. & J. 491, 494. See also Welch v. Stewart, 2 Bl. 37, 41; McMechen v. Chase, 1 Bl. 85, note case. §548-549 Auditors' accounts. 646 stantially is sufficient, although defective in the technical form usual in exceptions. 2 The objection must, however, show that the statute is relied on. 3 As a rule the statute may be pleaded at any time after the voucher has been filed, either before the case has been sent to the auditor or afterwards, or by way of exception to his account allowing it, 1 unless the party relying on it has debarred himself by some act necessarily implying a waiver of the defense, as by first contesting the claim on its merits. 6 §549. Other matters in reference to the* statute. — The statute of limitations runs until the date of filing the claim in the case, which date is the commencement of the suit as to that claim. 1 The statute enures only to the benefit of the person who pleads it, and others can receive no advantage 2 McDowell v. Goldsmith, 24 Md. 214, 219, 233; in this case an excep- tion to a claim "for that the same is now shown to be barred by limit- ations" was held sufficient. See also McCormick v. Gibson, 3 Bl. 499, 509, note case; Dorsey v. Dorsey, 6 G. & J. 12, 13, 15. , 3 Baden v. Perkins, 77 Md. 465, 468-469. 4 Hall v. Ridgely, 33 Md. 308, 310; Welch v. Stewart, 2 Bl. 37, 41-42; Young v. Mackall, 3 Md. Ch. 398, 409; McDowell v. Goldsmith, 24 Md. 214, 233. B Hall v. Ridgely, 33 Md. 308, 311; Cape Sable Co's. case, 3 Bl. 606, 672; McMechen v. Chase, 1 Bl. 8s, note ca9e; Welch v. Stewart, 2 Bl. 37, 41-43; Post v. Mackall, 3 Bl. 486, 524; Brendel v. Strobel, 25 Md. 395, 400. Thus in Hall v. Ridgely, 33 Md. 308, 311, it is said that where on appeal a claim is allowed by the court of appeals, and the cause is re- manded for further proceedings, it is too late then to plead the statute of limitations to the claim; citing Williams v. Banks, 19 Md. 22, 36; or where an original plaintiff presents his claim with his bill, and the de- fendant in his answer denies its existence, but does not plead limitations thereto, he cannot, after the case has been contested on the ground of the existence of the claim, rely upon the statute by way of exception to the audit which allows it; citing Brendel v. Strobel, 25 Md. 395, 400. 1 Hall v. Ridgely, 33 Md. 308, 310; Strike's case, 1 Bl. 57, 94; Strike v. McDonald, 2 H. & G. 191, 238; Welch v. Stewart, 2 Bl. 37, 41; Post v. Mackall, 3 Bl. 486, 498; McCormick v. Gibson, 3 Bl. 499, 509, note case; Hall v. Creswell, 12 G. & J. 36, 48; McDowell v. Goldsmith, 2 Md. Ch. 370, 389; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 261; McDowell v. Goldsmith, 24 Md. 214, 231; Dixon v. Dixon, 1 Md. Ch. 271, 274; Abra- hams v. Myers, 40 Md. 499, 507-508. In England, the statute ceases to run from the date of filing the bill; Welch v. Stewart, 2 Bl. 37, 41. In Estate of Conrad Leiman, 32 Md. 225, 243, it was held that in 647 Auditors' accounts. §549 therefrom. 2 The period of limitation sufficient to bar any claim will be that which is applicable to the nature of the claim; if founded on mortgage, twenty years; if on judgment, twelve years ; if on simple contract, three years. 3 But in applying the statute it must of course be with all its saving provisos, and subject to such acknowledgments as are deemed sufficient to take a case out of the statute.* By the code the running of the statute is suspended in relation to the heirs and devisees of the debtor, for eighteen months after the death of the debtor; and where the claims have been paid by the executor or adminis- trator, the suspension is for eighteen months after the filing of the bill. 5 No plea can operate against a claim not then insolvency cases, the claims of the creditors if not barred at the time of the application in insolvency, are not afterward, during the execu- tion of the trust, barred by lapse of time; the rule thus differing from that in cases of creditors' bills. 2 Simms v. Lloyd, 58 Md. 477, 479-480; Bannon v. Lloyd, 64 Md. 48, 49; Post v. Mackall, 3 Bl. 486, 498, 518; McCormick v. Gibson, 3 Bl. 499, 500, 508, note case; McCormick v. Gibson, 3 G. & J. 12, 18;. Cape Sable Co's. case, 3 Bl. 606, 672; Dixon v. Dixon, 1 Md. Ch. 271, 274; McDowell v. Goldsmith, 2 Md. Ch. 370, 392; estate of Notley Young, 3 Md. Ch. 461, 477; Thomson's appeal, 15 Md. 268, 283. Thus in Cox v. McCausland, 6 G. & J. 16, 18, where the execu- tor of a deceased debtor pleaded the statute, but the heirs did not, the lands were decreed to be sold. In Bannon v. Lloyd, 64 Md. 48, 49-50, some of the heirs pleaded limitations to the claim first in point of priority, and others of the heirs pleaded the statute to the claim second in point of priority; it was held that each claim should receive the distributive shares of those heirs who had not pleaded to such claim; compare McCormick v. Gibson, 3 Bl. 499, 508-509, note case. 3 Post v. Mackall, 3 Bl. 486, 498; see the illustrations on page 523, where certain claims were barred against the realty, but not against the personalty. ^Strike's case, 1 Bl. 57, 94; Strike v. McDonald, 2 H. & G. 191, 238; as in Hall v. Creswell, 12 G. & J. 36, 47; Cape Sable Co's. case, 3 Bl. 606, 673. A judgment against an administrator is not sufficient to remove the bar of the statute to the original cause of action upon which the judgment was obtained, as against heirs or devisees; ante, sec. 388. 5 Code, art. 57, sec. 7: "Whenever any person may die indebted, and his interest in real estate may be liable to be proceeded against for the payment of his debts by reason of the insufficiency of his personal es- tate, the operation of this article both at law and in equity shall be sus- pended in relation to the heirs and devisees of such debtor for the §549-550 Auditors' accounts. 648 filed or put upon the record; 6 thus a general plea of limitations in the answer of the defendants will not afreet a claim filed subsequently. The proper course is to file exceptions to such claims. 7 Where several conflicting pleas of limitations filed by different creditors can be no otherwise adjusted, that which has been first filed must be allowed first to operate; but where sev- eral pleas are filed on the same day, so as to have a countervail- ing operation against each other they must, so far as they so operate, be rejected. 8 §550. Proceedings to complete defective proof— When funds are in court for distribution among creditors and the auditor reports that certain claims have not been proved, or parties interested object to their allowance for want. of proof, the case may be again referred to the auditor. 1 The account may, in the meantime, be ratified except as to the claims ex- period of eighteen months from the death of such decedent, and where any debts of such person so dying indebted have been or may be paid by his executor, or administrator, and the real estate of such decedent is proceeded against for the payment of his debts, the operation of this article, both at law and in equity, shall be suspended in relation to the heirs and devisees of such deceased debtor, as to the claims so paid, until the lapse of eighteen months after the filing of said bill." See Simms v. Lloyd, 58 Md. 477, 480-481 ; Thompson v. Dorsey, 4 Md. Ch. 149, 151-152; Shepherd v. Bevans, 4 Md. Ch. 408, 411. lo % ^nJ^HSX. 6 McCormick v. Gibson, 3 ,B1. 499, 509, note case. 'Williams v. Banks, n Md. 198, 236-237. s Post v. Mackall, 3 Bl. 486, 525; McCormick v. Gibson, 3 Bl. 499, 509, note case. iDixon v. Dixon, 1 Md. Ch. 271, 273; Winn v. Albert, 2 Md. Ch. 169, 178. In Spencer v. Almoney, 56 Md. 551, 561, it is said: "the rejection of these claims by the auditor is not conclusive. There does not ap- pear to have been an order of court rejecting them. They were simply omitted from the account by the auditor, for want of proof. The prac- tice is to allow further time for proof before final rejection. And that we are to presume the court would allow if applied to." In Abbott v. Balto. Steam Packet Co., 4 Md. Ch. 311, 317-318, a creditor omitted to furnish proof of his claim in due time, having acted on information derived from the receiver that the claim would be allowed; a portion of the fund being still under the control of the court, the creditor was allowed to prove the claim and participate in the dividend. <549 Auditors' accounts. §550-551 cepted to. 2 The auditor may then be directed to state a final account from which all claims not then sufficiently proved are to be excluded, and leave is given to supply the proof, upon such terms as to notice as may be deemed reasonable. Upon the coming in of the report of the auditor, made pursuant to the order, and after the usual time given for filing exceptions, the report may be ratified, whereupon all parties are concluded and the litigation is terminated; 3 after the ratification of this ac- count, if the claimant has failed to prove his claim, the account will not, as a rule, be reopened to enable him to supply new proof.* Creditors must use vigilance in producing proof neces- sary to establish their claims; a different rule would be pro- ductive of negligence. 5 When a creditor petitions to offer new proof of his claim in the interval between the final report of the auditor, made under the directions of the court, and its ratifi- cation, though it is not a matter of course, yet he will be al- lowed to do so under circumstances which would not entitle him to the privilege after the report has been ratified. 6 §551. Ratification in part.— It is sometimes desirable to ratify an audit in one part and leave other parts open for fur- ther proceedings. Thus where a fund was allowed to A, but was claimed by B, who filed exceptions to its allowance, the auditor's account was ratified as to all allowances to other par- ties, reserving the questions between A and B for decision as between themselves, in order that the other parties should not he burthened with costs or prejudiced by delay in consequence of the controversy between' A and B. 1 Similarly an auditor's 2 As in Kent v. O'Hara, 7 G. & J. 212, 214; Williamson v. Wilson, 1 Bl. 418, 441; Watkins v. Worthington, 2 Bl. 509, 515. 3 Dixon v. Dixon, 1 Md. Ch. 271, 273; Williamson v. Wilson, 1 Bl. 418, 442. 4 See post, sec. 553. 5 Kent v. O'Hara, 7 G. & J. 212, 215-216; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 263; in the first mentioned case it is said that a party fil- ing a claim must attend to it, and if by his negligence in not producing proper proof it is adjudicated upon and rejected, he has only himself to blame. e White v. Okisko Co., 3 Md. Ch. 214, 220; Dixon v. Dixon, 1 Md. Ch. 271, 273; see also Whelan v. Cook, 29 Md. 12, 17. iBrown v. Thomas, 46 Md. 636, 642. §551-552 Auditors' accounts. 650 account was ratified as to all claims except those to which ob- jections were made, the consideration of which was reserved until further order. 2 So also where the allowance on a claim is suspended for want of the necessary proof of its validity, the account may be ratified as to the other claims without waiting for a determination upon the claim suspended. 3 The account may also be ratified as stated by the auditor, with any modifica- tions or additions deemed proper, thus avoiding a re-statement of the entire account.* §552. Final ratification. — An order finally ratifying and confirming an auditor's report and account is an order in the nature of a final decree from which an appeal will lie. 1 It is in every sense a judgment of the court; for although it may not constitute a part of the final judgment on the whole case, it is nevertheless always considered as a judgment conclusive of the matter to which it relates, subject only to be reheard or fe- vised for such causes as would induce the court to rehear or revise any other of its judgments. 2 It is conclusive as to the 2 Watkins v. Worthington, 2 Bl. 509, 515; Alex. Ch. Pr. 141. 3 See White v. Okisko Co., 3 Md. Ch. 214, 223. *As in Glenn v. Cockey, 16 Md. 446, 452. iPfeaff v. Jones, 50 Md. 263, 269; Thruston v. Devecmon, 30 Md. 210, 216; Wayman v. Jones, 4 Md. Ch. 500, 512; Taylor v. State, 73 Md. 208, 220; Wilhelm v. Caylor, 32 Md. 151, 163, per Stewart, J.; Marbury v. Stonestreet, 1 Md. 147, 163, per Eccleston, J. ; see ante, sec. 307. In Taylor v. State, 73 Md. 208, 220-221, it is said in reference to the final ratification of an auditor's account distributing funds in the hands of a trustee, that the order is not confined to a mere direction to the trustee to pay certain claims, but as respects the trustee and his sure- ties, has the force and effect of an adjudication in rem distributing the trust estate and operating directly upon that estate. See also Jenkins v. State, 76 Md. 255, 273. In State v. Banks, 76 Md. 136, 142-143, it is said that the rule that the final ratification of an auditor's report, respecting funds in the hands of a trustee, is in the nature of an adjudication in rem conclusively binding on the trustee and his sureties, and finally fixing their liability in case of the trustee's default, only applies to cases where the default of the trustee is within the terms of the sureties' contract. In Bradford v. Jones, 1 Md. 351, 374, it is said that previous to the ratification of the auditor's account, if a trustee pays out money in his hands, he does so at his own risk; after the ratification he would be protected in doing so; see ante, sec. 515. 2 Contee v. Dawson, 2 Bl. 264, 268. 651 Auditors' accounts. §552-553 matters in controversy to which it relates and has the effect of a final decree. 3 The account is res ad judicata, all parties are con- cluded and the litigation is terminated. 4 ' §553. Opening the account after final ratification.— After an auditor's account distributing a fund has been finally ratified, the matter is res adjudicata; and although the fund may yet be under the control of the court, the party petitioning for a rehearing of his claim 1 must come armed with circumstances sufficiently strong to acquit him of the blame apparently im- putable to him for not offering his proof at an earlier stage of the cause. 2 The general rule is that after final ratification, the account will not be re-opened on the application of one whose claim was first suspended and then rejected for want of proof; but this rule may operate harshly in certain cases, in which event it should be relaxed. 3 If the rejection is owing to the negligence of the claimants, they must take the consequences; it would not be proper to delay the final settlement, by allowing parties, after full notice and opportunity to establish their claims, to reopen the judgment pronounced against them by the final ratification of the account. 4 This rule applies even though the fund remains in the hands of the trustee. 5 Although the court will not open the auditor's account at the instance of a party 3 Owings v. Rhodes, 65 Md. 408, 414. 4 Dixon v. Dixon, 1 Md. Ch. 271, 273; Whelan v. Cook, 29 Md. 12, 17; Seldner v. McCreery, 75 Md. 287, 293. In Berry v. Pierson, 1 G. 234, 247-248, it is said that when a party consents to the ratification of an account charging him with a sum of money, that is sufficient evidence of its receipt by him. Compare But- ler v. State, 5 G. & J. 511, 521. *As in Whelan v. Cook, 29 Md. 12, 16-17. 2 Dixon v. Dixon, 1 Md. Ch. 271, 273; Whelan v. Cook, 29 Md. 12, 17. Compare Stewart v. Beard, 3 Md. Ch. 227, 229; Maccubbin v. Crom- well, 2 H. & G. 443, 458-459- 3 Kent v. O'Hara, 7 G. & J. 212, 215-216; Whelan v. Cook, 29 Md. 12, 17; White v. Okisko Co., 3 Md. Ch. 214, 220; Dixon v. Dixon, 1 Md. Ch. 271, 273; see the facts in the latter case. 4 Dixon v. Dixon, 1 Md. Ch. 271, 272; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 263. B Kent v. O'Hara, 7 G. & J. 212, 215; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 263. §553-554 Auditors' accounts. 652 in default, yet where the accounts were remanded by the court of appeals for re-statement for other causes, such party was permitted to produce his evidence. 6 And if after an account has been finally ratified it is re-opened for any cause, any cred- itor whose claim has been disallowed may share in the fund upon application in due time. 7 In dismissing a petition to set aside a ratified account in order to let in new proof, the court •exercises a discretion necessary to the administration of justice. 8 Before enrolment of the order of ratification of an account, the application of a creditor whose claim has been rejected or is for the first time presented, may be considered; but after en- rolment such an application will be rejected. 9 §554. Payment of the amounts allowed. — When an audit is finally confirmed the approved practice is to accom- pany the order with an order to pay the amounts allowed to the parties in interest; but the judgment of the court is as ef- fectually pronounced without this order. After such an ad- judication an order directing payment would at any time be passed as a matter of course. 1 The order of final ratification is to be respected and obeyed without question by the party directed to disburse the fund. In case of failure to do so, the remedy may be by petition by the injured party asking that 6 Barnum v. Barnum, 42 Md. 251, 323; compare Dixon v. Dixon, 1 Md. Ch. 271, 273-274. 'Penniman v. Cole, 41 Md. 609, 614; compare Dixon v. Dixon, 1 Md. Ch. 271, 273-274. s Kent v. O'Hara, 7 G. & J. 212, 215. 9 Whelan v/Cook, 29 Md. 12, 17; as to enrolment, see ante, sec. 284. 1 Lee v. Boteler, 12 G. & J. 323, 328; Leadenham v. Nicholson, 1 H. & G. 267, 279. The final ratification of the audit is a sufficient founda- tion for an order to bring money into the court; Contee v. Dawson, 2 Bl. 264, 268-269. The form of final ratification used in the equity courts of Balti- more city is as follows : "Ordered this day of , by the circuit court of Baltimore city, that the aforegoing report and account of the auditor be and the same is hereby finally ratified and con- firmed, no cause to the contrary having been shown, and that the trustee apply the proceeds accordingly with a due proportion of interest as the same has been or may be received." 653 Auditors' accounts. §554-555 payment be compelled;- it is not necessary to file an original bill. 3 §555. The auditor and master. — A master in chan- cery is an officer of the court who acts as an assistant to the chancellor. 1 In England, prior to the abolition of the office, the functions of the master were numerous, involving duties which in various jurisdictions are now performed by auditors, referees, commissioners and other officers. 2 In Maryland the office at one period existed under the inherent jurisdiction of the court of chancery, independently of statute. 3 Masters may now also be appointed under the constitutional provision that "the judge or judges of any court may appoint such officers for their respective courts as may be necessary." 4 An auditor is appointed simply to act as auditor, although for many pur- poses he is clothed with powers corresponding to those exer- cised by the master in the English court of chancery. 3 The au- ditor and master has all the power of an auditor, together with the more responsible duties of master. 6 The term of office is 2 Thruston v. Devecmon, 30 Md. 211, 216; Owings v. Rhodes, 65 Md. 408, 415. 3 Frieze v. Glenn, 2 Md. Ch. 361, 365; Marbury v. Stonestreet, 1 Md. 147, 156. As to a suit on a trustee's bond for failure to pay the amounts al- lowed in the audit, see Taylor v. State, 73 Md. 208, 220, 221. 1 Bouvier's Law Dictionary. 2 Daniell, Ch. Pr. 1168 et seq.; see Townshend v. Duncan, 2 Bl. 45, 55- 75, for a statement of the powers and duties of an English master in chancery. As to masters in the federal courts, see Foster, Fed. Pr. sees. 307-316. 3 See the note cases to Townshend v. Duncan, 2 Bl. 45, 60-74. Constitution, art. 4, sec. 9; "and such officers of the courts in the city of Baltimore shall be appointed by the judges of the supreme bench of Baltimore city. It shall be the duty of the general assembly to prescribe by law a fixed compensation for all such officers;" but this duty has not been performed with respect to the auditor and master. The fees of the master in Baltimore city are four dollars and fifty cents per day consisting of two hours. In practice, the "day" of the masters is longer than the similar "day" of the auditors. 5 Alex. Ch. Pr. 6; Townshend v. Duncan, 2 Bl. 45, 75; Trustees v. Heise, 44 Md. 453, 465- °For convenience the title master is used in these sections instead of the full title "auditor and master." §555-556 Auditors' accounts. 654 usually until the further order of the court. The pressure of business in the equity courts of Baltimore city has rendered necessary the appointment of two masters. 7 §556. Office and duties of the auditor and master.— The master is the adviser of the court as to matters of jurisdic- tion, parties, pleadings, proof and in other respects where he may be of assistance to the court. It is only, however, in cases where the parties do not desire to argue the case before the court that the services of the master are used; whenever an argument is desired by the parties the matter should be pre- sented to the court. 1 The duties of the master are of an ad- visory character only. He decides nothing, but merely re- ports to the court the result of his examination of the proceed- 7 Prior to May 21, 1870, the office did not exist in Baltimore city; it was then created and filled by the appointment of Mr. Daniel M. Thomas. The order of court making the appointment was as follows: "In the supreme bench of Baltimore city. This court having had brought to its notice the necessity for the appointment of an additional auditor to the circuit court of Baltimore city, especially to perform such duties appertaining to that office (as the same is defined by chan- cellor Bland in the case of Townshend v. Duncan, 2 Bland, 55 to 75) as may be assigned to him by the judge presiding in the said circuit court, with a view to the promotion of the public interests by dispatch of the business thereof, do concur in opinion as to such necessity; and in order to provide for the same do now appoint Daniel M. Thomas, Esq., to the office of such auditor." 1 Rule 12 of the equity courts of Baltimore city provides that "in all cases submitted without contest, except in ex parte mortgage suits, the papers shall be referred to the auditor and master, who shall report thereon to the court." Rule 18 provides that cases shall be referred to the several "masters in rotation unless otherwise provided by special order of the court; and the clerk shall not give information as to the order of rotation." Although the rule states that "the papers shall be referred" to the master, it is the constant practice for the court to pass a decree without such reference, as in cases where the masters are absent, or where for other reasons a reference may not be desired or necessary. The usual form of order is as follows: "This case being submitted without argument, it is ordered by the court this day of , 1896, that the same be, and hereby is referred to A. B., Esq., auditor and master, to report the pleadings and the facts and his opinion thereon." ■ By rule 31 of the equity courts of Baltimore city the examination 655 Auditors' accounts. §556 ings, 2 with a suggestion as to the propriety of the court passing a decree. The report of the master in the absence of excep- tions is usually received by the court as correct, and the court passes such a decree as the master may certify to be proper. If the master reports to the court that the proceedings are er- roneous and that it is not proper to pass a decree, any of the parties may raise objections to the report by filing exceptions thereto, whereupon the matter may be set down for hearing. If the court adopts the report of the master, the proceedings may be amended, or further testimony taken, or otherwise pro- ceeded with as may be proper; if the court decides that the proceedings are proper, it may thereupon pass such decree as may be necessary. 3 of the assets of the estates in the hands of trustees and other fiduciary officers under the control of the court, is referred to the master; the fee for each examination and report is four dollars, unless increased by special order. See the rule in the appendix. 2 Townshend v. Duncan, 2 Bl. 45, 56-57. 3 As to exceptions to a master's report in the federal courts, see Fos- ter. Fed. Pr. sec. 315. CHAPTER XXVIII. COMMISSIONS AND COUNSEL FEES. §557- Commissions to conventional trustees. 558. Rate of commission to conventional trustees. 559- When the instrument fixes the rate. 560. Trustees under decree of court; receivers. 561. Miscellaneous. Counsel fees. 562. Allowances to trustees. 563. Allowances to other judicial officers. 564. Allowances out of a common fund. 565. Instances of such allowances. 566. Allowances in divorce cases. 567. Allowances in the orphans' court. 568. Miscellaneous. 569. Appearance fees. §557. Commissions to conventional trustees. — Under the rule in force in England, 1 no commissions, as such, 2 are allowed to conventional trustees for their services unless the instrument creating the trust provides for compensa- tion. 3 But this rule has not prevailed in Maryland; it being 1 In Abell v. Brady, 79 Md. 94, 98, it is said that "in England no al- lowance is made, by way of compensation, to one holding a fiduciary relation for services rendered by him in 'the discharge of his duty as trustee, unless the instrument creating the trust provides for the pay- ment of compensation. The principle on which the rule is founded, it has been said, is that he shall not make a profit out of his trust; and the reason of the principle is that he shall not be placed in a position where his interest may be opposed to his duty." To the same effect are Ringgold v. Ringgold, 1 H. & G. 11, 27, 83; Northern Central R. Co. v. Keighler, 29 Md. 572, 579; Sanderson v. Pearson, 45 Md. 483, 484; Winder v. Diffenderffer, 2 Bl. 166, 206. 2 In Ringgold v. Ringgold, 1 H. & G. 11, 27, 84, it is said; "yet the English courts grant per diem allowances, not in the nature of a com- pensation, but under the name of an indemnity. The difference then, in truth, is only in the mode of allowance, not in the principle. It is in fact a mere difference in name." 3 In England, the trustee at the time of accepting the trust may con- tract for an allowance or remuneration for his services; similarly when trustees are appointed by the court; Lewin on Trusts, 9th Edit. 710-711. C56 657 Commissions. §557-558 held that by an equitable construction of, and by analogy to, the statutes allowing commissions to executors, administra- tors, guardians and trustees under judicial sales, and the prin- ciples upon which these statutes are based, compensation should be allowed to a conventional trustee as a reasonable in- demnity for services rendered by him in the discharge of his duties, although no provision for such compensation is made in the instrument creating the trust. 4 Such commissions will ordinarily be allowed where the trustee has performed his duty, unless its performance has imposed no labor or trouble which justly entitles him to compensation, or unless there is something in the nature of the trust itself, or in the terms of the trust in- strument to show that no commissions were intended to be al- lowed or charged. 5 §558. Rate of commission to conventional trus- tees. — In prescribing the rate of compensation, the court takes into consideration the nature and character of the trust estate, and the time and labor required of the trustee in the ex- ecution of the trust. The rate is a matter resting largely in the discretion of the court, its reason and judgment, with refer- ence to all the facts and circumstances surrounding the trust. 1 In trusts under a will or deed, where the instrument does not 4 Abell v. Brady, 79 Md. 94, 98; Northern Central R. Co. v. Keighler, 29 Md. 572, 579-580; Sanderson v. Pearson, 45 Md. 483, 484-485; Ring- gold v. Ringgold, 1 H. & G. 11, 27, 84; Bentley v. Shreve, 2 Md. Ch. 215, 218; Whyte v. Dimmock, 55 Md. 452, 455. Upon the general sub- ject see Perry on Trusts, sees. 916-919, and notes. As to commissions to mortgagees selling property under a power of sale contained in the mortgage, see ante, sec. 470. As a general rule commissions are not allowed to a mortgagee for receiving rents; Gels- ton v. Thompson, 29 Md. 595, 601. Where a deed of trust for the benefit of creditors is declared void for fraud, the trustee will not be allowed commissions; Slingluff v. Smith, 76 Md. 558. 5 Northern Central R. Co. v. Keighler, 29 Md. 572, 580; Sanderson v. Pearson, 45 Md. 483, 485; in the first mentioned case, trustees of a railroad mortgage, executed to secure bonds of the railroad company, were held not entitled to commissions, in view of the character of the services and the terms of the mortgage. JAbell v. Brady, 79 Md. 94, 99. Compare Winder v. Diffenderffer, 2 Bl. 166, 208; Diffenderffer v. Winder, 3 G. & J. 311, 348. 42 §558-559 Commissions. 658 fix a rate, the usual rule is to allow a commission of five per cent, upon the income, 2 although other rates are sometimes fixed. 3 Trustees for the benefit of creditors are generally allowed eight per cent, upon the proceeds of sale, by analogy to the commis- sions allowed to trustees in insolvency. 4 §559. When the instrument fixes the rate. — If the instrument creating the trust provides for a certain rate of com- pensation, that rate will in general be allowed. 1 Thus a trus- tee appointed by will is entitled to the commissions provided for by the will; 2 and so, also, with trustees appointed by deed. 3 In deeds of assignment for the benefit of creditors, the grantor may provide for the payment of reasonable commissions to the trustee. 4 It has been held that the rate of commissions is 2 Abell v. Brady, 79 Md. 94, 99; see the briefs of counsel in this case. 3 Seven and one-half per cent, in Denmead v. Denmead, 62 Md. 321, 322; Hatton v. Weems, 12 G. & J. 83, 111; Higgins v. Higgins, 4 Md. Ch. 238, 245-246; six per cent, in State v. Banks, 76 Md. 136, 146. In Abell v. Brady, 79 Md. 94, 99, the court below allowed a com- mission of six and a-half per cent, upon the income of a very large and valuable real and personal estate; this was reduced to five per cent, by the court of appeals. The court also said: "The estate in some cases may be of little value, and yielding but a small income, but involving at the same time a good deal of labor in its care and supervision, and in such cases five per cent, might not be a just and reasonable compen- sation. On the other hand, where the income is very large, that rate might be considered as excessive.'' Compare also Bentley v. Shreve, 2 Md. Ch. 21s, 218. * Abbott v. Balto. &c, Co., 4 Md. Ch. 310, 313; code, art. 47, sec. 20. Compare Waring v. Darnall, 10 G. & J. 126, 143. iSee Tome v. King, 64 Md. 166, 180. ^Mitchell v. Holmes, 1 Md. Ch. 287, 289. A testator cannot, by his will, deprive his executor of the com- missions allowed by law; McKim v. Duncan, 4 G. 72, 85; Handy v. Collins, 60 Md. 229, 232-233; Renshaw v. Williams, 75 Md. 498, 505. 3 Widener v. Fay, 51 Md. 273, 276; in this case a grantor of a deed of trust fixed the compensation to his trustees at ten per cent. Sub- sequently, other trustees were appointed by the court in lieu of the original ones. It was held that the substituted trustees, being the ap- pointees and officers of the court, and not selected by the grantor for personal considerations, were only entitled to the chancery rate of commissions. *Herzberg v. Warfield, 76 Md. 446, 450. 659 Commissions. §559-560 within the discretion of the court; 5 but an appeal lies from its determination. 6 §560. Trustees under decree of court ; receivers.— The allowanceof commissions to a trustee acting underadecree of court has long been sanctioned in Maryland, both by stat- utes and rules of court. 1 The commission is given to him as a compensation for his trouble and risk in making the sale, bring- ing the money" into court, and paying it away in the manner directed; or, in other words, for the performance of all the duties specified in the decree and the subsequent orders in re- lation to the sale and its proceeds. 2 His compensation may, because of the discharge of his duties being attended with a very unusual degree of labor and risk, be increased; or, on the other hand, it may be altogether withheld or proportionately diminished because of his duties having been improperly or but partially performed. 3 The same rules, in general, apply to re- 5 Brady v. Dilley, 27 Md. 570, 583; in this case it was said that the action of the court in fixing a rate was not the subject of appeal; the court of appeals, however, considered the question of the rate; compare Widener v. Fay, 51 Md. 273, 276. 6 In Abell v. Brady, 79 Md. 94, 101, it is said: "The right to appeal form the order of court fixing the rate of commissions is questioned, but the decision in Diffenderffer v. Winder, 3 G. & J. 311, 347-348, is, we think, conclusive as to the question in the case of a conventional trust." Gibson's case, 1 Bl. 138, 145-146; see the acts of assembly, and rules of the court of chancery, stated in this case; compare Abbott v. Balto. &c, Co., 4 Md. Ch. 310, 311-316. 2 Gibson's case, 1 Bl. 138, 146-147: "The commission allowed to a trus- tee has never been considered, in any respect, as a commission in the mercantile sense of that term. A trustee of this court is a person of legal constitution, with legal duties; and though some of his duties may have a mercantile mixture in them, he does not transact them as a merchant. He acts altogether as a legal officer, and must be paid as such in proportion to his diligence, skill, trouble and risk, not exactly according to the value of the subject in litigation;" see the instances here. See also Denmead.v. Denmead, 62 Md. 321, 325. 3 Gibson's case, 1 Bl. 138, 147; Diffenderffer v. Winder, 3 G. & J. 311, 348. Compare Ellicott v. Ellicott, 6 G. & J. 35. 46; Winder v. Diffen- derffer, 2 Bl. 166, 206-207. (In Baltimore city, where a trustee for the benefit of creditors, or a receiver, has made a distribution of the estate, and afterward small sums of money come into his hands, which would be not much more §560 Commissions 660 ceivers,* although the rule for compensating them is not of the same invariable character as in the case of trustees, owing to the different nature of the services to be performed. 5 The rate of commission is now regulated by rules of court, which are not entirely uniform in the various judicial circuits. 6 These rules are imperative both upon the court and the persons ac- cepting trusts, and the court has no power to disregard them. Such rules are the law of the court and stand as a safeguard to the suitor against the exercise of unrestricted or arbitrary discretion in awarding compensation to trustees acting under the authority of the court. 7 In the case of rules providing for commissions "on sales under decrees or orders of the court," the basis of the allowance is the amount received and paid out by the trustee, not the amount at which the trustee reports he has made a sale. 5 than Sufficient to pay the expenses of distribution, or could only yield a minute percentage on the claims, the court, upon petition, has allowed such sums to be retained by the trustee or receiver as extra compen- sation. Compare rule 24 of the equity courts of Baltimore city. — Brewer.) * Abbott v. Balto. &c, Co., 4 M>d. Ch. 310, 312-316 ; # in this case the precedents are reviewed. Compare Burroughs v. Bunnell, 70 Md. 18, 28. 5 Tome v. King, 64 Md. 166, 180-181 : "As a general rule governing all cases not attended with peculiar circumstances, requiring an aug- mentation, the allowance to receivers of insolvent corporations or pri- vate partnerships should be regulated by the general rule for allowing commissions to trustees." e See the rules of courts in the appendix. Compare the rule of the court of chancery, stated in Gibson's case, 1 Bl. 138, 146; and see Abbott v. Balto. &c, Co., 4 Md. Ch. 310, 316; Alex. Ch. Pr. 370. 'Tome v. King, 64 Md. 166, 180; as to the right of appeal by the trustee, see ante, sees. 355-356. See the instances in Gibson's case, 1 Bl. 138, 145-149; compare McCullough v. Pierce, 55 Md. 540, 541-542; Hodges v. Mullikin, 1 Bl. S03, 508-509. In Stewart v. Glenn, 3 Md. 323, 325, it was held that a promise, by the owner of the equity of redemption of mortgaged property, of double commissions to the trustees foreclosing the mortgage, was a personal one, and did not entitle the trustees to such commissions out of the estate; affirming Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 334,' 341-342. sMcCullough v. Pierce, 55 Md. 540, 545-546. Compare Hodges v. Mullikin, 1 Bl. 503, 508-509. 661 Commissions. §561 §561. Miscellaneous. — In cases where the purchase money of a sale has not been paid, and a re-sale becomes neces- sary, the trustee is entitled to commissions only on the sum actually received by him on account of the first sale, and also commissions on the entire amount of money received by him on the re-sale. The basis for the allowance is the amount re- ceived and paid out by the trustee, and the rule is analogous to that governing the allowance of commissions to executors, ad- ministrators and guardians. 1 The practice of allowing a rea- sonable compensation to the estate of a deceased trustee, who dies before the completion of the trust, is well settled. 2 In some cases the commissions may be divided in proper propor- tion between the estate of the deceased trustee, and his successor in the trust. 3 In certain instances the trust estate may be burdened with double commissions. 4 When commissions are allowed on "receipts and collections" the meaning is the receipts of income from the estate, not forming part of the principal; upon the principal, no commissions can be given. 5 The trus- tee may also be allowed a commission on his disbursements, by 1 McCullough v. Pierce, 55 Md. 540, 545-546; it is said here that if commissions were allowed upon the whole price at which every sale may be made and reported without regard to the amount realized therefrom, it would be a temptation to trustees to make sales to irre- sponsible bidders at extravagant prices without any reasonable expec- tation that the terms of sale would be complied with. The first pur- chaser remains liable for the loss on the resale, and if the trustee col- lects the same, he would be entitled to commissions on the sum so col- lected; quoted in Melvin v. Aldridge, 81 Md. 650, 659. Compare Farmers' Bank v. Martin, 7 Md. 342, 345; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 334, 342; Mealey v. Page, 41 Md. 172, 185; Gordon v. Mat- thews, 30 Md. 235, 245. 2 Widener v. Fay, 51 Md. 273, 275; in this case an allowance was made to the estate of a deceased trustee named in a deed to secure a debt; the trustee having rendered services, although no sale was made. The amount of allowance was treated as a matter in the dis- cretion of the court, although the deed specified a rate of compensa- tion. See instances in Gibson's case, 1 Bl. 138, 149-150; Bentley v. Shreve, 2 Md. Ch. 215, 218. 3 Gibson's case, 1 Bl. 138, 149; Andrews v. Scotton, 2 Bl. 629, 672. ^Gibson's case, 1 Bl. 138, 149-150; Williamson v. Wilson, 1 Bl. 418, 433, 439- ^Jenkins v. Whyte, 62 Md. 427, 434, 437; the trustees here were ap- pointed by decree. §561 Commissions. 662 which is meant expenditures during the existence of the trust, as distinguished from payments over to the cestuis que trust? The fact that a trustee receives compensation as executor or administrator, or in any other capacity, will not, of itself, de- prive him of his right to commissions for services rendered, or responsibilities incurred, as trustee where the duties of the offi- ces are separate. 7 In a case where the fund in court was not 6 Whyte v. Dimmock, 55 Md. 452, 454-456; Jenkins v. Whyte, 62 Md. 427. 434, 436-437. Code, art. 16, sec. 102, provides that the court may allow to the trustee, committee or other person charged with the care of the per- son or estate of any non compos mentis, any sum not exceeding ten per cent, on the income and expenditures. 'Mitchell v. Holmes, 1 Md. Ch. 287, 289-290; in this case a testator appointed the same person executor and trustee, and fixed his com- pensation as trustee at ten per cent, upon the property. The court held that he was entitled to commissions both as executor and trustee. "The percentage is to be paid him on the property which may come into his hands as trustee; an office entirely distinct from that of ex- ecutor, and the compensation which he may have been allowed by the orphans' court for discharging the duties of executor should have no more influence upon his commission as trustee under this will than if the two offices were filled by different persons." Compare Sanderson v. Pearson, 45 Md. 483, 485-486. In Abell v. Brady, 79 Md. 94, 100, it was held that the executors who were also trustees were entitled to compensation in both capaci- ties under the circumstances of the case; see the facts here. As to commissions to a person acting as administrator pendente lite and as executor, see Renshaw v. Williams, 75 Md. 498, 507-508. A trustee may employ an agent to collect rents, &c, and pay him a commission out of the estate, and not out of the trustee's com- missions; Myers v. Myers, circuit court of Baltimore city; Daily Record, January 24, 1891. Compare Williams v. Mosher, 6 G. 454. In Baltimore city, in trusteeships, where the investment or re- investment of money is required, it is the practice to allow the trustee a commission of two and a-half per cent, upon the fund invested, for making the investment; in the trust estate of P. Hanson Hiss, in the circuit court of Baltimore city, (Daily Record, March 18, 1891), Den- nis, J., said: "It has been the uniform practice of this court, when a trustee is directed to make an investment of trust funds pending a liti- gation, or when he applies for authority to make such investment, to allow him two and one-half per cent, on such investment. The five per cent, commissions allowed him (the trustee) were for the general management and settlement of the estate, and do not include the al- lowance for such special services as the purchase of proper securities for investment." See also the instance in Denmead v. Denmead, 62 663 Commissions and counsel fees. §561-562 sufficient to afford adequate compensation and indemnity to the receivers, it was held that the parties at whose instance they were put upon the property should be required to provide the means of payment. s Counsel fees. §562. Allowances to trustees. — It is a general rule that when a trustee finds it necessary to employ or advise with counsel as to the proper management of the trust estate, he will be allowed, under the head of just allowances, such reasonable fees as he may have paid in properly taking the opinion and Md. 321, 322. In Jenkins v. Whyte, 62 Md. 427, 437, and Whyte v. Dimmock, 55 Md. 452, 454, the rate was five per cent, for making the investments. It is said that a trustee always has a due proportion of interest on his commissions awarded to him by the order confirming the auditor's account; Hammond v. Hammond, 2 Bl. 306, 378-379; Brown v. Wal- lace, 2 Bl. 585, 591. In Goodburn v. Stevens, 1 Md. Ch. 420, 444, it was held that where several sales are made at different times, the commissions of the trustee should be calculated upon each sale separately, and the sales are not to be treated as made at one time. To the same effect see Myers v. Myers, circuit court of Baltimore city, Daily Record, January 24, 1 891. In Barry v. Barry, 1 Md. Ch. 20, 22, and Ridgely v. Gittings, 2 H. & G. 58, 61-62, it was held that a trustee may waive his claim to commis- sions where that claim exists; and he will be held to his agreement to that effect. But the fact that a trustee has not accepted commissions in the past does not oblige him to waive them in the future; Denmead v. Denmead, 62 Md. 321, 324. 8 Tome v. King, 64 Md. 166, 184; see the facts here. In Willson v. Tyson, 61 Md. 575, 583, it is said that in cases of trusteeship under wills, it is the general practice to charge the commis- sions upon the entire income in the hands of the trustee for distribu- tion. Compare Levering v. Riggs, 49 Md. 432, 438, and Willson v. Tyson, 61 Md. 575, 583, as to commissions on specific sums bequeathed to legatees. Under the code of i860, art. 81 (title "Revenue and Taxes,") sec. US, the commissions of trustees and receivers were subject to a tax of ten per cent. ; this tax was omitted from the act of 1874, ch. 483, which repealed and re-enacted this article of the code, and which is now in- corporated into the code of 1888 as art. 81. As to contracts for a division of commissions in case of appoint- ment as trustee, see Folck v. Smith, 13 Md. 85, 90; Hopkins v. Hink- ley, 61 Md. 584, 589; Ohlendorf v. Kanne, 66 Md. 495, 498-499. §562-563 Counsel fees. 664 procuring the direction and assistance of counsel. 1 Similarly, under a deed providing for allowances to the trustee for costs and expenses, is included the expense of employing an at- torney, even without ah express provision to that effect. 2 §563. Allowances to other judicial officers.— A re- ceiver is an officer of the court and subject to its directions and orders, and while, in the discharge of his official duties he is at all times entitled to apply to the court for instruction and advice, he is also permitted to obtain counsel for himself; and counsel fees are considered as within the just allowances that \ iMicKim v. Handy, 4 Md. Ch. 228, 23s ; Laroque v. Candolle, 4 Md. Ch. 347, 348; in the former case it was held that counsel fees paid by the successful party in a contest as to who should be appointed trustee would not be allowed out of the fund. See also Jones v. Stockett, 2 Bl. 409, 417; Neale v. Hagthrop, 3 Bl. ssi, 590; Bentley v. Shreve, 2 Md. Ch. 215, 219-220; Farmers' Bank v. Martin, 7 Md. 342, 34s; Mahoney v. Mackubin, 54 Md. 268, 276-277; Jenkins v. Whyte, 62 Md. 427, 434, 438; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 259. 2 Green v. Putney, 1 Md. Ch. 262, 267; Brady v. Dilley, 27 Md. 570, 582; Cain v. Warford, 33 Md 23, 36. When a trustee is also an attorney and renders legal services in connection with the estate, he is generally entitled to be paid for his professional services as though the two capacities were separate. Thus in Post v. Mackall, 3 Bl. 486, 528-529, an allowance of five per cent, was made to the trustees for all sums collected by them as attorneys by suit at law; stated in Farmers' Bank v. Martin, 7 Md. 342, 345, reversing Farmers' Bank v. Martin, 3 Md. Ch. 224, 225. In Otto v. Robinson, 59 Md., unreported, it Was held that a trustee who by his efforts succeeds in securing an indisputable title to the property he is about to sell, is entitled to a fee for such service in addition to his commissions as trustee. In Jenkins v. Whyte, 62 Md. 427, 438, trustees were allowed fees as attorneys for filing a petition for the sale of certain shares of stock. (In Baltimore city it is usual to allow fees to a trustee who is an attorney, for his necessary professional services, in the same manner as though another attorney had been employed by the trustee; regard being had to some extent, however, in determining the amount of the fees, to the amount of commissions received by him as trustee. — Brewer.) As to fees for conducting proceedings for a re-sale, see Farmers' Bank v. Martin, 7 Md. 342, 345; McCullough V. Pierce, 55 Md. 540, 546; Mealey v. Page, 41 Md. 172, 185. €65 Counsel pees. §563-564 may be made by the court. 1 The fees of counsel employed by a trustee in insolvency, to set aside a fraudulent deed made by the insolvent, are a proper charge against the estate; 2 and in other cases where the assistance of counsel is required in prose- cuting or defending the interests of the creditors. 8 In lunacy proceedings counsel fees for services in conducting the com- mission are properly payable by the committee out of the estate; •so, also, fees for legal advice and services, rendered the com- mittee in the t discharge of his duty in defending and protecting the lunatic's estate, are proper allowances. 4 §564. Allowances out of a common fund. — When compensation is allowed out of a common fund for expenses incurred and services rendered on behalf of the common inter- est, it is upon the principle of representation or agency. Such charges are allowed not simply and alone because services have J Stuart v. Boulware, 133 U. S. 78, 81. In practice it is considered advisable, especially in important ■cases, to obtain an order of court appointing counsel to a receiver; the counsel thus acting under the appointment of the court rather than under that of the receiver. insolvent estate of Leiman, 32 Md. 225, 244. "Nelson v. Pierson, 8 Md. 300, 301; in this case the court below did not think it proper "as a principle, that a trustee should employ coun- sel in all cases, and especially should retain a permanent counsel, whether required absolutely or not"; and the court of appeals said: "We agree that a trustee in insolvency cannot employ a professional adviser and charge his compensation to the estate." 4 Estate of Rachel Colvin, 4 Md. Ch. 126, 128-132; in this case, it was farther held that fees paid to counsel for conducting a controversy as to the date of the commencement of the lunacy were not prope r charges against the fund; nor fees for litigating the question who should be appointed committee; nor fees in a suit in the orphans' court as to who should be appointed administrator of the estate. See also Alex. Ch. Pr. 236; Devilbiss v. Bennett, 70 Md. 554, 560. For instances of counsel fees allowed out of the estate of a lunatic to solicitors representing him unsuccessfully in petitions to regain his freedom, the petitions being resisted by the committee, see ex parte John Nunan, circuit court of Baltimore city, docket 28 A, 269. In an amicable suit for the construction of a will, an executor may be allowed counsel fees for services in the orphans' court, but not for services in the court of appeals, it not being the duty of the executor to appeal; Dorsey v. Dorsey, 10 Md. 471, 477; as to the right to appeal, however, see ante, sec. 357. §564 Counsel fees. 666 been rendered which have been beneficial to the common in- terest, but upon the ground that they were rendered by the au- thority of those having the common interest exercised by the representative, the compensation for which was to be charge- able to the fund protected or recovered. 1 Where parties de- cline to accept the services of attorneys and profess that their interests a're antagonistic, but the attorneys, nevertheless, re- cover a fund by which the parties are actually benefitted, the at- torneys cannot claim to be paid out of the fund in such a man- ner that such parties would be contributing thereto. This rule is upon the principle that one cannot legally claim compensa- tion for voluntary services to another, however beneficial; there must be a contract of employment. 2 a B. & O. R. Co. v. Brown, 79 Md. 442, 447; see the proceedings in this case, by which counsel were appointed by the court to represent a large number of claimants of small amounts. 2 McGraw v. Canton, 74 Md. 554, 557-559; B. & O. R. Co. v. Brown, 79 Md. 442, 446-447; in the first case a testator devised his property to a child as trustee for the benefit of testator's children. After his death, a prior deed was recorded by which he gave to one child, the trustee, his estate absolutely. One of the children filed a proceeding to set aside the deed as fraudulent, and succeeded in his suit, the defendants being the trustee and the other children, with the result that the estate vested in the trustee. Plaintiff's solicitors applied for a fee out of the estate, as their services secured the setting aside of the fraudulent deed and the bringing of the property into the trust estate. It appeared that the solicitors were employed only by the plaintiff, that the other chil- dren, beneficiaries of the trust, did not accept their legal services, and did not desirethe proceedings taken. The court said that the solicitors must look only to their client and not to the trust fund; "we know of no legal principle by which the defendants (the beneficiaries) can be required to contribute to the payment of counsel fees to one whom they did not employ, and whose services they claim were adverse to their interests. * * * One cannot legally claim compensation for voluntary services to another, however beneficial they may have been, nor for incidental benefits and advantages on account of services ren- dered to another." See also the facts in Wilson v. Kelly, 30 S. Ca. 483, cited in this case at page 559. In B. & O. R. Co. v. Brown, 79 Md. 442, in which a large fund was brought into court for distribution, it was held that the counsel petitioning for counsel fees were only entitled to be paid out of the fund realized for their clients, there being no community of interest between such clients and the other parties interested in the fund; see the facts in the case. 667 Counsel fees. §565- §565. Instances of such, allowances. — In creditors' suits where a fund has been realized by the diligence of the plaintiff, the counsel fees are to be paid out of the fund, as a means of making payment pro rata by all the creditors who partake of the benefit of the suit. It would not be just in such a suit, instituted for all the creditors, that one creditor should bear the burden when others have the benefit. 1 In the exten- sive litigations which have arisen upon railroad mortgages, where various parties have intervened for the protection of their rights, and the fund has been subjected to the control of the court and placed in the hands of receivers or trustees, it has been the common practice in both federal and State courts to make just allowances for counsel fees to the trustees or other parties promoting the litigation and securing the due application of the property to the trusts and charges to which it was subject. 2 1 Trustees v. Greenough, 105 U. S. 527, 533-534; B. & O. R. Co. v. Brown, 79 Md. 442, 451; Chew v. Perkins, 81 Md., unreported; re- ported in 31 Atlantic Rep. 507. In Central R. Co. v. Pettus, 113 U. S. 116, 124-127, certain un- secured creditors sued to establish a lien, on behalf of themselves and of all other creditors of the same class who should come in and con- tribute to the expenses of the suit. The suit was successful, and the court allowed all unsecured creditors to prove their claims. Various creditors did so, and pending the reference before the register the de- fendants bought up the claims of the plaintiff and the other creditors who had filed claims. Plaintiff's solicitor then prayed to be allowed compensation in respect to the claims of all the creditors who filed claims other than their clients with whom they had a special contract. It was held that the solicitors were entitled to be paid upon the basis of all the claims thus filed. 2 Trustees v. Greenough, 105 U. S. 527, 536. See instances and discussions in Cowdrey v. Galveston R. Co., 93 U. S. 352, 354-355; Louisville R. Co. v. Wilson, 138 U. S. 501. In Trustees v. Greenough, 105 U. S. 527, 532-533, it is said that where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruc- tion and to restore it to the purposes of the trust, he is entitled to reim- bursement, either out of the fund itself or by proportional contribution from those who accept the benefit of his efforts. In this case bonds were secured by a trust fund which the trustee wasted; a holder of some of the bonds, in good faith filed a bill to secure a due application of the fund, and succeeded in bringing it under the control of the court §565 • Counsel fees. 668 The rule that a party who recovers a fund for the common ben- efit of creditors is entitled to have his costs and expenses paid out of the fund, prevails also in bankruptcy cases. When a petition in bankruptcy results in bringing into court a fund for distribution among creditors, it is proper that counsel fees should be allowed out of the estate. 3 Similarly, in proceed- ings in insolvency, the attorneys of a party, whose suit brings into the hands of the trustee in insolvency a fund for distribu- tion, is entitled to be paid out of the fund. 4 for the common benefit of the bondholders. It was held that he was entitled to be paid from the fund, before distribution, his counsel fees and necessary expenses of the litigation as betwen solicitor and client. But a claim for his private expenses, such as traveling fares and hotel bills, or for his own time or personal services, could not be allowed. 3 Trustees v. Greenough, 105 U. S. 527, 534. insolvent estate of Leiman, 32 Md. 225, 244; in this case, a trustee • in insolvency refused to bring suit to set aside a fraudulent deed made by the insolvent, whereupon an individual creditor did so, and set aside the deed. The property was then sold by the trustee in insolvency, and the attorney who conducted the suit for the creditor was held en- titled to be paid out of the fund arising from the sale. In Davis v. Gemmell, 73 Md. 530, 539-540, 565-566, it was held in substance that cpunsel employed by a majority stockholder in a corpo- ration to prosecute a claim upon an agreed percentage of the amount recovered, the counsel supposing that the cause of action belonged to the client individually, but which was afterwards determined to be the property of the corporation, should be allowed their fees out of the funds brought into court by their labors, as against the minority stock- holders who stood by and saw the work done, and neither interfered nor objected. As said in McGraw v. Canton, 74 Md. 554, 558, the decision rested upon the principle of an equitable assignment of the fund; sim- ilarly stated in Chew v.. Perkins, 81 Md., unreported; reported in 31 Atlantic Rep. 507. In the same case of Davis v. Gemmell, 73 Md. 530, 540, stated' in B. & O. R. Co. v. Brown, 79 Md. 442, 451, it was held that counsel of the minority stockholders who succeeded in showing that the claim and fund belonged in fact not to the majority stockholder individually, but to the corporation, were also entitled to be paid for their services out of the fund thus realized for the corporation. In Davis v. Gemmell,, 70 Md. 356, 379, it was said that the pay- ment of counsel fees out of a fund was a matter to be considered upon final hearing when all the creditors have had an opportunity of coming in and being heard; quoted in Davis v. Gemmell, 73 Md. 530, 559. 669 Counsel fees. §566 §566. Allowances in divorce cases. — In suits for di- vorce, whether brought by the husband or the wife, and for whatever cause, the wife, living apart from the husband and without means sufficient for the maintenance of her suit, is perhaps always allowed a sum of money for her counsel fees, payable by the husband, in order to enable her to prosecute or defend the suit. The allowance is almost a matter of course, without any inquiry by the court into the merits of the suit. The court, however, exercises a sound discretion as to when and to what extent the allowance should be granted. 1 Thus if the lack of means of the wife be denied, the court will determine the question before allowing fees. 2 If the wife be living with the husband, she may still be allowed counsel fees. 3 If the hus- band dies pending the suit, the court cannot require his ex- ecutor to become a party to the suit to answer a demand for counsel fees for services rendered the wife during the lifetime of the husband, nor pass an order requiring such executor to pay such fees; 4 nor can the wife sue the executor for fees in a separate suit, but the counsel may do so if it appears that the suit was reasonably and justifiably instituted. 5 When a hus- band sues for divorce and his bill is dismissed and he appeals, 1 McCurley v. McCurley, 60 Md. 185, 188-189; Daigerv. Daiger, 2 Md. Ch. 33s, 337-338; Coles v. Coles, 2 Md. Ch. 341, 346-347; Tayman v. Tayman, 2 Md. Ch. 393, 397; Ricketts v. Ricketts, 4 G. 105, no; Mc- Curley v. Stockbridge, 62 Md. 422, 426; Chappell v. Chappell, 82 Md. 647, (reported in full in 33 Atl. Rep. 650) ; and see in general Nelson on Divorce and Separation, sees. 875-882. An order passed upon the husband and disregarded by him may be enforced by the court granting it by fieri facias, and by attachment for contempt; McCurley v. McCurley, 60 Md. 185, 189. In Chappell v. Chappell, 82 Md. 647, (reported in full in 33 Atl. Rep. 650), the court made it a condition of an order permitting a hus- band to dismiss his bill for divorce, that he should pay the wife's costs and counsel fees. 2 Coles v. Coles, 2 Md. Ch. 341, 347-350; compare Chappell v. Chap- pell, 82 Md. 647, (reported in full in 33 Atl. Rep. 650). 3 Tayman v. Tayman, 2 Md. Ch. 393, 397-398. ^McCurley v. McCurley, 60 Md. 185, 189-191 ; in Jamison v. Jamison, 4 Md. Ch. 289, 298-299, the allowance was by consent. 5 McCurley v. Stockbridge, 62 Md. 422, 423-426. In regard, to legal services in such cases, as necessaries to the wife, see McCurley v. McCurley, 60 Md. 185, 191; McCurley v. Stock- bridge, 62 Md. 422, 424-425- £566 Counsel fees. 670 the court may allow the wife counsel fees incident to the appeal, as the court still has jurisdiction of the parties. 6 The applica- tion of the wife for an allowance for counsel fees presupposes, and is founded on the allegation in her petition, that she has not the pecuniary means of carrying on the suit; 7 if she has in- come of her own sufficient for the purpose, there would be no need of an allowance to her. 8 But it is proper that the wife's means of defence should be equal to the means of prosecution possessed by the husband; and in an expensive action the hus- band may be compelled to pay the fees, although the wife has income. 9 The application for the allowance of counsel fees should not be made in the name of the counsel, but by the wife in her own name, 10 and may be made upon the institution of the suit or at any time thereafter. 11 The amount allowed de- pends largely upon the circumstances of the case and the pe- cuniary resources of the parties. 12 °Rohrback v. Rohrback, 75 Md. 317, 319; an order of the court below refusing an allowance was held appealable, being a determination of her rights in the premises. 7 Daiger v. Daiger, 2 Md. Ch. 335, 337; Coles v. Coles, 2 Md. Ch. 341, .347- s Coles v. Coles, 2 Md. Ch. 341, 347-350; see the facts in Tayman v. Tayman, 2 Md. Ch. 393, 398. 9 Chappell v. Chappell, 82 Md. 647, (reported in full in 33 Atl. Rep. 650); in this case the court examined into the comparative means of the parties, and held that as the husband was possessed of much larger means than the wife, he should pay the fees. (In Baltimore city when adultery is charged against a wife, and she denies the charge under oath, and prays for a counsel fee and ali- mony, which the court orders to be paid, a petition will lie by the wife to suspend further proceedings against her until the order of court directing the payment is complied with; so held in Mitchell v. Mitchell, circuit court No. 2, docket 2, fol. 52. — Brewer.) 10 Tayman v. Tayman, 2 Md. Ch. 393, 398. "If the wife be plaintiff, the application may be made either in the bill or by petition thereafter; if she be defendant, she may apply by pe- tition prior to an answer, or in the answer, or by petition thereafter. 12 McCurley v. Stockbridge, 62 Md. 422, 426. (In Baltimore city if the husband denies his ability to pay the counsel fee and alimony, the court, upon petition, may decide the mat- ter in a summary manner; if the husband is employed, the employer may be summoned and examined as to the wages or salary, and pay- ment may be arranged by requiring an order on the 'employer for the sums required; if the husband is in business, or has an income, the court may examine him, if the matter can be briefly determined; or -may direct testimony to be taken before an examiner. — Brewer.) €71 Counsel fees. §567 §567. Allowances in the orphans' court.— The or- phans' court, having only a special limited jurisdiction, can ex- ercise no authority not expressly given by law; 1 therefore, it can only direct the allowance of counsel fees out of an estate in cases where the statute authorizes such allowance. The code provides for allowances "for cost and extraordinary expenses (not personal) which the court may think proper to allow, laid out in the recovery or security of any part of the estate." 2 Under this provision, counsel fees out of the estate are allowed in a number of cases. 3 1 Code, art. 93, sec. 256. 2 Code, art. 93, sec. 5. 3 It is well settled that when a caveat is filed after a will has been ad- mitted to probate and letters testamentary have been granted, the ex- ecutor is entitled to an allowance for counsel fees, because it is his duty to defend the will, and this allowance is made regardless of the result of the suit; Gorton v. Perkins, 63 Md. 589, 590; Dalrymple v. Gamble, 68 Md. 156, 165; ex parte Young, 8 G. 285, 286; Compton v. Barnes, 4 G. 55, 57; Glass v. Ramsay, 9 G. 456, 459; Townshend v. Brooke, 9 G. 90, 91. But a collector pendente lite cannot be directed to pay money to persons named as executors in a will, for fees to counsel em- ployed to resist a caveat filed before probate; Townshend v. Brooke, 9 G. 90, 91; compare Dalrymple v. Gamble, 68 Md. 156, 165; query, whether an executor is entitled to an allowance for counsel fees in re- sisting a caveat to a will before the will is probated; Gorton v. Perkins, 63 Md. 589, 590. Where the services are rendered not to the executor but to a devisee interested in supporting the will, payment of counsel fees cannot be made out of the estate; Gorton v. Perkins, 63 Md. 589, 592. An administrator is allowed his counsel fees out of the estate when his right to a controverted administration is successfully main- tained; ex parte Young, 8 G. 285, 286-287; estate of Rachel Colvin, 4 Md. Ch. 126, 129; Dalrymple v. Gamble, 68 Md. 156, 163. After letters have been granted, fees may be allowed for prose- cuting or defending claims in the discharge of the duties of the admin- istrator; ex parte Young, 8 G. 285, 287; Carson v. Phelps, 40 Md. 73, 101. Allowances for fees are not made for bringing unnecessary suits or suits contrary to the wishes and detrimental to the interests of the parties concerned; Dorsey v. Dorsey, 10 Md. 471, 476-477; nor for fees in conducting a controversy in the orphans' court, growing out of a former administration account, and in attempting to maintain claims against the estate, in both of which the executor was unsuccessful; Billingslea v. Henry, 20 Md. 282, 287; nor can persons interested in an estate, for example, as legatees, obtain an allowance from the estate for §568 Counsel fees. 672 §568. Miscellaneous.— When an allowance to a party is proper on account of solicitor's fees, the application for the al- lowance may be made by the solicitor, without any application by the client, and the allowance would then be made directly to the solicitor; 1 or the application may be made by the person employing the counsel, in which case the allowance would be made to the client for the use of the solicitor. 2 Agreements counsel fees, for resisting a claim made against the estate by the exec- utor; Bell v. Funk, 75 Md. 368, 372. See also, in general, Plater v. Groome, sMd. 96, 98; Edelen v. Edelen, 11 Md. 415, 422; Browne v. Preston, 38 Md. 373, 380; Dalrym- ple v. Gamble, 68 Md. 156, 163-166; Mealey v. Page, 41 Md. 172, 185. iCentral R. Co. v. Pettus, 113 U. S. 116, 124-125. In Davis v. Gemmell, 73 Md. 530, 565, Miller, J., said: "The claims for these allowances are not made by petitions filed by their client, according to the usual practice, but by petitions filed by them- selves in their own names." In Stuart v. Boulware, 133 U. S. 78, 81, it \s said that if it were proper for the receiver to employ counsel, the allowance of reasonable counsel fees is to the receiver and not to the counsel, and that such fees would constitute only one of the items in the receiver's account; that the counsel had no cause of action, but the allowance was in legal effect to the receiver to enable him to make compensation for professional services. See instances of application by the counsel in Dorsey v. Dorsey, 10 Md. 471, 473-474; Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 266; Johnson v. Hoover, 75 Md. 486, 490. 2 This practice is not so usual, in Baltimore city, as the other; except in divorce cases, where the application for counsel fees is made by the wife in her own name; see ante, sec. 566. In applications for counsel fees by solicitors, the applicant files his petition under oath, stating his employment and the nature and' character of the services rendered, and praying that a sum may be al- lowed him. Appended to the petition should be a certificate of at least two members of the bar, stating that in their opinion, upon the facts al- leged, a fee of a certain amount would be proper. The court may then pass an order allowing the fee "subject to the usual exceptions," and the auditor thereupon allows it in his account, where it may be ob- jected to by parties in interest; see Johnson v. Hoover, 75 Md. 486, 490. (When infants or lunatics are interested in a proceeding, and the court appoints a solicitor to appear and defend for them, a fee will be allowed; but no fee is allowed to the solicitor of a guardian ad litem. — Brewer.) See equity rule 9; code, art. 16, sec. 124. Code, art. 16, sec. 106, provides for the payment of a solicitor as- signed by the court to a non-resident non compos mentis. Code, art. 16, sec. 158, provides that in deciding on exceptions to 673 Counsel pees. §568 between solicitors and suitors relative to professional services must be enforced like other contracts, and cannot be intro- duced into, and settled as a part of, a case in equity. 3 answers, the court may award the costs of the exception, and the order thereon, to the party prevailing, including a fee to the solicitor or at- torney. 3 Strike's case, I Bl. 57, 63, 95, 98; in this case, as stated and approved in Marshall v. Cooper, 43 Md. 46, 62, a petition was filed by solicitors, claiming to be allowed out of a fund in court, for professional services rendered in the cause; the chancellor dismissed the petition, saying that he knew of no practice of his court, or of any analogous proceed- ing of the English court, which would authorize the introduction of claims of this sort into a cause depending or about to be disposed of; and added "the chancellor must in all cases leave the contracts between solicitors and suitors relative to professional services, to be settled and decided as all other contracts." In McGraw v. Canton, 74 Md. 554, 558, it was said, after quoting the above, that what was there said was the universal practice in Maryland; compare the facts in Laroque v. Candolle, 4 Md. Ch. 347, 348; Davis v. Gemmell, 73 Md. 530, 564. In Chew v. Perkins, 81 Md., unreported; reported in 31 Atlantic Rep. 507; it is said: "It is beyond the power of a court of equity to de- cide a controversy between counsel and client depending on a contract of a purely legal character. It must be left to a court of law." Com- pare Keene v. Gaehle, 56 Md. 343, 349-350. See also Wingert v. Gordon, 66 Md. 106, 108-109, l:t 3> in which a controversy, between solicitor and client, as to fees, was considered in a case in which the client was entitled to receive a portion of a fund in court. In Maus v. McKellip, 38 Md. 231, 238, a mortgage provided for the payment of all counsel fees andcosts which the mortgagee might incur in collecting the mortgage debt. It was held that a commission of five per cent, paid to his attorney for collecting the mortgage debt came within the terms of the mortgage, but that a fee paid counsel for resisting an application of the assignees in bankruptcy of the mortgagor to sell the mortgaged property, did not come within the terms. See also Gaither v. Tolson, 84 Md. — . As to allowances for counsel fees to stakeholders, see Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253, 259; Elliott v. Bryan, 64 Md. 368, 372. (In cases of interpleader in Baltimore city, a practice prevailed at one time of allowing a fee to the plaintiff's solicitor out of the fund brought into court, as compensation for instituting the proceedings, at once upon the filing of the bill, without notice to the defendants; the practice now, however, is that a fee will not be allowed out of the fund until the court finds from the proceedings that the case is a proper one for a bill of interpleader. As soon as this fact appears, the court may allow a fee, to be paid to the solicitor by the clerk out of the fund brought into court. — Brewer.) As a general rule appellate courts are not disposed to overrule 43 §569 Counsel fees. 674 §569. Appearance fees. — By statute a solicitor is en- titled to an appearance fee of ten dollars for prosecuting or de- fending any cause, plaint or action in any of the equity courts of the State. 1 . As in cases in courts of law, 2 the right to an ap- pearance fee depends upon a contract of employment, without which the solicitor can have no claim. The proceeding must be a suit in order to justify the fee; if there is no suit, there can the decision of an inferior court upon a question as to the proper amount to be allowed for counsel fees; the action of the lower court is treated as presumptively correct, since it has far better means of knowing what is just and reasonable than an appellate court can have; Trustees v. Greenough, 105 U. S. 527, 537; Stuart v. Boulware, 133 U. S. 78, 82; Fowler v. Equitable Co., 141 U. S. 411, 415; compare Jenkins v. Whyte, 62 Md. 427, 438; and see Davis v. Gemmell, 73 Md. 530, 566, per Miller, J. But appellate courts can- not escape the unpleasant task of passing upon the value of services of members of the bar, and frequently reverse the rulings of the lower courts in fixing the amount of fees; as in Davis v. Gemmell, 73 Md. 530, 540; B. & O. R. Co. v. Brown, 79 Md. 442, 453; (see the record and briefs in this case). See also on the general subject of counsel fees, Negroes Bell, &c, v. Jones, 10 Md. 322; Cain v. Warford, 33 Md. 23, 35-36; Wood v. State, 66 Md. 61, 68-69, and cases cited; Merryman v. Euler, 59 Md. 588, 590. In Mahoney v. Mackubin, 54 Md. 268, 276-277, a mortgage was made to a trustee who was also an attorney; after certain exceptions to the ratification of the foreclosure sale had been overruled, the attorney was allowed out of the proceeds of sale a certain sum for professional services rendered in connection with the ratification of the sale made under the mortgage. This claim should not be allowed against the pro- ceeds of sale to the prejudice of the mortgagor, but should be prose- cuted against the trust fund which as trustee he invested in the mort- gage. 1 Code, art. 36, sec. 10. In Baltimore city it is the practice to allow the deputy clerk one dollar out of the appearance fee, in theory as a commission for collect- ing the fee. (In Baltimore city where two or more solicitors appear for the same plaintiff or defendant, the appearance fee is divided equally be- tween them. In interpleader cases three appearance fees are taxed as costs; one to the solicitor filing the bill of interpleader, and one each to the respective solicitors of the plaintiff and defendant in the case between the claimants. — Brewer.) 2 Neighbors v. Maulsby, 41 Md. 478, 481. 675 Counsel pees. §569 be no appearance fee. 3 There is no right to charge such fees on exceptions to auditor's accounts, or other merely collateral proceedings upon petition. 4 3 Ruley v. Hyland, 77 Md. 487, 488; in this case it was held that a pro- ceeding to sell mortgaged real estate under a power of sale contained in the mortgage was not a suit, and that an appearance fee to the plain- tiff's solicitor was not allowable. (In Baltimore city, by the direction of the supreme bench, no ap- pearance fee is allowed to the defendant's solicitor in mortgage fore- closure cases, unless there is a surplus payable to the mortgagor. — Brewer.) 4 Dodge v. Stanhope, 55 Md. 113, 118; and see McCullough v. Pierce, 55 Md. 540, 544, 546. CHAPTER XXIX. INJUNCTIONS. 570. Definition and classifica- tion. 571. Jurisdiction; remedy at law. 572. Mandatory injunctions. 573. Ancillary injunctions. 574. Discretion of the court. 575. Recent statutory provis- ions. Interlocutory injunctions. 576- Nature of interlocutory 584. Prayer for injunction. injunctions. S85. Affidavit to the bill. 577- When granted. 586. Order for injunction. 578. When answer must be 587. Injunction bond; discre- considered. tion of court. 579- Petition in pending 588. Other matters regarding cause. bonds. 580. Statenunt of the case in 589. Writ of injunction. the bill. 590. Amendment of bill. 581. The same subject contin- 591. Proceedings by the de- ued. fendant. 582. Exhibits with the bill. 592. Appeal. S83. Instances of the rule as to exhibits. Motion to dissolve 593- 594- 595. 596. 597- 598. 599- Nature of motion; when made. Effect of decision; dis- missal of bill. Answers of all defend- ants should be first filed. Answer under oath. Answer as evidence. How the motion may be heard. Hearing on bill and an- swer. 600. 601. 602. 603. 604. 605. Insufficiency of answer; continuing the "injunc- tion. Exceptions to the an- swer. Averments of the bill and answer. Hearing upon bill, an- swer and proofs. Effect of the answer. Miscellaneous. 676 677 Injunctions. §570 Other proceedings. 606. When injunction is not 609. Staying operation of in- granted ex parte. junction by appeal. 607. Final hearing on bill and 610. Violation of injunction. answer. 611. Miscellaneous. 608. Final hearing on bill, an- swer and proof. §570. Definition and classification. — An injunction 1 is generally denned, in substance, as a judicial process, operat- ing in personam, by which a party Js required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ. 2 Of a similar nature are various re- strictive or restraining orders, passed in the progress of a cause, which, although not technically injunctions, operate as such. 3 With respect to the duty imposed upon the defendant, injunctions are classified as preventive and mandatory. A preventive, or prohibitory, injunction prevents or restrains the defendant from doing a particular act, and thereby preserves the existing status of the parties ; a mandatory, (affirmative or res- torative,) injunction requires the defendant to do a particular thing.* With reference to their duration, injunctions are classi- fied as interlocutory 5 and final. 6 An interlocutory injunction 1 This chapter presents, in the main, only the procedure of injunc- tion suits; whereas the chapters on "receivers" and "specific perform- ance" embrace the entire Maryland law in relation to those subjects. In reference to injunctions as a remedy, see Brantly's note to Salmon v. Clagett, 3 Bl. 125, in which the principal Maryland cases are collected; see also note to Little v. Price, 1 Md. Ch. 182. For the subject of in- junction in connection with suits for the appointment of receivers, see post, sec. 651; and in suits for specific performance, see post, sec. 655. 2 See in general Beach on Injunctions, sec. 1; High on Injunctions, sec. 1; Kerr on Injunctions, 9; Story, Eq. Jur. sec. 861; Md. Savings Inst. v. Schroeder, 8 G. & J. 93, 106. instances are in Bonaparte v. Balto. &c, R. Co., 75 Md. 340, 344; Burch v. Scott, 1 Bl. 112, 118, 123, 125; Deakin's case, 2 Bl. 398, 402, 404. Provision is made for injunctions in actions at law, by code, art. 75, sees. 116-128; see Chesapeake Co. v. Mackenzie, 74 Md. 36, 43-45; and for orders in the nature of injunctions in insolvency cases, by code, art. 47, sec. 23; see Paul v. Locust Point Co., 70 Md. 288, 293. "Beach on Injunctions, sec. 97; High on Injunctions, sec. 2. As to mandatory injunctions, see post, sec. 572. 5 Other terms are preliminary, provisional, temporary, ad interim, pendente lite. As to these injunctions, see post, sec. 576. 6 Other terms are perpetual.-permanent. §570-571 Injunctions. 678 is one which is to continue in force until a specified .period, or until the further order of the court; it is provisional in its nature and does not finally conclude the rights of the parties. 7 A final injunction is one which is made after a hearing of a case on its merits, and usually forms part of a final decree; it is in fact a decree whereby the defendant is perpetually restrained from doing, or is finally commanded to do, a particular thing. 8 An injunction may also be considered with respect to whether it is the principal relief sought by the bill, or whether it is in aid of some other and principal relief; in the latter case it is termed an ancillary or auxiliary injunction. 9 §571. Jurisdiction; remedy at law. — The discus- sion of the cases in which a court of equity has jurisdiction to grant relief by injunction is beyond the scope of this volume. The general principle that, independently of statute, no relief can be had in equity when there is a plain, adequate and com- plete remedy at law, applies with full force to equitable relief by injunction, and is illustrated by a great number and variety of cases. 1 The general rule as to the absence of jurisdiction when there is remedy at law must now, however, be taken sub- ject to the qualification imposed by a recent statutory provis- ion 2 as follows; "no court shall refuse to issue a mandamus or injunction on the mere ground that the party asking for, the same has an adequate remedy in damages, unless the party against whom the same is asked shall -show to the court's satis- faction that he has property from which the damages can be made, or shall give a bond in a penalty to be fixed by the court, and with a surety or sureties approved by the court, to answer all damages and costs that he may be adjudged by any court of 7 Beach on Injunctions, sec. 109; High on Injunctions, sec. 3; Kerr on Injunctions, 9-10. 8 Beach on Injunctions, sec. 107; High on Injunctions, sec. 3; Kerr on Injunctions, 9-10. "See post, sec. 573. iSee, for example, Whalen v. Delashmutt, 59 Md. 250, 253-254, and cases cited; Banks v. Busey, 34 Md. 437, 439-440, and cases cited; C. & P. R. Co. v. Pa. R. Co., 57 Md. 267, 271-276, and cases cited; and, in general, note to Salmon v. Clagett, 3 Bl. 125, (Brantly's edition). 2 Code, art. 16, sec. 69; act of 1888, ch. 260. 679 Injunctions. §571-572 competent jurisdiction to pay to the party asking such man- damus or injunction by reason of his not doing the act or acts sought to be commanded, or by reason of his doing the act or acts sought to be enjoined, as the case may be." §572. Mandatory injunctions. — The authority of the court to issue a mandatory injunction upon an ex parte ap- plication, without notice to the defendant, has not, independent- ly of statute, been fully established in Maryland. 1 But in some cases injunctions have been issued, before a hearing, whose necessary effect was to order a thing to be done or to be undone, although not expressed in terms to that effect ; the form of the order being in the negative, restraining a defendant from per- mitting a thing to be left undone or from refusing to do a cer- tain thing. The effect of such orders, however, is in reality to compel the defendant to do the thing specified. 2 Upon final hearing, or thereafter in execution of its order, the court a Thus in Bosley v. Susquehanna Canal, 3 Bl. 63, 65-66, chancellor Bland said that he had met with but one case among the records of the court of chancery in which a defendant had, by an injunction of this kind, been ordered to do or to undo anything; and that he was not aware of any instance where the court had by an original writ caused a nuisance to be abated or removed. In Norwood v. Norwood, 2 Bl. 471, 473, note case, chancellor Hanson said that an injunction granted on filing a bill, and before hear- ing the defendant, ought not to go further than to prohibit the defend- ant from doing a certain thing, unless in the case of a right established by record. In Washington University v. Green, 1 Md. Ch. 97, 101-102, the chancellor concurred "in the principle that the process, unless issued after the decree, when it becomes judicial, can only be used for the pur- pose of prevention and protection, and not for the purpose of com- manding the defendant to undo anything he had previously done." See also Cape Sable Co's. case, 3 Bl. 606, 636; Murdock's case, 2 Bl. 461, 470-471. 2 Thus*m Norwood v. Norwood, 2 Bl. 471, 473, note case, such an in- junction was issued by chancellor Hanson, upon the authority of a precedent, against his own opinion. In Murdock's case, 2 Bl. 461, 470-471, several instances of this character are stated; these are referred to in Washington University v. Green, 1 Md. Ch. 97, 101. In Carlisle v. Stevenson, 3 Md. Ch. 499, 502-504, the order com- manded the defendant "no longer to permit to be and remain out of re- pair," the banks of a race conducting water through the farms of the §572-573 Injunctions. 680 has directed the issue of a mandatory injunction, 3 although in some cases the order has been expressed in a negative form. 4 By the present statutory provisions the authority of the court in reference to mandatory injunctions has been established and enlarged. It is declared that the court may at any stage of a cause or matter, order the issue of a mandate, directing and commanding any party to do any act named in the mandate. 5 §573. Ancillary injunctions. — When an interlocutory injunction is ancillary only, and not the main object of the bill, it may be made final or may be dissolved, according to the result of the suit in respect to the relief to which it is an- cillary. If the main purpose of the bill be of such a character as to be beyond the equitable jurisdiction of the court, an ancil- lary injunction cannot be allowed. 1 Thus where the object of a suit is to obtain a specific performance of a contract, and the writ of injunction is asked for as ancillary thereto, in order to protect the property during the controversy, or for other purposes, the injunction cannot be granted unless the case presented by the bill would authorize the enforcement of the plaintiff. The court said that it had jurisdiction to compel a defendant by means of an injunction specially worded, to do a substantive act, and this whether the injunction be merely auxiliary to the relief prayed by the bill, or the ultimate object of the suit. See also County Comms. v. School Comms., 77 Md. 283, 291. 3 In Bosley v. Susquehanna Canal, 3 Bl. 63, 66, it was said that where acts have been done in violation of an injunction, the court will order them to be undone or the matter restored. In Lamborn v. Covington, 2 Md. Ch. 409, 412, it was said that in a case of a private nuisance the court, after hearing the parties, would be authorized not only to interpose preventively, but to order the nuis- ance to be abated; compare Williamson v. Carnan, 1 G. & J. 184, 198, per Bland, Ch. See also Washington University v. Green, 1 Md. Ch. 97, 101-102; Murdock's case. 2 Bl. 461, 487-488; Clayton v. Shoemaker, 67 1V[d. 216, 218. As to mandatory (in effect) injunctions to enforce the delivery of the possession of lands, see ante, sec. 528, and note 4; sec. 533, note 11; code, art. 16, sec. 168. 4 As in County Comms. v. School Comms., 77 Md. 283, 291. 5 Code, art. 16, sec. 177; stated in County Comms. v. School Comms., '77 Md. 283, 291-292; quoted in full, post, sec. 575. iWagoner v. Wagoner, 77 Md. 189, 195; see also Tartar v. Gibbs, 24 Md. 323, 335. 681 Injunctions. §573-574 contract. 2 The principal cases, perhaps, in which ancillary in- junctions are granted are in. suits for specific performance, 3 for the appointment of a receiver, 4 in interpleader suits, 5 and proceedings to vacate fraudulent conveyances. 6 Whether or not the injunction is ancillary is material upon the question whether the bill should be dismissed, or retained for further proceedings, when a motion to dissolve the injunction is granted. 7 §574. Discretion of the court. — The exercise of the power to grant injunctions — characterized as high and extraor- dinary 1 — is attended with no small danger, both from its sum- mary nature and its liability to abuse. There is no power, the exercise of which requires greater caution, deliberation and sound discretion, or is more dangerous in a doubtful case, than the power to issue an injunction. 2 It has been repeatedly held that the granting or refusing of a writ of injunction is a matter resting in the sound discretion of the court. 3 It is not a matter 2 Geiger v. Green, 4 G. 472, 477; Allen v. Burke, 2 Md. Ch. 534, 537; Gelston v. Sigmund, 27 Md. 334, 343; Spear v. Orendorf, 26 Md. 37, 43; Canton Co. v. Northern Central R. Co., 21 Md. 383, 399. Compare Gottschalk v. Stein, 69 Md. 51, 54; Equitable Gas Co. v. Balto. Coal Co., 63 Md. 285, 300; Gelston v. Frazier, 26 Md. 329, 343, 346-347. 3 See post, chapter XXXI. 4 See post, sec. 651. 6 See post, chapter XXXII; as in Barth v. Rosenfeld, 36 Md. 604, 609. 6 As in Hyde v. Ellery, 18 Md. 496, 501. 7 See post, sec. 594. 'Union Bank v. Poultney, 8 G. & J. 324, 332; Nusbaum v. Stein, 12 Md. 315, 318; Gardner v. Jenkins, 14 Md. 58, 61; Wagoner v. Wag- oner, tj Md. 189, 195; and other cases. 2 Nusbaum v. Stein, 12 Md. 315, 318. In Binney's case, 2 Bl. 99, 113, the chancellor said that bills for injunctions commonly asked relief under some pressing emergency, admitting of little or no delay; and that if there appeared to be strong .and plausible reason to believe that the plaintiff had a just claim to re- lief, he always deemed it best to grant the injunction, because for the purpose of obtaining an injunction it is sufficient if the case be im- portant and doubtful; and at the same time the defendants were given an opportunity of having its propriety re-considered as soon as pos- sible. 3 Nusbaum v. Stein, 12 Md. 315, 318; Shoemaker v. Bank, 31 Md. 396, 398; Welde v. Scotten, 59 Md. 72, 76; McCreery v. Sutherland, 23 Md. §574 Injunctions. 682 ex debito justitiw, as the application is addressed to the sound conscience of the court, acting upon all the circumstances be- longing to each particular case. 4 It ought not to be granted where it would operate oppressively or unjustly. 6 Although a matter of discretion, however, the action of the court may be ' the subject of appeal. 6 An injunction will not be awarded in doubtful or new cases, not coming within well-established prin- ciples of equity. 7 But the absence of precedent, though not to be overlooked entirely, does not of itself determine questions of 471, 480; Cherry v. Stein, I Md. I, 28. Compare Garrett v. Lake Ro- land Co., 79 Md. 277, 297, per Bryan, J. Although it is held that the application for an injunction is ad- dressed to the discretion of the court, yet expressions in the decisions seem to indicate that in a proper case the plaintiff has a right to an in- junction. See the expressions in Roman v. Strauss, 10 Md. 89, 97-98; Spear v. Orendorf, 26 Md. 37, 45 ; Martin v. Jewell, 37 Md. 530, 536. In Goodman v. Jedidjah Lodge, 67 Md. 117, 121, it was said that the bill "made a case which was unquestionably within the jurisdiction of a court of equity, and the judge, according to the usual practice in such cases, was authorized, if not bound, to grant a preliminary injunction." See also Beach, Eq. Pr. sees. 756-757. The plaintiff has a right to de- mand a decision on his bill for injunction; Steigerwald v. Winans, 17 Md. 62, 66. Compare also post, sec. 656, as to discretion. 4 Reddall v. Bryan, 14 Md. 444, 476; State v. Jarrett, 17 Md. 309, 330; Canton Co. v. Northern Central R. Co., 21 Md. 383, 398; McCreery v. Sutherland, 23 Md. 471, 480; Suit v. Creswell, 45 Md. 529, 530; Kelly v. Mayor, &c, 53 Md. 134, 139; Burton v. Marshall, 4 G. 487, 490. A conspicuous instance of the exercise of the discretion of the court is that it requires a plaintiff, seeking relief by injunction against an execution at law, to do equity by paying into court such amount as he shows himself under obligation to pay; Gardner v. Jenkins, 14 Md. 58, 62J Fowler v. Lee, 10 G. & J. 358, 364. And whenever an injunction is granted on the ground that the defendant at law is entitled to a credit, for a sum less than the whole amount of the judgment, it is with the proviso that the plaintiff at law may proceed by execution to collect the undisputed balance; Hodges v. Planters' Bank, 7 G. & J. 306, 311; Flickinger v. Hull, 5 G. 60, 76; Willis v. Jones, 57 Md. 362, 364-365. Compare the strict statutory provisions as to injunctions to restrain sales under powers of sale in mortgages; code, art. 66, sees. 16-18. See also Md. Savings Inst. v. Schroeder, 8 G. & J. 93, 107-110; Powell v. Hopkins, 38 Md. 1, 13; Neurath v. Hecht, 62 Md. 221, 224; ante, sec. 473. 5 Spencer v. Falls Road, 70 Md. 136, 138-139. "Code, art. 5, sees. 25, 29; ante, sees. 317, 326; post, sees. 592, 606. 7 Hardesty v. Taft, 23 Md. 512, 530; compare Amelung v. Seekamp, 9 G. & J. 468, 472. 683 Injunctions. §574-575 jurisdiction. 6 The power to grant injunctions must be exer- cised with the greatest caution, and applied only in very clear cases. 10 §575. Recent statutory provisions. — The authority of the court in regard to injunctions has been enlarged by the provisions of an act passed in 1886, 1 and incorporated into the code. 2 The principal provision is that "the court may at any stage 3 of a cause or matter,* on the application of any party thereto, or party in interest, 5 by motion 6 or petition, 7 or of its own motion, order the issue of a mandate (affirmative injunc- tion) 8 or injunction, directing and commanding any party to such cause or matter, or any party properly brought before it 9 ' under the existing practice, to do, or abstain from doing, any act or acts, whether conjointly or in the alternative, whether in the nature of specific performance 10 or otherwise named in such mandate or injunction, and may make such terms and condi- tions (as to security, &C.) 11 as to it may seem fit, preliminary to the granting of such mandate or injunction." It is fur- ther provided that "any party to the cause or matter, party in interest or party against whom such mandate or injunction may 8 Hamilton v. Whitridge, n Md. 128, 145. 9 County Comms. v. Franklin Co., 45 Md. 470, 473; Suit v. Creswell, 45 Md. 529, 530; Mayor, &c, v. Warren Co., 59 Md. 96, 105. 10 Nusbaum v. Stein, 12 Md. 315, 318; Hankey v. Abrahams, 28 Md. 588, 591; Cherry v. Stein, 11 Md. 1, 27; Chesapeake Co. v. Young, 3 Md. 480, 489. x Act of 1886, ch. 441; quoted in full in County Comms. v. School Comms., "77 Md. 283, 291-292. 2 Code, art. 16, sees. 177-181. 3 Thus establishing the authority to grant mandatory injunctions upon ex parte applications, before notice to the defendant. 4 This term apparently includes ex parte proceedings, not technically "suits" or "causes"; see ante, sec. 85. 5 Compare post, sec. 579, note 2. ""Motion" as distinguished from "petition;" see ante, sees. 245-246. 7 See post, sec. 579. 8 As to mandatory injunctions, see ante, sec. 572. "Such as trespassers; see Murdock's case, 2 Bl. 461, 487-488. "Compare Pomeroy, Eq. Jur. sec. 1341; Fry on Specific Perform- ance, sees. 1147-1148. 11 As to bond, see post, sees. 587-588- §575-576 Injunctions. 684 issue, may move to have the same discharged or dissolved," and an appeal is allowed. 12 It is also provided that "the court may, at any stage of any cause or matter concerning property, real or personal, on application, or of its own motion, pass such or- der as to it may seem fit, with regard to the possession of the same, pendente lite, or the receipt of the income thereof, on such terms preliminary thereto, (as to security, &c.,) as to it may seem just, subject to the same right to move for its discharge, and the same right of appeal as is given in the preceding sec- tion." 13 And the court may pass an order charging the income on the interest or dividends on any property, real or personal, or chose in action, for any purpose. 14 And it is provided that "all orders or writs issued under the four foregoing sections, shall bind any person or persons, or corporation, against whom the same may be passed or issued, from the time when the pass- ing or issuing of the same shall come to the knowledge of such person or persons, or corporation, by service or otherwise." 15 Interlocutory injunctions. §576. Nature of interlocutory injunctions. — As a general rule an interlocutory injunction does not determine any right, nor necessarily prejudice either party; its province is to preserve the property or fund in controversy. 1 The object of a preventive injunction of this kind is merely to prevent a threatened wrong, or any further perpetration of injury, or the doing of any act thereafter whereby the right to a thing may be embarrassed or endangered, or whereby its value may be ma- terially lessened or the thing itself may be totally lost. 2 12 Code, art. 16, sec. 178; "'an appeal may be taken by any of such parties from the order granting such mandate or injunction, or the refusal to discharge or dissolve the same, in such cases and in such manner and on such terms as is now allowed in case of injunctions." 13 Code, art. 16, sec. 179. "Code, art. 16, sec. 180; see the provisions of this section in full. 13 Code, art. 16, sec. 181. iState v. Northern Central R. Co., 18 Md. 193, 213. See also Clay- ton v. Shoemaker, 67 Md. 216, 219-220; Chesapeake Co. v. Young, 3 Md. 480, 489. 2 Murdock's case, 2 Bl. 461, 470. In Musgrave v. Staylor, 36 Md. 123, 128, an interlocutory in- 685 Injunctions. §577 §577. When granted. — An interlocutory 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 sum- moned. 1 But in cases in which justice may require, the judge to whom an application for an injunction is made, instead of granting the injunction at once and ex parte, may take time for consideration, and give notice to the parties to be affected by the injunction, and afford them an opportunity to be heard. 2 The application may thus be set down for hearing, after notice to the defendant, the hearing being of the motion for a prelimi- nary injunction; 3 or the proceeding may take the form of an order to show cause why an injunction should not be granted. 4 junction was granted and the final decree was in favor of the plaintiff; an objection to the decree that it did not dissolve the injunction pre- viously granted was held untenable, as the injunction served its whole office and purpose by being obeyed until final decree. 1T ones v. Magill, I Bl. 177, 180; exceptions are noted in suits to stay proceedings at law in an action of ejectment by a lessor, or to recover mortgaged property, under certain British statutes; citing Todd v. Pratt, 1 H. & J. 465, 466-467. Compare Salmon v. Clagett, 3 Bl. 125, 161 ; Hall v. McPherson, 3 Bl. 529, 532. In Bosley v. Susquehanna Canal, 3 Bl. 63, 64-66, an injunction was granted on an ex parte application, although the defendant corpo- ration was misnamed in the bill. In Davis v. Reed, 14 Md. 152, 157, the bill was not filed until after the injunction had been ordered; but this was held a mere irregularity, for which the order would not be reversed. See equity rule 4; code, art. 16, sec. 120; ante, sec. 86; Brown v. Wallace, 2 Bl. 585, 602-603. Code, art. 16, sec. 71, provides that each of the circuit judges may grant injunctions or pass orders or decrees in equity at any place in his circuit, to take effect in any part of his circuit. As to granting an injunction on Sunday, see Langabier v. Fair- bury R. Co., 64 111. 243, 248. 2 Bamum v. Gordon, 28 Md. 85, 98. In Bonaparte v. Balto., &c, R. Co., 75 Md. 340, 344, a restrain- ing order was passed, to be in effect until the hearing of the applica- tion. 3 As in Dougherty v. Piet, 52 Md. 425, 428-429, and other cases; see page 434, as to the right of the plaintiff to file a replication, and whether the replication affects the rights of the parties. *As in Morton v. Grafflin, 68 Md. 545, 555, and other cases. As to the right of appeal from a refusal to grant the injunction in such cases, see ante, sec. 326. |577-579 Injunctions. 686 In any of these cases the defendant may at once file his answer to the bill. 5 §578. When answer must be considered.— If in any case the answer is filed before the application for injunc- tion is considered and disposed of, it is the duty of the court to ■consider the answer, if material, in determining the question whether the injunction should issue. 1 If the answer in such case denies the equity of the bill in such manner as would au- thorize a dissolution upon motion to dissolve, the injunction •ought not to be granted. 2 To entitle the plaintiff to an injunc- tion in such a case, it must appear from the answer that the merits of the bill are confessed or that some of its substantial and material averments are left undenied. 3 An averment of the bill not denied is taken as true.* The answer is taken as .true so far as responsive to the bill. 5 §579. Petition in pending cause. — Where the sub- ject-matter and the parties are already within the jurisdiction of the court in a pending case, and an injunction is desired by either party against the other in respect to the property in con- troversy, the injunction should be applied for by petition. Thus 5 Hall v. McPherson, 3 Bl. 529, 532; Krone v. Krone, 27 Md. 77, 82; McMechen v. Story, 1 Bl. 183, 185, note case. iO'Brien v. Balto. Belt R. Co., 74 Md. 363, 368; Lynn v. Mt. Savage Co., 34 Md. 603, 624; Krone v. Krone, 27 Md. 77, 81-82; McMechen v. Story, 1 Bl. 183, 185-186, note case; Md. Savings Inst. v. Schroeder, .8 G. & J. 93, 107. Compare Knighton v. Young, 22 Md. 359, 372; Gilbert v. Ar- nold, 30 Md. 29, 36; Heflebower v. Buck, 64 Md. 15, 22; Mayor, &c, v. Keyser, 72 Md. 106, in. 2 Dougherty v. Piet, 52 Md. 425, 429; Bell v. Purvis, 15 Md. 22, 23; Hall v. McPherson, 3 Bl. 529, 532; State v. Jarrett, 17 Md. 309, 325. In Chappell v. Stewart, 82 Md. 323, 325, it was said that "as the answer denied the allegations of the bill and the motion for a prelim- inary injunction was heard on bill and answer, it was of necessity that the motion should be denied. And as the bill, assuming that all its allegations were true, did not contain any matter cognizable in equity, it ought then and there to have been dismissed." 3 Lynn v. Mt. Savage Co., 34 Md. 603, 624. 4 Mayor, &c, v. Keyser, 72 Md. 106, 115. 'Dougherty v. Piet, 52 Md. 425, 429, 434. €87 Injunctions. §579-580 where the plaintiffs brought their bill to set aside a conveyance of certain land, and afterwards filed a separate bill to restrain the defendants from committing waste upon the land, it was held that the proceeding was improper, and that the proper method was by petition, without praying for subpoena to bring in defendants who were already before the court. 1 So also where the plaintiffs filed their bill to restrain waste and ob- tained an injunction, and the defendant, before answering, filed a petition to restrain one of the plaintiffs from committing waste on the same land, the proceeding was held proper. 2 The code now expressly provides for the granting of an injunction upon petition. 3 §580. Statement of the case in the bill. — Upon an application for an interlocutory injunction, the right of the plaintiff to the immediate interposition of the court depends entirely upon the sufficiency of the facts charged in the bill. If the facts, as stated upon the face of the bill, be not full, and suffi- ciently definite and clear, in support of the right asserted, and that such right has been violated, in the manner charged, the court will not order the defendants to be restrained before they are heard in their defence. 1 The general rule that every bill in equity must contain a clear statement of the facts upon which the plaintiff relies for relief, is applied with much rigor to a bill for an injunction. To warrant the court in issuing an injunc- tion upon an ex parte application, a full and candid disclosure of all the facts must be made. The bill should fully and fairly state the case, within the knowledge of the plaintiff, so that the court may see that prima facie, the thing is fair in the aspect in which it is presented. All the material facts must be brought before iDuvall v. Waters, I Bl. 569, 585. 2 Green v. Keen, 4 Md. 98, 106; it was here said that the case did not differ in principle from Wagner v. Cohen, 6 G. 97, 104, in which after a sale of property had been reported by a trustee, but before ratification, a person claiming to be interested in the proceeds filed a petition for an injunction against the purchaser. The court referred also to Ches., &c, Co. v. Young, 3 Md. 480. See also the instances in Keerl v. Keerl, 28 Md. 157, 160; Brady v. Johnson, 75 Md. 445, 447; Stockett v. Bird, 18 Md. 484, 485. 3 Code, art. 16, sec. 177; <**#*> sec. 575- [§580.] iMayor, &c, v. Warren Co., 59 Md. 96, 105. §580-581 Injunctions. 688 the court; there must be no concealment; all the res gestae must be represented as they actually are. The court must be in- formed by the bill itself, and its accompanying exhibits, if any, of every material fact constituting the case of the plaintiff, in order that it may be seen whether there is a just and proper ground for the application of the summary remedy of injunc- tion. 2 There should be no misrepresentation, or concealment, or keeping in the background important facts of which the court ought to be advised, and which the court thinks are ma- terial to enable it to form its judgment. The failure of the plaintiff to comply with these requirements is in itself a suffi- cient ground to disentitle him to the summary process of the court. 3 §581. The same subject continued. — Moreover, strong prima facie evidence of the facts on which the plaintiff's equity rests must be presented to the court to induce its action. 1 Such evidence must be presented with the bill as will satisfy the court of the plaintiff's right to proceed by way of injunction to obtain relief, although full proof is not necessary. 2 The 2 The text is founded upon the following cases: Lamm v. Burrell, 69 Md. 272, 274; Johnston v. Glenn, 40 Md. 200, 206-207; County Comms. v. Franklin Co., 45 Md. 470, 473; Shoemaker v. Bank, 31 Md. 396, 398; Reddall v. Bryan, 14 Md. 444, 476; Sprigg v. Western Telegraph Co., 46 Md. 67, 74. Instances of bills lacking the above requirements are in the cases cited, and also in Mahaney v. Lazier, 16 Md. 69, 73; Laupheimer v. Rosenbaum, 25 Md. 219, 228-229; Canton Co. v. Northern Central R. Co., 21 Md. 383, 398-399; see also Mayor, &c, v. Warren Co., 59 Md. 96, 109-111. 3 Sprigg v. Western Telegraph Co., 46 Md. 67, 74-77; otherwise this strong arm of the law, which is interposed only to prevent positive and - substantial injury, may become the instrument of wrong and oppres- sion. See this case, in which the bill failed to state important and ma- terial facts. lUnion Bk. v. Poultney, 8 G. & J. 324, 332; Nusbaum v. Stein, 12 Md. 315, 318-319, 321; Mahaney v. Lazier, 16 Md. 69, 73; Laupheimer v. Rosenbaum, 25 Md. 219, 228; Connolly v. Riley, 25 Md. 402, 417; Han- key v. Abrahams, 28 Md. 588, 591; Shoemaker v. Bank, 31 Md. 396, 398-399; Johnston v. Glenn, 40 Md. 200, 206-207; Lamm v. Burrell, 69 Md. 272, 274; Canton Co. v. Northern Central R. Co., 21 Md. 383, 398- 399- 2 Connolly v. Riley, 25 Md. 402, 417. 689 Injunctions. §581-582 averments of the bill must be of facts, and not merely the con- clusions of the pleader from the facts within his knowledge. 3 An instance of the particularity necessary in this respect is in cases where irremediable damage or irreparable injury is charged in the bill; in such cases such mere allegations are in- sufficient. The facts must be stated to show that the apprehen- sion of injury is well founded; without such a statement of facts, an injunction should not issue. 4 With respect to the suf- ficiency of the facts alleged in the bill, it is held that a clear prima facie case demanding redress must be made by the alle- gations of the bill to warrant the issue of an injunction. 5 The facts submitted to the court should be such as to justify the ex- ercise of the discretion of the court, beyond reasonable doubt. 6 In a case where the bill did not disclose all the essential facts to enable the court to form an opinion as to the propriety of granting the injunction, the order appealed from was affirmed and the bill dismissed, but without prejudice to any new ap- plication the plaintiff might make. 7 §582. Exhibits with, the bill.— The general rule with respect to exhibits is that where the right to an injunction 3 Lamm v. Burrell, 69 Md. 272, 275. 4 Amelung v. Seekamp, 9 G. & J. 468, 474; Hamilton v. Ely, 4 G. 34, 37-38; Chesapeake Co. v. Young, 3 Md. 480, 489-490; Green v. Keen, 4 Md. 98, 106; Roman v. Strauss, 10 Md. 89, 97; Fort v. Groves, 29 Md. 188, 193; Baugher v. Crane, 27 Md. 36, 39; Blaine v. Brady, 64 Md. 373, 376; Carlisle v. Stevenson, 3 Md. Ch. 499, 505; and other cases. It is not necessary that the bill should in words aver the injury to be irreparable, but facts showing it to be so must be stated in the bill; White v. Flannigain, 1 Md. 525, 550-551; see also Davis v. Reed, 14 Md. 152, 156-157; Martin v. Jewell, 37 Md. 530, 536. 'County Comms. v. Franklin Co., 45 Md. 470, 473; Miller v. Balto. Co. Marble Co., 52 Md. 642, 645; and see Suit v. Creswell, 45 Md. 529, 530-531; Adams v. Michael, 38 Md. 123, 129. In Salmon v. Clagett, 3 Bl. 125, 161-162, it is said that to lay a proper foundation for an injunction the bill should set forth a case of plain right, and a probable danger that the right would be defeated without the interposition of the court; or it should appear that the question was important and doubtful. 6 Kelly v. Mayor, &c, 53 Md. 134, 139; and see Shoemaker v. Bank, 31 Md. 396, 399. 7 Adams v. Michael, 38 Md. 123, 130. 44 §582 Injunctions. 690 is based upon a written instrument in the possession of the plaintiff, or to which he has ready access, the instrument itself, or a copy, ought to be filed with the bill, in order that the court may see whether the plaintiff is entitled to the relief prayed. 1 If, however, a satisfactory reason is assigned for the non-pro- duction of the proper exhibits, the failure to produce them will not deprive the plaintiff of the relief to which he is entitled upon the verified allegations of the bill. Thus if the exhibit is stated to be in the possession of the defendant, its non-produc- tion is excused. 2 If the facts rest in record or depend upon written evidence, such documentary evidence as constitutes prima facie evidence of their truth, as office copies or short copies and docket entries, are required in proof of such facts. 3 It is not for the plaintiff to allege his construction of a written document, or its effect, and require the court to accept his allegation as true; the document itself should be produced. 4 If the plaintiff fails to file the necessary exhibits with his bill the injunction to which he might otherwise be entitled, ought not to be granted. 5 The defect is not waived by a demurrer to the bill. 6 If an injunction be nevertheless granted, and the defendant appeals, the absence of the necessary exhibits is a iMayor, &c, v. Keyser, 72 Md. 106, 115; Gottschalk v. Stein, 69 Md. Si, 58. In Webb v. Ridgely, 38 Md. 364, 370, it is said that in all the cases there cited the "paper, which was not exhibited with the bill, went to the foundation of the injunction." 2 Haight v. Burr, 19 Md. 130, 135. 3 Myers v. Amey, 21 Md. 302, 306; see also Connolly v. Riley, 25 Md. 402, 417. In Gottschalk v. Stein, 69 Md. 51, 58, it was not decided whether a copy of a judicial proceeding should be authenticated by the seal of the court, as it was not an exhibit on which the equity of the bill was based. Compare Eyler v. Crabbs, 2 Md. 137, 154. In Morton v. Grafflin, 68 Md. 545, 556, it is said that in Baltimore city a transcript of the record of any other Baltimore city court is not necessary, and the docket and record books may be produced as evi- dence, yet the proceedings should be so referred to as to make them a part of the bill, and enable them to be easily found. 4 Mayor, &c, v. Weatherby, 52 Md. 442, 450. 5 Banks v. Busey, 34 Md. 437, 439; Morton v. Grafflin, 68 Md. 545, 556; Haight v. Burr, 19 Md. 130, 135. "Miller v. Balto. Co. Marble Co., 52 Md. 642, 646. 691 Injunctions. §582-583 ground for reversal. 7 But such an objection cannot be raised on a motion to dissolve, after the requisite proof has been sup- plied. 8 §583. Instances of the rule as to exhibits. — If the application for injunction is based upon a debt, the plain- tiff must exhibit with the bill such evidence of the claim as will satisfy the court of his right to proceed in that mode to obtain relief. 1 Where the existence of the debt depends upon a writ- ten instrument, of which the plaintiff is presumed to be pos- sessed, it should be exhibited with the bill, or a satisfactory rea- son assigned for its non-production; the mere oath of the plaintiff as to the existence of the debt is not regarded as any proof of the debt on an application for an injunction. 2 So also where the title of the plaintiff to the right which he seeks to have protected, consists of a written contract, if he fails to produce the contract, or a copy of it, with his bill, or to assign some satisfactory reason for its non-production, he is not en- titled to an injunction; 3 and similarly when the plaintiff failed to produce copies of the pleadings and proceedings in certain material suits; 1 where he neglected to file the receipts upon which his equity rested; 5 or to file copies of a document of a public nature, the execution of which the bill sought to re- union Bank v. Poultney, 8 G. & J. 324, 332; Mahaney v. Lazier, 16 Md. 69, 73; Hankey v. Abrahams, 28 Md. 588, 592. 8 Butler v. Rahm, 46 Md. 541, 549. iConnolly v. Rijey, 25 Md. 402, 417. 2 Union Bank v. Poultney, 8 G. & J. 324, 332; Nusbaum v. Stein, 12 Md. 315, 319; Mahaney v. Lazier, 16 Md. 69, 73; Hankey v. Abrahams, 28 Md. 588, 591; Shoemaker v. Bank, 31 Md. 396, 399; Miller v Balto. Co. Marble Co., 52 Md. 642, 645; Laupheimer v. Rosenbaum, 25 Md. 219, 228. If the debt is in judgment, a copy of the docket entries is suffi- cient; Connolly v. Riley, 25 Md. 402, 417. 3 Hankey v. Abrahams, 28 Md. 588, 591-592; compare Haight v. Burr, 19 Md. 130, 135. "Shoemaker v. Bank, 31 Md. 396, 399"4°i- 5Banks v. Busey, 34 Md. 437, 439; compare County Comms. v. Frank- lin Co., 45 Md. 470, 473. §583-585 Injunctions. 692 strain ; 6 or a copy of a writ of which the service and execution were prayed to be restrained. 7 §584. Prayer for injunction. — The equity rules pro- vide, in reference to the prayers of a bill, that the prayer for re- lief shall specify particularly the relief desired, and shall also contain the prayer for general relief. And if an injunction, or other writ, or any special order, be required, pending the suit, it shall be specially prayed for. 1 Formerly, in order to obtain a preliminary injunction, a prayer for the process of injunction was necessary, and although a bill prayed for relief, by way of injunction, yet if it did not pray for the process, the latter would not be granted. 2 But it is now provided by the equity rules that if an injunction or other writ, or any special order, be asked in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process. 3 §585. Affidavit to the bill. — As *a general rule, an injunction cannot be granted on the bill and exhibits alone un- less the bill 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 shows how he happens to have a knowledge of the facts set forth in the bill; or by some other testimony sufficient to induce the chancellor to credit the bill for the truth of its statement, 1 such as documentary evidence, or e Mayor, &c, v. Weatherby, 52 Md. 442, 449-450. 'Lamm v. Burrell, 69 Md. 272, 275. See also Butler v. Rahm, 46 Md. 541, 549; Morton v. Grafflin, 68 Md. 545, 556; Ridgely v. Webb, 38 Md. 364, 369-370; Buchanan v. Tor- rance, 11 G. & J. 342, 346. 1 Equity rule 15; code, art. 16, sec. 133; compare Binney's case, 2 Bl. 99, 106. As to prayers for relief in general, see ante, sees. 100-101. In Kelly v. Mayor, &c, 53 Md. 134, 144, it was said that accord- ing to the prayer of the bill, the injunction was the only specific relief prayed, and that no other could be granted under the general prayer for relief. 2 Webb v. Ridgely, 38 Md. 364, 368; see the instance here; Union Bank v. Kerr, 2 Md. Ch. 460, 467. 3 Equity rule 16; code, art. 16, sec. 134. [§585.] ijones v. Magill, 1 Bl. 177, 180; Binney's case, 2 Bl. 99, 104; 693 Injunctions. §585-586 any other kind sufficient to cause belief, and to induce the court to trust the bill. 2 But the allegations of the bill need not be sustained by affidavits aliunde that of the plaintiff, when the facts are in pais. 3 What is required as preliminary to the granting of an injunction, other than the sufficiency of the averments of the bill, is that the confidence of the court should be obtained, and this may be had on documentary evidence as well as on affidavit. 4 §586. Order for injunction. — The form of order for injunction in general use directs that a writ of injunction be is- sued, as is prayed in the bill, upon the filing of a bond for a specified sum, with security to be approved by the clerk; re- serving liberty to the defendant to move for the rescinding of the order, and for dissolution of the injunction, at any time after filing an answer to the bill, on giving the plaintiff five days previous notice of such motion; and also directs the clerk to annex a copy of the order to the writ. 1 The order is to be construed with reference to the prayer and object of the bill upon which it is granted. 2 Salmon v. Clagett, 3 Bl. 125, 162; Canal Co. v. Railroad Co., 4 G. & J. 1, 60, per Bland, Ch. ; see also Mayor, &c, v. Appold, 42 Md. 442, 458. An injunction may be granted on the equity admitted by the answer when it comes in, although the bill has not been sworn to; Bin- ney's case, 2 Bl. 99, 104. Compare post, sec. 606, and note 2. 2 Salmon v. Clagett, 3 Bl. 125, 162. 3 Myers v. Amey, 21 Md. 302, 306. ^Negroes v. Sheriff, 12 Md. 274, 279; in this case it was said that in general it is necessary that the bill should be sworn to, but that this is not in all cases indispensable. The plaintiffs here were negroes and incompetent to make an affidavit. iCarey's Forms, No. 705, p. 535. In Stewart v. Barry, 1 Bl. 191, note case, it was said that at the time when the bill was filed, the chancellor was absent; and according to the long established course, under such circumstances, it was sub- mitted to a solicitor of the court, who was in no way concerned in the case, upon whose sanction the register issued the injunction as prayed, subject to the opinion of the' chancellor on his return. See also the arguments of counsel, in Guyton v. Flack, 7 Md. 398, 399"4°i- 2 Hamilton v. State, 32 Md. 348, 352-353; the idea that an order di- recting an injunction to issue was a nullity, because it did not specific- §587 Injunctions. 694 §587. Injunction bond; discretion of court.— Whether or not in a given case a bond should be required is a matter resting in the discretion of the court. 1 In some cases only nominal bonds have been required. 2 Formerly it was the practice to require bond only in actions brought to stay proceedings at law. 3 In other cases, injunctions were granted without any bond or other security. 4 An act passed in 1835 s gave the court in all cases where an injunction was granted, the power to require bond, with security ; this act was regarded as declaratory of the then existing rule. 6 Even in an action to stay execution of a judgment at law, the requirement of bond is now left to the discretion of the court. There is no statute which expressly directs that a bond shall be given be- fore an injunction may be issued. The practice has universally prevailed, however, to require such a bond, save in extreme and exceptional cases; but the discretion of the court in such cases cannot be reviewed on appeal. 7 ally define the matter upon which the writ was to operate, was held untenable. In Mayor, 1 &c, v. Warren Co., 59 Md. 96, 109, it was said that it was impossible to grant the injunction in that case in the terms of the prayer of the bill. iCounty Comms. v. School Comms., 77 Md. 283, 292; White v. Da- vidson, 8 Md. 169, 187; in the former case it is said that the exercise of this discretion is not reviewable on appeal. In Alexander v. Ghiselin, 5 G. 138, 188, it is said: "It is certainly proper, as a general rule, very rarely, if ever, to be departed from, that an injunction bond should be required when an application is allowed that delays the recovery or receipt of money, or which lessens or in any respect endangers any existing securities, or renders liable to loss thereof any money or profit or property, which the adverse party is by the injunction prevented from receiving or enjoying." Followed in Reynolds v. Howard, 3 Md. Ch. 331, 332. 2 Eakle v. Smith, 27 Md. 467, 483. Compare Negroes v. Sheriff, 12 Md. 274, 279. 3 Alex. Ch. Pr. 81-82; instances are in Billingslea v. Gilbert, 1 Bl. 566; Walsh v. Smyth, 3 Bl. 9, 13; Reynolds v. Howard, 3 Md. Ch. 331, 332. *Alex. Ch. Pr. 82. 5 Act of 1835, ch. 346, sec. 3. «Alex. Ch. Pr. 82. 'Wagner v. Shank, 59 Md. 313, 328; under the extraordinary circum- stances of this case the court below held that the ends of justice au- thorized a departure from the general rule. See also Cape Sable Co's. case, 3 Bl. 606, 615-619. 695 Injunctions. §588 §588. Other matters regarding bonds.— In case of any defect or deficiency in the bond the practice has been to require further security, and not to dissolve the injunction for that cause. 1 If no bond is filed, when one should be filed, the defendant may apply by petition for an order requiring bond to be given by a reasonable period, to be limited for the purpose, or on default to have the injunction dissolved. 2 But if the court holds that the plaintiff is entitled to an injunction upon the facts, and that an injunction previously granted without bond should be made perpetual, it would be unnecessary to require a bond. 3 The condition of the bond is made for the protection of the obligor, as a pledge for the action of the party obtaining the injunction. 4 The penalty of an injunction bond to stay proceedings at law should be at least double the amount of the debt and costs then due. 5 When the proceedings result in a decree making the injunction perpetual, the effect is to dis- charge the bond. 6 The code provides that before granting in- junction to stay any sale, or any proceedings after any sale, of iWilliams v. Hall, I Bl. 193, 194, .note case. 2 Alexander v. Ghiselin, 5 G. 138, 188; such a proceeding would be proper in the lower court after the case had been sent back after an ap- peal, if the continuance of the injunction was dependent upon a ques- tion of fact or law yet to be established. See also Onion v. McComas, 1 Bl. 566, note case; O wings v. Worthington, 10 G. & J. 283, 294. The court cannot discharge a surety on an injunction or appeal bond and substitute another; Artz v. Grove, 21 Md. 456, 476. Code, art. 17, sec. 24, provides that the clerks may approve any injunction bond filed in their respective courts. 'Alexander v. Ghiselin, 5 G. 138, 188; in this case an injunction was issued without bond; the injunction was thereafter dissolved. On ap- peal, the court held that there should have been an injunction bond, but as the court further held that the injunction should be made perpetual, there was no need for a bond. 4 Eakle v. Smith, 27 Md. 467, 481, 483. In Banks v. State, 48 Md. 513, 520, an instrument was held to confer upon an attorney in fact the power to bind the principal by the execution of an injunction bond in the latter's name. 5 Billingslea v. Gilbert, 1 Bl. 566; Wagner v. Shank, 59 Md. 313, 328: in the latter case, the court alluded to the act of 1723, ch. 8, sec. 5, which is stated in Burgess v. Lloyd, 7 Md. 178, 200. In Negroes v. Sheriff, 12 Md. 274, 279, it was said that no bond could be tendered until the court fixed the amount of the penalty. "Wagner v. Shank, 59 Md. 313, 328. §588-589 Injunctions. 696 mortgaged premises, made under article 66 of the code, the court shall require a bond to the mortgagee or the person acting or claiming under him; 7 and also makes provision for cases where an application is made by an executor or adminis- trator for an injunction to stay proceedings at law. 8 Injunc- tion bonds are generally executed under the provision of the code authorizing a court of equity to take bonds in the name of the State. 9 The code expressly provides that such bonds may be sued on by any person interested. The State has no interest in the bond, and only those having an interest in the subject-matter of the condition, and for whose benefit the bond is taken, can put the bond in suit. 10 No action can be main- tained upon the bond until after the final termination of the cause. 11 Until the writ of injunction is obtained, and the de- fendant is actually restrained by it, there can be no breach of the condition. 12 The bond is liable for costs and damages oc- casioned by the issuing of the injunction until the latter is dis- solved. 13 §589. Writ of injunction. — Immediately upon the entry of the order for injunction, and after complying with any requirement as to bond or otherwise, the party who obtained it is entitled to have the writ issued from the clerk's office and 7 Code, art. 66, sec. 18. 8 Code, art. 16, sec. 66. Rule 22 of the rules of the equity courts of Baltimore city pro- vides that no solicitor or other officer of the court or his deputy shall be admitted as a surety on an injunction bond. 9 Code, art. 16, sec. 153. As to the obligation of the surety when other persons are admit- ted as co-plaintiffs, see Levy v. Taylor, 24 Md. 282, 291-292; compare Furness v. Read, 63 Md. 1, 4. 10 Le Strange v. State, 58 Md. 26, 39-40. Compare Stewart v. State, 20 Md. 97, 105-107. "Gray v. Veirs, 33 Md. 159, 160; compare Hamilton v. State, 32 Md. 348, 352. 12 Eakle v. Smith, 27 Md. 467, 483. ls Wallis v. Dilley, 7 Md. 237, 250. See also Hamilton v. State, 32 Md. 348, 353-354, as to the separate liabilities on the injunction bond and the appeal bond. Cases in which the measure of damages has been considered are Wallis v. Dilley, 7 Md. 237, 249-251; Levy v. Taylor, 24 Md. 282, 292; Lange v. Wagner, 52 Md. 310, 320; Banks v. State, 62 Md. 88, 94-95. 697 Injunctions. §589-590 served. The writ is prepared by the clerk in conformity with the terms of the order, and must be under the seal of the court from which it issues. The form of the writ is unimportant, provided it contains enough to give the defendant notice that he is enjoined from doing the acts prohibited by the order. It should contain a concise description of the particular acts or things as to which the defendant is enjoined. It is addressed to the person who is enjoined, and in proper cases, to the lat- ter's agents, attorneys, servants or workmen. 1 The usual form of writ enjoins the defendant until the further order of the court. 2 The writ is in general binding upon the defendant after notice of its issuance has come to his knowledge. 3 §590. Amendment of bill. — The injunction will not be dissolved, as of course, on making any trivial or unimportant amendment to the bill. But where an amendment is asked for the purpose of introducing new facts, which give a different complexion to the case, or make any substantial alteration in it; or where the object of the amendment is to require a new frame and direction to be given to the writ of injunction; there the prayer for amendment carries with it a tacit admission that the basis of the injunction which had been previously granted, is substantially wrong, and therefore upon granting the amend- ment it is said that the injunction is gone, of course, unless ex- pressly saved by the terms of the order granting the amend- ment. 1 Where an injunction was granted, but afterwards a iBeach, Eq. Pr. sec. 773; Foster, Fed. Pr. sec. 234. In Hopkins v. State, 53 Md. 502, 515, it is said that where the writ of injunction refers to the bill, the latter may be examined for the purpose of ascertaining to what the injunction applies; and see also page 516. In Campbell v. Poultney, 6 G. & J. 94, 102, it was held that an objection to the writ that it issued against persons unknown, was not sustainable. Compare the form in In re Debs, 158 U. S. 564, 570, 572; and see Mayor, &c, v. Harwood, 32 Md. 471, 481-482. 2 Carey > s Forms, No. 707, page 537. 8 Code, art. 16, sec. 181; see post, sec. 610. [§590.] 1 Binney's case, 2 Bl. 99, 107-108; see also page 103. Compare Alex. Ch. Pr. 90, and the preface, page x; Foster, Fed. Pr. sec. 236. In Wagoner v. Wagoner, 77 Md. 189, 193, an injunction was granted, and thereafter the plaintiff prayed leave to file an amended §590-591 Injunctions. 698 demurrer to the bill was sustained, without allowing an amend- ment of the bill, it was held that as the case presented by the proposed amendment to the bill was one in which an injunction might properly be awarded, the amendment should have been allowed and the injunction continued. 2 When an injunction has been granted, and a motion to dissolve has been made, it is not usual to ask for, or for the court to grant, leave to amend the bill. 3 §591. Proceedings by the defendant. — Upon being brought into court by the writ of injunction, the defendant may pursue the usual course of pleading, by demurrer, plea and answer, and the case may then go forward to final hearing in the same manner as other cases ; or he may avail himself of two other proceedings applicable to injunction cases. 1 These are, first, an immediate appeal from the order granting the injunc- tion, after filing his answer, or demurrer to the whole bill; 2 and, second, a motion to dissolve the injunction. 3 The de- fendant may by demurrer test the sufficiency of the bill to au- thorize the injunction issued against him.* The proceedings upon the demurrer are not different from those upon bills and supplemental bill; the court ordered that the same be taken and received as an amended and supplemental bill. This order of the court granting leave was held to be, in effect, a refusal to continue the in- junction previously granted. See also, in general, Walsh v. Smyth, 3 Bl. 9, 20; McKim v. Odom, 3 Bl. 407, 413; Hiss v. McCabe, 45 Md. 77, 82-83; Morton v. Grafflin, 68 Md. 545, 556. 2 Keerl v. Keerl, 28 Md. 157, 160-161. 3 Bush v. Linthicum, 59 Md. 344, 355; leave was, however, granted in Wagoner v. Wagoner, 77 Md. 189, 190-191; Hill v. Reifsnider, 39 Md. 429, 430. In Hill v. Reifsnider, 39 Md. 429, 430, it was held that an order was not the subject of appeal which granted leave to a plaintiff to amend his bill by a day therein named, and on failure to make such amendment by the day named, declaring that the injunction would be dissolved, and in the meantime continuing the injunction till the further order of the court. iThere is a somewhat similar procedure in cases where a receiver is appointed upon an ex parte application ; post, sees. 623, 624. 2 See post, sec. 592. 'See post, sees. 593-606. 4 As in numerous cases; see Campbell v. Poultney, 6 G. & J. 94, 96. 699 Injunctions. §591-592 seeking other kinds of relief. 5 If the demurrer is sustained, the bill may be dismissed, 6 whereupon the injunction necessarily falls; or leave may be given to amend, and the injunction may be continued. 7 If the demurrer is overruled, the usual proceed- ings after such a decision may be had. s An appeal lies from the action of the court, as in other cases. 9 §592. Appeal. — If the defendant is of the opinion that upo'n the allegations of the bill the injunction ought not to have issued against him, he may, after filing his answer, or demurrer to the whole bill, take an appeal. If the appellate court con- siders that the allegations of the bill are sufficient, according to the established rules of equity pleading, the order granting the injunction will be affirmed without inquiring into the truth or falsity of the allegations. But if the bill be defective in sub- stance and if its averments be vague, indefinite and insufficient, the order appealed from will be reversed, without any regard to the merits of the controversy. 1 If the order is affirmed the cause is remanded and the defendant may proceed in the lower court by the usual pleadings, and in the further progress of the cause, upon testimony or otherwise, the injunction may be dissolved or made perpetual. 2 If, however, the order granting the injunction is reversed by the appellate court, the reversal may be accompanied by an order dismissing the bill abso- lutely, 3 or allowing further proceedings. 4 Until the passage of the act of 1890, ch. 32, the effect of an appeal by the defend- ant from an order granting an injunction, together with the giving of an appeal bond by the appellant, was to stay the oper- ation of the injunction; 5 and thereby "to convert this powerful 5 See ante, sees. 135, 136. e As, for example, in Gorsuch v. Thomas, 57 Md. 334, 338. 7 Keerl v. Keerl, 28 Md. 157, 159-161; compare Salmon v. Clagett, 3 Bl. 125, 160. 8 See ante, sec. 135. °See ante, sec. 307, and note 4; Chappell v. Funk, 57 Md. 465, 474- 475- !See ante, sees. 317 and 321; Lamm v. Burrell, 69 Md. 272, 273-274. 2 As in Hiss v. McCabe, 45 Md. 77, 80-81, and other cases. 3 As in Kirby v. Pascault, 53 Md. 531, 538, and other cases. *As in Lamm v. Burrell, 69 Md. 272, 276, and other cases. 5 See post, sec. 609. §592-593 Injunctions. 700 specific remedy into a mere claim for damages." 6 But by the act, the court has discretion to direct that the order shall not be stayed, or only so far, or on such terms, as it may direct. 7 Motion to dissolve. §593. Nature of motion ; when made. — By amotion to dissolve the defendant calls upon the plaintiff to show cause why, after having well and sufficiently answered the bill, the injunction should not be dissolved. 1 The motion is to dissolve unless cause be shown by the plaintiff. 2 On filing his answer 5 the defendant has a right to immediately make a motion for the dissolution of the injunction. 4 In doubtful or important 6 Phelps, Jur. Eq. sec. 106. 7 See the act quoted in full; ante, sec. 341; the act was applied in County Comms. v. School Comms., 77 Md. 283, 292. 1 Gibson v. Tilton, 1 Bl. 352, 353. In Salmon v. Clagett, 3 Bl. 125, i62-i63,_it was said that "the question presented on a motion to dissolve on the coming in of the answer is not one which always or necessarily involves the merits of the whole case as set forth in the bill; it may be and not infrequently is much narrower." In Frostburg Assn. v. Stark, 47 Md. 338, 347, it was said: "If the averments in the bill were untrue, the appellants should have filed their answer, and then made a motion to dissolve the injunction and dis- charge the receiver." 2 Jones v. Magill, 1 Bl. 177, 181; Heck v. Vollmer, 29 Md. 507, 511. In Dorsey v. Hobbs, 10 Md. 412, 418, per Eccleston, J., it was said that the great lapse of time since the granting of the injunction, without a motion to dissolve, had much influence upon the decision. Compare Frazier v. Keller, 71 Md. 58, 59-60. 3 Matter stated in a plea is not available upon a motion to dissolve; Salmon v. Clagett, 3 Bl. 125, 163; as to a hearing upon demurrer, see Alex. Ch. Pr. 85, and preface, page x. *Salmon v. Clagett, 3 Bl. 125, 132; Jones v. Magill, 1 Bl, 177, 180; in the latter case it is said, page 181, that the defendant may also have a rule further proceedings entered, so as to compel the plaintiff to proceed with his case in addition to his showing cause upon the motion to dis- solve; see also pages 198 and 200. Rule 16, of the rules of the equity courts of Baltimore city, pro- vides that "on filing an answer to a bill or petition for an injunction, the defendant may enter on the docket a motion for dissolution of the said injunction, which shall be placed upon the calendar for hearing at the next succeeding term, as provided in the first rule, or he may on ap- plication have a day assigned for the hearing thereof." 7 °l Injunctions. §593-594 cases the chancellor always specified the time and terms upon which a motion might be made; 5 and the present usual form of order granting an injunction contains a similar provision. 6 §594. Effect of decision; dismissal of bill.— An order refusing to dissolve an injunction may not necessarily be final, because it is open to be qualified or absolutely reversed on final hearing, if additional evidence be adduced, establish- ing different facts from those upon which the preliminary de- cision was founded. 1 Any conclusion formed by the court upon evidence given on a motion to dissolve an injunction can only be used at the hearing of the motion. 2 Where the injunction is merely ancillary to the relief prayed, and a motion to dissolve is granted, the plaintiff is entitled to have the bill retained, so as to proceed to a final hearing of the cause. 3 But where the injunction asked for is not ancillary, 5 Jones v. Magill, I Bl. 177, 182-187; Binney's case, 2 Bl. 99, 104; see also Williamson v. Carnan, 1 G. & J. 184, 191, per Bland, Ch. In Owings v. Worthington, 10 G. & J. 283, 294, it was held that an application to the chancellor to appoint an early day for the hearing of a motion to dissolve an injunction is addressed to his discretion and is not the subject of appeal. 6 Carey's Forms, No. 705, pages 535-536; the provision is that "liberty is hereby reserved to the defendant to move for the rescinding of this order, and for a dissolution of the injunction to be issued as aforesaid, at any time after filing his answer to said bill, on giving the plaintiff five days' previous notice of such motion. And the clerk is hereby directed to annex a copy of this order to the writ of injunction." iDavis v. Gemmell, 73 Md. 530, 543; compare Gray v. Veirs, 33 Md. 159, 160; Cross v. Mullikin, 3 Bl. 616, 618, note case. In Cumberland Coal Co. v. Sherman, 20 Md. 117, 131, a motion to dissolve an injunction was heard on bill, answer and proof; the mo- tion to dissolve was overruled, the injunction was continued, and on appeal, the action of the lower court was affirmed. The cause was re- manded and proceeded to final hearing, further testimony being taken; whereupon a different conclusion was reached and the injunction was dissolved and the bill dismissed, but on appeal the decree of dismissal was reversed on the merits; see pages' 137-138. 2 State v. Brown, 64 Md. 199, 207. 3 Kelly v. Mayor, &c, 53 Md. 134, 143; the court said that such was the practice, sanctioned by its decisions in several cases. In Dorsey v. H^agerstown Bank, 17 Md. 408, 412-413, the cause was not set down for final hearing, but simply on a motion to dissolve the injunction; it was held irregular to dismiss the bill, which ought §5^4-595 Injunctions. 702 but the primary and principal relief prayed, there is no reason for retaining the bill, if upon hearing upon bill and answer, or bill, answer and depositions, it appears to the court that there is no ground for issuing or granting the injunction upon the merits. 4 §595. Answers of all defendants should be first filed. — As a general rule, where the,re are several defendants, a motion to dissolve the injunction should not be heard until they have all answered. But the general rule has exceptions and is subject to discretion and modification, according to the circumstances of the case; as where those not answering are mere formal parties, or are infants, or non-residents, whose an- swers cannot be material in regard to the facts on which the in- junction is founded; in such cases the answers of such parties will not be required as a pre-requisite to hearing the motion. Thus, if the defendant against whom the gravamen of the charges of the bill rests has fully answered, there can be no good reason why the injunction should not be dissolved, al- though there be other defendants who have not answered. 1 to have been retained, and the plaintiffs allowed to proceed to finaj hearing. Similarly in Huston v. Ditto, 20 Md. 305, 332; compare Cherry v. Stein, 11 Md. 1, 29; Laupheimer v. Rosenbaum, 25 Md. 219, 230-231; Gelston v. Frazier, 26 Md. 329, 346-347. 4 Kelly v. Mayor, &c, 53 Md. 134, 144; in this case an injunction had not been granted upon the bill, and after depositions were taken the court passed an order refusing the injunction and dismissing the bill. The injunction was the only specific relief prayed, and none other could be granted under the general prayer for relief. "The question at the hearing was not, should an injunction be dissolved, but should one be granted, and there being, in no aspect of the case, ground for othe,r and further relief, the court below was warranted in dismissing the bill." The court cited Webster v. County Comms., 51 Md. 395, 398. Com- pare McKim v. Odom, 3 Bl. 407, 410; Geiger v. Green, 4 G. 472, 477- 478; Bartlett v. Hipkins, 76 Md. 5, 6, 26. 1 Heck v. Vollmer, 29 Md. 507, 509-510; thus where all, or any partic- ular number, of the defendants, are implicated in the same charge, and that charge forms the material ground for sustaining the injunction, there the answers of all, or as many as may be so implicated, should be required before dissolving the injunction, unless for some special reason shown to the contrary. See also Jones v. Magill, 1 Bl. 177, 190- 193; Binney's case, 2 Bl. 99, 109; Cape Sable Co's. case, 3 Bl. 606, 623. In the first mentioned case it is said that the general rule and its excep- 703 Injunctions. §596-597 §596. Answer under oath. — In order to sustain a mo- tion to dissolve, the answer of the defendant must be under oath. The statute prior to the code of i860, authorizing answers to be filed without oath, did not apply to answers at the hearing of a motion to dissolve. 1 The code declares that it shall not be necessary for any defendant to make oath to his answer unless required by the plaintiff; but it is expressly provided that this section of the code shall not apply to motions to dissolve an in- junction or to discharge a receiver; 2 in such cases the answer must be under oath whether the oath be required by the bill or not. 3 §597. Answer as evidence. — The code also provides that no answer, whether sworn to or not, shall be evidence against the plaintiff at the hearing of the cause, unless the plain- tiff shall read such answer as evidence against the defendant making the same; but it is expressly provided that this pro- vision shall not apply to motions to dissolve an injunction or to discharge a receiver. 1 By this exception parties are remitted tions were recognized and well stated by chancellor Bland in Jones v. Magill, 1 Bl. 177, 190-193, and that the practice in this State in conform- ity thereto may be regarded as well established. Compare Mayor, &c, v. Harwood, 32 Md. 471, 481-482. 1 Bouldin v. Mayor, &c, 15 Md. 18, 20-22; the statute referred to was the act of 1853, ch. 344, sec. 2; ante, sees. 162, 163; the answer of the corporation here was under its corporate seal, but not under oath, and was held therefore not such a denial of the equity of the bill as to au- thorize a- dissolution of the injunction; the case was heard on bill, answer and testimony. See also Gelston v. Rullman, 15 Md. 260, 267; Dorsey v. Hagerstown Bank, 17 Md. 408, 412; Mayor, &c, v. Bouldin, 23 Md. 328, 368. But an answer without oath is sufficient to authorize an appeal under the section of the code allowing appeals from orders granting injunctions, (code, art. 5, sec. 25; ante, sec. 322,) and is sufficient to put the cause at issue upon final hearing; Mahaney v. Lazier, 16 Md. 69, 73; post, sec. 609. An objection that the answer is not under oath is waived if the plaintiff opposes the motion to dissolve without objecting on that ground; Billingslea v. Gilbert, 1 Bl. 566, 568. 2 Code, art. 16, sec. 146; code of i860, art. 16, sec. 103. 3 Mahaney v. Lazier, 16 Md. 69, 73. [§597.] iCode, art. 16, sec. 146; code of i860, art. 16, sec. 103. The act of 1852, ch. 133, {ante, sec. 162,) providing that answers in chancery §597-599 Injunctions. 704 to the ancient rule 2 in equity practice and pleading, that on a motion to dissolve, the answer if responsive to the bill is evi- dence for the defendant. 3 And it is further provided that an answer under oath may be used as an affidavit, with the same effect ,as heretofore, on a motion to grant or dissolve an injunc- tion. 4 §598. How the motion may be heard. — Before the passage of the act of 1835, 1 authorizing parties to take proof, the court was confined absolutely to the bill and answer on the motion to dissolve. 2 The defendant was entitled to have the motion heard upon his answer only, in connection with the bill, and the plaintiff had no right to take proof. By the act above mentioned, however, either party became entitled to take tes- timony, and thereby the right of the defendant to have the mo- tion heard on bill and answer only was taken away, as the plain- tiff became entitled to take testimony to support the allegations of the bill. §599. Hearing on bill and answer. — When the case is heard on bill and answer, if the answer expressly denies all the facts stated in the bill, or such a material part of them as leaves not enough to furnish an equitable foundation for the injunction, the injunction must be dissolved. When the an- swer contained such a denial it was said that it swore away the should not be evidence for the defendant, unless, &c, did not apply to an answer upon a motion to dissolve; see the authorities, ante, sec. 596, note 1. See also Colvin v. Warford, 17 Md. 433, 435. 2 See ante, sec. 160. 3 Hubbard v. Mobray, 20 Md. 165, 167. Compare Dittman v. Repp, SO Md. 516, 520; Gelston v. Rullman, 15 Md. 260, 267. *Equity rule 27; code, art. 16, sec. 147. 1 Act of 1835, ch. 380, sec. 8, now represented by code, art. 16, sec. 68; see post, sec. 603, note 1. 2 Belt v. Blackburn, 28 Md. 227, 241; Salmon v. Clagett, 3 Bl. 125, 132; in the latter case it is said that no ex parte affidavits or other proofs are ever admitted at that stage of the case, in support of either the bill or the answer; see also Bellona Co's. case, 3 Bl. 442, 445; Washington University v. Green, 1 Md. Ch. 97, 103; State v. Northern Central R. Co., 18 Md. 193, 219, citing Canal Cp. v. Railroad Co., 4 G. & J. 1, 57, per Bland, Ch. 705 Injunctions. §599-600 equity of the plaintiff's bill. 1 But only a direct and responsive denial of the facts composing that case on which the plaintiff's equity rests could entitle the defendant to a dissolution of the in- junction. 2 §600. Insufficiency of answer; continuing the injunc- tion. — As a general rule, if the answer be in any respect in- sufficient, the injunction cannot be dissolved on a motion for that purpose. 1 The motion is founded on the correctness and sufficiency of the answer. 2 Thus if the answer is evasive and Salmon v. Clagett, 3 Bl. 125, 163, 165; Gibson v. Tilton, 1 Bl. 352, 355: Stewart v. Chew, 3 Bl. 440, 441; Hutchins v. Hope, 12 G. & J. 244, 256. See also Brown v. Stewart, 1 Md. Ch. 87, 93; Washington Uni- versity v. Green, 1 Md. Ch. 97, 103; Wood v. Patterson, 4 Md. Ch. 335, 336, 34i: Dorsey v. Hagerstown Bank, 17 Md. 408, 412; Hubbard v. Mobray, 20 Md. 165, 167; Webster v. Hardisty, 28 Md. 592, 596; Lynn v. Mount Savage Co., 34 Md. 603, 624; Colvin v. Warford, 17 Md. 433, 435; Bell v. Purvis, 15 Md. 22, 23; Hyde v. Ellery, 18 Md. 496, 501- 502; Furlong v. Edwards, 3 Md. 99, 112; Harris v. Sangston, 4 Md. Ch. 394, 395- 2 Bellona Co's. case, 3 Bl. 442, 445. In Phila. Trust Co. v. Scott, 45 Md. 451, 453, an answer stated that the defendant "does not believe, and denies" an averment of the bill; this was held to be an express denial. See also Harrison v. An- napolis R. Co., 50 Md. 490, 512-513. In suits to stay waste, where the title of the plaintiff was denied by the answer, the rule was somewhat different; Duvall v. Waters, 1 Bl. 569, 584-585- In Lynch v. Colegate, 2 H. & J. 34, 36, chancellor Hanson held that "whenever, on motion to dissolve, it appears from the answer that the complainant was entitled to an injunction at the time of obtaining it, the same shall continue until final hearing, or further order, unless the defendant admits everything alleged in the bill, on account of which the injunction was obtained." This rule was recognized in Dorsey v. Smith, 7 H. & J. 345, 346, per Kilty, Ch.; Chase v. Manhardt, 1 Bl. 333, 335-336; Alex. Ch. Pr. 87. In Webster v. Hardisty, 28 Md. 592, 597, it was said "we do not find that this rule has been sanctioned by any decision of the appellate court, but we need not decide upon its correctness, because," &c. [§600.] 1 SaImon v. Clagett, 3 Bl. 125, 132; a defendant who omits to answer, or answers evasively, any substantial part of the bill, not blended with that which peculiarly related to the grounds of the injunc- tion, comes with a very ill grace to ask for its dissolution. See, in gen- eral, ante, sees. 155, 156. 2 Gibson v. Tilton, 1 Bl. 352, 353; Belt v. Blackburn, 28 Md. 227, 241. 45 §600-601 Injunctions. 706 not full, or does not deny the facts, on which the equity of the plaintiff's bill rests, it would be proper to continue the injunc- tion. 3 If any one of the material allegations of the bill re- mains unanswered, the injunction will be continued to the final hearing, because in such a case the equity upon which the in- junction issued is not sworn away. 4 So if the defendant in his answer professes to have no personal knowledge of the aver- ments of the bill, and denies them only upon information, the answer has not the effect of dissolving the injunction. 5 In short, if the equity of the bill be admitted, or is not denied, the injunction will not be dissolved, but will be continued until the final hearing or further order. 6 §601. Exceptions to the answer. — Exceptions to the an- swer are heard at the same time as, and together with, the motion to dissolve. 1 The motion to dissolve being founded upon the sufficiency of the answer, the defendant cannot object to the filing of exceptions to it at the hearing. He stands pledged to sustain it in all respects; or he must fail in his motion. 2 But the plaintiff may waive his right to except to the answer, by failing to object, at the proper time, before taking further pro- ceedings. 3 3 Williams v. Hall, I Bl. 193, 195, note case; Salmon v. Clagett, 3 Bl. 125, 132, 163. 4 Brown v. Stewart, 1 Md. Ch. 87, 93. 6 Doub v. Barnes, 4 G. 1, 20; s. c, 1 Md. Ch. 127, 131; Kent v. Ric- ards, 3 Md. Ch. 392, 397; compare Phila. Trust Co. v. Scott, 45 Md. 45i, 453-454; Sisk v. Garey, 27 Md. 401, 420. «Hutchins v. Hope, 12 G. & J. 244, 256; State v. Northern Central R. Co., 18 Md. 193, 219. ijones v. Magill, 1 Bl. 177, 181; Salmon v. Clagett, 3 Bl. 125, 132-133; Keighler v. Savage Mnfg. Co., 12 Md. 383, 413. The plaintiff may, on the very day of hearing the motion, file ex- ceptions to the answer and have them heard; Gibson v. Tilton, 1 Bl. 352, 353- In Salmon v. Clagett, 3 Bl. 125, 133, it was said that for the pur r pose of obtaining a sufficient answer to the full extent required by the bill, the plaintiff is not denied the right to except to the answer within the proper time, after the motion for a dissolution of the injunction has been disposed of. 2 Belt v. Blackburn, 28 Md. 227, 241, quoting Gibson v. Tilton, 1 Bl. 352, 353- sBillingslea v. Gilbert, 1 Bl. 566, 568; Belt v. Blackburn, 28 Md. 227, 240-241 ; Hutton v. Marx, 69 Md. 252, 256. 707 Injunctions. §602 §602. Averments of the bill and answer. — When a motion to dissolve is heard on bill and answer, all the allegations of the bill, which are not denied by the answer, are taken to be true. This rule is said to be as well settled as any rule of prac- tice can be. 1 If the facts of the bill be admitted or not denied, the injunction will be continued. 2 But if any allegation of the bill be denied by the answer, such allegation cannot be consid- ered. 3 With respect to the answer, the rule is that when a motion to dissolve is heard on bill and answer, the responsive averments of the answer are taken as true.* Credit can only be given to the answer in so far as it speaks of responsive matters within the personal knowledge of the defendant; if the answer is founded on hearsay, it cannot remove the plaintiff's equity.** Matter in avoidance contained in the answer has no weight on a motion to dissolve; such matter, if sustained by proof, or ad- mitted by setting the case down for final hearing on bill and answer, may be a sufficient defence at the hearing, but cannot be shown as cause for dissolving the injunction on an interlocu- tory motion for that purpose. The court gives credit to the answer only so far as it is responsive to the case stated by the bill on which the injunction was granted. 6 1 Crowe v. Wilson, 65 Md. 479, 483-484; to the same effect are Wash- ington Univ. v. Green, 1 Md. Ch. 97, 106; Cronise v. Clark, 4 Md. Ch. 403, 406; Alexander v. Ghiselin, 5 G. 138, 186; Briesch v. McCauley, 7 G. 189, 196; Warfield v. Gambrill, 1 G. & J. 503, 511. 2 State v. Northern Central R. Co., 18 Md. 193, 219. 3 Harrison v. Annapolis R. Co., 50 Md. 490, 512; Flickinger v. Hull, 5 G. 60, 76. 4 Wood v. Patterson, 4 Md. Ch. 335, 339; Harris v. Sangston, 4 Md. Ch. 394, 396; Salmon v. Clagett, 3 Bl. 125, 132; Alexander v. Ghiselin, 5 G. 138, 186; Webster v. Hardisty, 28 Md. 592, 596; Dougherty v. Piet, 52 Md. 425, 429. The facts stated are alone to be considered as established, not the opinions or conclusions of law drawn by the defendants from the facts; Chase v. Manhardt, 1 Bl. 333, 335; see also Canal Co. v. Railroad Co., 4 G. & J. 1, 57, per Bland, Ch. sDoub v. Barnes, I Md. Ch. 127, 131-132; Doub v. Barnes, 4 G. 1, 20; Kent v. Ricards, 3 Md. Ch. 392, 397; compare Phila. Trust Co. v. Scott, 45 Md. 451, 453-454; Sisk v. Garey, 27 Md. 401, 420. "Salmon v. Clagett, 3 Bl. 125, 163; Bellona Co's. case, 3 Bl. 442, 445; Drury v. Roberts, 2 Md. Ch. 157, 160; Dougherty v. Piet, 52 Md. 425, 429; Hardy v. Summers, 10 G. & J. 316, 324- Compare Hutchins v. Hope, 12 G. & J. 244, 256-257; s. c, 7 G. 119, 123; State v. Northern Central R. Co., 18 Md. 193, 219-220; Flick- inger v. Hull, 5 G. 60, 77. §603-604 Injunctions. 708 §603. Hearing upon bill, answer and proofs. — By the act of 1835 the court was authorized, on application of any of the parties, to order testimony to be taken, such testimony at the hearing of the motion to dissolve to be considered in connection with the bill and answers. 1 It is now provided by the code that in all cases pending on motion to dissolve an in- junction, the court may at the instance of either party order testimony to be taken before such person, and upon such no- tice, and in such manner as the court in its discretion may di- rect, to be used at the hearing of such motion. 2 When the motion to dissolve is heard upon bill, answer and testimony and the bill shows a case entitling the plaintiff to an injunction, the injunction will not be dissolved if the equity of the bill is not denied by the answer. 3 The defendant cannot rely upon the . testimony for the purpose of denying or disproving the equity stated in the bill, where the answer is not a sufficient denial of the equity.* §604. Effect of the answer. — When the motion to dis- solve is heard upon bill, answer and proofs, the old rule as to the effect of an answer under oath still prevails; 1 the rule being that the responsive averments of the answer must be taken as 1 Act of 1835, ch. 380, sec. 8; this act was omitted from the code of i860; Steigerwald v. Winans, 17 Md. 62, 66; by the act of 1861, ch. 32, a similar provision was made. The act of 1872, ch. 157, enlarged the previous act to the present form in the code, art. 16, sec. 68. Equity rule 46; code, art. 16, sec. 226; provides that upon any petition, motion or other interlocutory application, for the hearing and determination of which evidence may be required, testimony may be taken. Rule 16 of the rules of the equity courts of Baltimore city pro- vides for taking depositions, and for obtaining a commission.- See in general Washington Univ. v. Green, 1 Md. Ch. 97, 103; Lamborn v. Covington Co., 2 Md. Ch. 409, 412. 2 Code, art. 16, sec. 68; Belt v. Blackburn, 28 Md. 227, 243-244. 3 Hamilton v. Whitridge, 11 Md. 128, 143-144, and cases cited; Boul- din v. Mayor, &c, 15 Md. 18, 20. 4 Bouldin v. Mayor, &c, 15 Md. 18, 20-22; the answer is not such a denial if it is not under oath; ante, sec. 596. [§604.] 'Voshell v. Hynson, 26 Md. 83, 93-94; Gelston v. Rullman, 15 Md. 260, 267; Bouldin v. Mayor, &c, 15 Md. 18, 21-22. See also Neurath v. Hecht, 62 Md. 221, 223-224. 709 Injunctions. §604-605 true, unless overcome by the testimony of two witnesses, or of one witness with corroborating circumstances. 2 The code provision that no answer, whether sworn to or not, shall be evidence against the plaintiff at the hearing of the cause, unless the plaintiff shall read such answer as evidence against the de- fendant making the same, shall not, it is expressly declared, ap- ply to motions to dissolve an injunction. 3 The equity rules further provide that an answer under oath may be used as an affidavit, with the same effect as heretofore, on a motion to dis- solve an injunction. 4 §605. Miscellaneous. — 'The motion is to dissolve unless cause be shown by the plaintiff; and therefore, on the hearing, the argument is opened and closed by the plaintiff. If the plaintiff fails to appear and show cause, the injunction may be dissolved on such default, without any consideration by the court of the bill and answer. 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. 1 The general rule is that upon motion to dissolve, the court may either dissolve the injunction; or re- fuse to dissolve it and continue it until the final hearing 2 or further order. 3 If upon the hearing of the motion to dissolve, 2 See ante, sec. 160. 3 Code, art. 16, sec. 146. 4 Equity rule 27; code, art. 16, sec. 147. ijones v. Magill, 1 Bl. 177, 181; see the course of procedure stated here. It is also said, page 182, that "in extraordinary cases, however, the course of the court has been varied to suit the emergency, or the peculiar circumstances." In Heck v. Vollmer, 29 Md. 507, 511, the de- cision in Jones v. Magill, 1 Bl. 177, 181, is quoted and followed. Com- pare Salmon v. Clagett, 3 Bl. 125, 160. Code, art. 66, sec. 17, makes special provision for the hearing of a motion to dissolve in cases of injunctions to stay any sale or any pro- ceedings under any sale of mortgaged premises under art. 66 of the code. ^Withers v. Denmead, 22 Md. 135, 147. See also Gibson v. Tilton, 1 Bl. 352, 355- 3 Hutchins v. Hope, 12 G. & J. 244, 256. In Duvall v. Waters, 1 Bl. 569, 585-586, the injunction was con- tinued in some respects and dissolved in others. In Abrahams v. Tappe, 60 Md. 317, 321, it was said that the in- §605-606 Injunctions. 710 an objection to the jurisdiction of the court be sustained, the proceedings are thereby terminated and the bill must be dis- missed. 4 The objection that the State ought to have been a party to the proceeding was held to be no ground upon which to claim a' dissolution ; the defect might be supplied at any time before the final hearing. 5 The plea of limitations relied on in the answer is not available on a motion to dissolve. 6 An ob- jection that proper exhibits were not filed with the bill, can- ,not be urged in support of a motion to dissolve when the de- fect was supplied before the hearing. 7 In case of any defect or deficiency in the bond, the practice has been to require fur- ther security, and not to dissolve the injunction for that cause. 8 Other proceedings. §606. When injunction is not granted ex parte. — If the court refuses to grant an injunction upon the case made by the bill, the plaintiff may at once take an appeal, 1 or may proceed with the case in expectation that the injunction will be granted in the further progress of the suit. Upon the coming in of the defendant's answer, the plaintiff may move for an injunction junction should be continued until an adjustment was made between the parties in respect to certain claims. ^Withers v. Denmead, 22 Md. 135, 147; see also Tartar v. Gibbs, 24 Md. 323, 338. "Lucas v. McBIair, 12 G. & J. 1, 16. 6 Hutchins v. Hope, 12 G. & J. 244, 257; White v. Flannigain, 1 Md. S2S, 550. Another instance (unimportant) of a question not properly aris- ing under a motion to dissolve is in Everett v. Avery, 19 Md. 136, 143. 'Butler v. Rahm, 46 Md. 541, 549. s Williams v. Hall, 1 Bl. 193, 194, note case. ^Gode, art. 5, sec. 29; ante, sec. 326. See Adams v. Michael, 38 Md. 123, 129-130, as to cases where the order refusing the injunction is passed without prejudice to any future application; and similarly when the order of refusal is, on ap- peal, affirmed. In some cases where an application for a preliminary injunction has been refused by the lower court, and on appeal the order was af- firmed, the bill has been dismissed; as in O'Brien v. Belt R. Co., 74 Md. 363, 364, 378; and other cases. 711 Injunctions. §606-609 upon the merits confessed therein, if merits be confessed; 2 or may proceed to take testimony. 8 §607. Final hearing on bill and answer.— When a final hearing of an injunction suit is had on bill and answer, 1 the latter is to be considered as true in regard to matters which are susceptible of proof by legitimate evidence ; and if any ma- terial matter charged in the bill has been neither denied nor admitted by the answer, it stands for naught. 2 If the answer denies the equity of the bill, the injunction, as a general rule, will be dissolved. 3 §608. Final hearing on bill, answer and proofs. — When the cause is heard upon bill, answer and testimony, the usual statutory rule applies that the answer shall not be evi- dence against the plaintiff at the hearing unless the plaintiff shall read the answer as evidence against the defendant making the same. 1 The only exceptions to this general rule as to an- swers are motions to dissolve an injunction, or to discharge a receiver. 2 Unless the bill requires the answer to be sworn to, it need not be under oath; for the purpose of putting the cause at issue, and upon final hearing, it is sufficient without oath. 3 §609. Staying operation of injunction by appeal. — Prior to the code of i860, a number of statutory provisions were made in regard to staying the operation and effect of an 2 Mayor, &c, v. Warren Co., 59 Md. 96, no. As in Stockett v. Bird, 18 Md. 484, 485; compare Binney's case, 2 Bl. 99, 104. 3 Under the provisions of code, art. 16, sec. 68; ante, sec. 603. a As to hearing on bill and answer, see ante, sees. 255-256. 2 Crowe v. Wilson, 65 Md. 479, 484, citing Warfield v. Gambrill, 1 G. & J- 503, 510-511; Dugan v. Gittings, 3 G. 138, 164-165; Briesch v. Mc- Cauley, 7 G. 189, 196, and Warren v. Twilley, 10 Md. 39; Estep v. Wat- kins, 1 Bl. 486, 488; Hill v. Bowie, 1 Bl. 593, 594. 3 Johnson Co. v. Henderson, 83 Md. 125, 126. [§608.] 1 Code, art. 16, sec. 146; see ante, sec. 163. 2 Burgess v. Darby, 79 Md., unreported; reported in 29 Atl. Rep. 605, 606; in this case the answer, not having been relied on by the plaintiff, could not be used as evidence against him. 3 Mahaney v. Lazier, 16 Md. 69, 73; but to sustain a motion to dis- solve, the answer must be under oath, whether required by the bill or not; ante, sec. 596. §609 Injunctions. . 712 injunction by an appeal by the party against whom the injunc- tion was issued. These statutes, 1 which related specially to ap- peals in injunction cases, were merged, in the code of i860, in the general provision that no appeal from any order should stay the execution or suspend the operation of such order, unless the party praying the appeal should give bond; and upon giving such bond, the appeal should stay the operation of all such orders in the same manner as ap- peals do from final decrees. 2 This provision was continued in the code of 1888. 3 Until the act of 1890, ch. 32, the effect of 'an appeal and the giving of bond by the defendant was neces- sarily to suspend the operation of the injunction; but by that act, if the court in its discretion shall decide that the case is not a proper one for a stay, it may pass an order directing that the order shall not be stayed by the appeal, or only so far, or on such terms, as it shall direct. 4 Under the provisions of the act of 1853, ch. 374, where bond was given, if on an appeal from an order granting an injunction, the order below was affirmed, and the thing on which the injunction was intended to operate should exist in specie, in the possession of the defendant, then the injunction was restored to its original vigor; or if the thing had been consumed or disposed of, then the plaintiff should proceed on the bond, given for the purpose of indemnifying him from all loss and injury which he might sustain because of the 1 In Alex. Ch. Pr. 82-84, the statutes and practice in force in 1839 are stated. In 1853 an act of that year, ch. 374, provided that in all cases where an appeal was taken from an order granting an injunction or ap- pointing a receiver, or from an order refusing to dissolve an injunction, the operation of the order should not be stayed unless the party appeal- ing gave bond; "and upon the giving of such bond, the appeal shall stay the operation of all such orders in the same manner as appeals do from final decrees." This act was stated and construed in Blondheim v. Moor,e, 11 Md. 365, 371-372. 2 Code of i860, art. 5, sec. 23. In Northern Central R. Co. v. Canton Co., 24 Md. 500, 506, it was said that the provision in this section of the code was a transcript of the act of 1853, ch. 374; see also Glenn v. Davis, 35 Md. 208, 220. 3 Code of 1888, art. 5, sec. 27; stated ante, sec. 341. 4 Act of 1890, ch. 32; ante, sec. 341; the act was applied in County Comms. v. School Comms., 77 Md. 283, 292, in which it was intimated that the action of the lower court was not reviewable on appeal. 713 Injunctions. §609-610 appeal. 6 Subject to the provisions of the act of 1890, ch. 32, the effect of an appeal, with bond, from an order granting an injunction is to stay the injunction and suspend its operation pending the appeal. 6 The operation and effect of the injunc- tion wholly and entirely ceases, until judgment is pronounced by the appellate court. 7 The effect of an appeal, with bond, from an order dissolving an injunction is to stay and suspend the operation of the order of dissolution, and to leave the order granting the injunction in full force as if no order dissolving the injunction had been passed. 8 §610. Violation of injunction. — The code provides that if any person against whom an injunction has been issued, shall violate the same after service thereof, or shall permit or connive at the violation thereof by any other person, the court, on notice of such violation, may issue attachment of contempt against such person, and if on proof the party be adjudged guil- ty of the contempt, he may be fined or imprisoned, or both, in the discretion of the court. 1 Special provisions are made in cases where the violation is waste, after injunction to stay waste; or if it be the transfer of monies, property or choses in action after injunction forbidding such transfer. 2 The proceeding to 5 Blondheim v. Moore, n Md. 365, 372; Everett v. State, 28 Md. 190, 205-206. See Hiss v. McCabe, 45 Md. 77, 82-83, m which after appealing and giving bond, the defendant completed the work which he was en- ' joined from proceeding with; the court said that it was physically im- possible for the injunction to be enforced, but that, if the plaintiff were entitled to relief, the court would grant an injunction in a different form and for a different purpose. 6 Gelston v. Sigmund, 27 Md. 34s, 352. 7 Blondheim v. Moore, 11 Md. 365, 372; Northern Central R. Co. v. Canton Co., 24 Md. 500, 506-507; Glenn v. Davis, 35 Md. 208, 220. 8 Hamilton v. State, 32 Md. 348, 353. ^Code, art. 16, sec. 63. Upon the general subject, see Beach on In- junctions, sees. 246-284; Rapalje on Contempt, sees. 40-52. Code, art. 16, sec. 65, provides that if any person under attach- ment for violating an injunction shall establish his innocence of the charge, he shall be discharged, with his costs, which shall be paid by the party complaining. 2 Code, art. 16, sec. 64. See ante, sec. 242, note 6, for an instance of a writ of sequestra- §610-611 Injunctions. 714 obtain an attachment is by petition under oath. While the process of attachment can in general be directed against no one but a defendant to the injunction bill, yet the interference of third persons with a matter in controversy in the court may be prevented. 3 In any case, if an attachment be applied for and issued for a violation of an injunction, the inquiry is whether the defendant has disobeyed the order of the court. 4 Unless an injunction order is void upon its face for lack of jurisdiction on the part of the court granting it, it must be obeyed, however erroneous the granting of it may have been. 5 It is held in cer- tain cases that persons who have actual knowledge of the exist- ence and effect of an injunction order are bound by it, though it is not personally served on them; 6 the general code provision is that "if any person against whom an injunction has been is- sued shall violate the same after service thereof," the court may issue attachment. 7 It is also provided, however, that all orders and writs issued under sections 177-180 of article 16 of the code shall bind any person or persons or corporation, against whom the same may be passed or issued, from the time of their knowl- edge thereof, by service or otherwise. 8 §611. Miscellaneous. — An abatement of a suit in which an injunction has been granted does not in strictness imme- diately and of itself dissolve the injunction, because being a don issued against a corporation because of its violation. of a writ of injunction. 3 Murdock's case, 2 Bl. 461, 486-488; see these pages more at length in reference to other matters touching the subject. On pages 486-487 the chancellor said that he knew of no case in which proofs and affi- davits in answer to the affidavit of the accused had been allowed; but code, art. 16, sees. 63-64, provides for proof. See in general Alex. Ch'. Pr. 91-94; Williamson v. Carnan, 1 G. & J. 184, 198, et seq. 4 Carlisle v. Stevenson, 3 Md. Ch. 499, 504; compare Bosley v. Sus- quehanna Canal, 3 Bl. 63, 67-68. See the instances in Winn v. Albert, 2 Md. Ch. 42, 53; compare Hopkins v. State, 53 Md. 502, 516; Earn- shaw v. Sun Mutual Society, 68 Md. 465, 475; Binney's case, 2 Bl. 99, 100. 5 Beach on Injunctions, 'sees. 246-247. "Rapalje on Contempt, sec. 46; compare Eakle v. Smith, 27 Md. 467, 482. 'Code, art. 16, sec. 63. 8 Code, art. 16, sec. 181; quoted in full, ante, sec. 575. 715 Injunctions. §611 judgment of the court, the injunction gives a present vested right which must stand until reversed or revoked by the court itself. In case of abatement, to prevent the representatives of the deceased plaintiffs from being taken by surprise, notice must be given to them to revive, or that the injunction be dis- solved. 1 Where a defendant asserts positively that it is not his intention to do a certain act, or to violate any particular right asserted by the plaintiff, and there is no evidence to show to the contrary, the court will not interfere by injunction. It will neither grant nor continue an injunction in the face of such 1 Walsh v. Smyth, 3 Bl. 9, 23. In Griffith v. Bronaugh, 1 Bl. 547, 548, and Billingslea v. Gilbert, 1 Bl. 566, 568, it was said that the death of either party, by which the suit became abated, would not operate as a dissolution of the injunc- tion. Nor would a general dismissal of the suit, without saying any- thing of the injunction, amount to a dissolution of it; Billingslea v. Gilbert, 1 Bl. 566, 568; but see Wagoner v. Wagoner, 77 Md. 189, 194. In Heck v. Vollmer, 29 Md. 507, 511, it is said: "There is another reason why the injunction should have been dissolved, or rather why it should not have been granted, and that is, that the bill was filed by a feme covert, in her own name, without the intervention of a next friend. * * * This is a defect, however, that may be obviated by proper amendment." In Brown v. Wallace, 2 Bl. 585, 602, it was said that where an in- junction had been refused by the chancellor it could not be granted by a county court upon the same case, or the reverse, in cases where the first bill was actually depending at the time the second application was made, or where, on hearing the parties, or by default, the one court had refused or dissolved the injunction upon the same case. But the chan- cellor did not see why a plaintiff might not take his chance, by a first ex parte application, of obtaining an injunction from each one of the courts having jurisdiction of the case, in like manner as he is allowed to apply to each one for a prohibition, without prejudice from having been refused by another of them; particularly as the statute then in force did not require an injunction to stay waste or proceedings at law to be filed before the subpoena issued. In reference to this last clause, however, see equity rule 4; code, art. 16, sec. 120. In Wood v. Bruce, 9 G. & J. 215, 218-219, it was held that if a party, having applied for an injunction, and being frustrated, should afterwards apply to another court of concurrent jurisdiction, upon the same grounds, without disclosing the first application, the party ag- grieved might apply in a summary way for relief; otherwise where the second application was not upon the same identical grounds as the first. See also Perm v. Brewer, 12 G. & J. 113, 116. §611 Injunctions. , 716 disclaimer. 2 Where an injunction was granted, and, after an- swer, was dissolved, a motion to reinstate was held equivalent to an application after bill and answer filed, and placed the par- ties in the same attitude as to the facts to be considered, as upon a motion to dissolve upon the coming in of an answer. 3 A dismissal of the bill ipso facto dissolves an injunction granted upon it* 2 Whalen v. Delashmutt, 59 Md. 250, 252. 3 State v. Northern Central R. Co., 18 Md. 193, 218-219; as to rein- statement in other cases, see Heck v. Vollmer, 29 Md. 507, 511, and the case there cited; Billingslea v. Gilbert, I Bl. 566, 568; Gray v. Veirs, 33 Md. 159, 160. 4 Wagoner v. Wagoner, 77 Md. 189, 194; compare Keerl v. Keerl, 28 Md. 157, 160; Meyer v. Devries, 64 Md. 532, 534. In Williamson v. Carnan, 1 G. & J. 184, 202, it is said, per Bland, Ch., that an injunction once granted continues in force until dissolved by the court by which it was awarded. CHAPTER XXX. RECEIVERS.* 612. Definition; nature of office 621. No extra-territorial func- 613. Effect upon property; tions. custody of law. 622. Bill for receiver. 614. Powers and duties; bond. 623. Procedure upon filing of 615. Power of sale. bill. 616. Possession of property by 624. Statutory provisions as to receiver. procedure. 617. Possession of leasehold 625. Selection of receiver. property. 626. Expenditures by receiver. 618. Suits by receivers. 627. When a receiver may be 619. Suits against receivers. discharged. 620. Interference with proper- 628. Nature of the order of dis- ty in receivers' hands. charge. Principles regulating the power of appointment. 629. The general principles. 633- Appointment before an- 630. Nature of the power of ap- swer. pointment. 634- Appointment against le- 631. Interest of the plaintiff. gal title. 632. Fraud or imminentdanger. In partnership CASES. 635. General principles. 636. Before dissolution. 637. Instances. 638. After dissolution; in gen- eral. 639. Winding up the business. 640. In case of death. In corporation cases. 641. 642. 643- The general equity juris- 644. diction. In cases of fraud, misman- 645. agement and collusion. Statutory dissolution in 646. case of insolvency. 647. Right of minority stock- holders. Powers of statutory re- ceivers. Receivers' certificates. Other statutory provis- ions. §612 ' Receivers. 718 Miscellaneous. 648. In cases of cotenancy. 650. In cases of mortgagee 649. In cases of creditor against mortgagor. against debtor. 651. Injunction and receiver. 652. Miscellaneous. §612. Definition; nature of office.— A receiver is an"< indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litiga- tion, pendente lite, when it does not seem reasonable to the court that either party should hold it. 1 A receiver is an officer of the court; the mere creature of the court; the hand or agent of the court. 2 He is clothed with no estate in the property of which he is receiver, but is a mere custodian of it for the court. 3 He is regarded as a trustee in respect to the possession, care and distribution of the property committed to his charge. 4 He is 1 High on Receivers, sec. 1. 2 Some or all of the above expressions have been used in Williamson v. Wilson, 1 Bl. 418, 421, 43s; Estate of Rachel Colvin, 3 Md. Ch. 278, 302; Ellfcott v. U. S. Ins. Co., 7 G. 307, 320; Ellicott v. Warford, 4 Md. 80, 85; Teackle v. Crosby, 14 Md. 14, 22; Hamill v. Hamill, 27 Md. 679, 687; Loney v. Peiuniman, 43 Md. 130, 132; Washington R. Co. v. Southern Md. R. Co., 55 Md. 153, 156; Hull v. Caughy, 66 Md. 104, 106; Day v. Postal Tel. Co., 66 Md. 354, 368; Gaither v. Stockbridge, 67 Md. 222, 224, 226; Lurman v. Hubner, 75 Md. 268, 273; Deford v. Macwatty, 82 Md. 168, 177-178. Compare ante, sec. 487. 3 Gaither v. Stockbridge, 67 Md. 222, 225; compare Frank v. Morri- son, 58 Md. 423, 440. In Estate of Rachel Colvin, 3 Md. Ch. 278, 303, it was said that except where the receiver's accounts and allowances are concerned, the proceedings in the cause are, as to him, res inter alios acta. ^Williamson v. Wilson, 1 Bl. 418, 436; in this case, page 437, it was said that on the death of a receiver, in so far as he had a mere duty to perform, like that of a sheriff in safely keeping his prisoners, noth- ing could devolve upon his representatives; but where he has acquired a qualified interest in the property, as bailee, or had sold and converted property into money, such property and money must be considered as having passed into the hands of his personal representatives. In this case the administrators of trie deceased receiver were required to render a full account of the property and money which had come into ' the hands of the receiver; and were also directed to deliver and pay over to the new receiver all such property and money as may have come into their hands; which being done, the bond of the deceased receiver was ordered to be given up to the administrator to be can- 719 Receivers. §612-613 supposed to be an indifferent person as between the parties to the cause, 5 and is appointed on behalf of all parties, and not on behalf of the plaintiff or defendant only, 6 or any one party ex- clusively. 7 §613. Effect upon property; custody of law.— The appointment of a receiver does not determine any right, or af- fect the title of either party, in any manner whatever. His hold- ing is the holding ,of the court for him from whom the possession was taken. 1 The appointment simply protects the property from injury or destruction un- til the rights of the parties can be further inquired into or adjudicated. 2 The function of a receiver is to receive celled, and the sureties were finally discharged; see pages 439-440. Compare the procedure in the event of the death of a trustee, ante, sec. 515, note 3. 5 Gaither v. Stockbridge, 67 Md. 222, 224. In Keene v. Gaehle, 56 Md. 343, 350, it was said that it was com- petent for the receiver, as attorney for a creditor, to undertake to pre- pare his claim and to file it; for any negligence, the attorney would be liable in a court of law. 6 Ellicott v. U. S. Ins. Go., 7 G. 307, 320; Ellicott v. Warford, 4 Md. 80, 85; Teackle v. Crosby, 14 Md. 14, 22; Estate of Rachel Colvin, 3 Md. Ch. 278, 302-303; Cockey v. Leister, 12 Md. 124, 129; Brown v. Hazle- hurst, 54 Md. 26, 30. 7 Washington R. Co. v. Southern Md. R. Co., 55 Md. 153, 156. In Hannah K. Chase's case, 1 Bl. 206, 213, it was said: "A receiv- er 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 property." See the remarks in Ellicott v. Warford, 4 Md. 80, 85, as to the representation of parties by the receiver in that case; compare Estate of Rachel Colvin, 3 Md. Ch. 278, 302, 303. 1 These propositions are stated, in whole or in part, in the following cases: Williamson v. Witeon, 1 Bl. 418, 421; Hannah K. Chase's case, 1 Bl. 206, 213, 232; Ellicott v. U. S. Ins. Co., 7 G. 307, 320; Estate of Rachel Colvin, 3 Md. Ch. 278, 299, 300, 302; Ellicott v. Warford, 4 Md. 80, 85; Teackle v. Crosby, 14 Md. 14, 22; Washington R. Co. v. South- ern Md. R. Co., 55 Md. 153, 156; Hull v. Caughy, 66 Md. 104, 106; Brown v. Hazlehurst, 54 Md. 26, 30. 2 Shannon v. Wright, 60 Md. 520, 523; this was said in reference to the appointment of a receiver of partnership assets, upon the applica- tion of a partner. In State v. Northern Central R. Co., 18 Md. 193, 214, it is said §613 Eeceivers. 720 and preserve the property or fund in litigation, pendente lite, when it is made apparent to the court that the rights of the par- ties concerned require such protection. His appointment does not change the title to, or create any lien upon, the property, in favor of any of the parties interested ; his holding being for the benefit of the party who may be ultimately determined to be en- titled; 3 and when that is ascertained, the receiver will be con- sidered as his receiver. 4 The fund or property entrusted to the care of a receiver is regarded as being in custodia legis to await the ultimate disposal thereof by the court, according to the rights and priorities of the parties concerned. The court itself has the care of the property by its receiver. 5 that the power of appointing receivers "is provisional only for the more speedy getting in of a party's estate an'd securing it for the benefit of such persons as may be entitled, and does not at all affect the right." In Thompson v. Phenix Ins. Co., 136 U. S. 287, 297, it" is said: "The title to property in the hands of a receiver is not in him, but in those for whose benefit he hold's it.- Nor in a legal sense is the prop- erty in his possession. It is in the possession of the court, by him as its officer." In Williamson v. Wilson, 1 BI. 418, 421, it is said that if any loss should happen, it must be borne by him from whom the property was taken, not by the party at whose instance the receiver was appointed. Compare Coekey v. Leister, 12 Md. 124, 129. 3 Gaither v. Stockbridge, 67'Md. 222, 224-225; Ellicott v. U. S. Ins. Co., 7 G. 307, 320. See also Washington R. Co. v. Southern Md. R. Co., 55 Md. 153, 156; Brown v. Hazlehurst, 54 Md. 26, 31. In Bodman v. Murphy, 35 Md. 154, 163, it was said that the prop- erty was "in charge of a receiver, whose office the law contemplates shall be temporary, and who is the mere hand of the court, holding for the benefit of those ultimately entitled." In Burroughs v. Gaither, 66 Md. 171, 184, the receivers were not appointed for a temporary purpose merely. The order gave them power to take possession of the estate, to manage it, and to receive and disburse its income, and required them to account for the same at least yearly, or oftener, if required. 4 Ellicott v. U. S. Ins. Co., 7 G. 307, 320; Ellicott v. War-ford, 4 Md. 80, 85; Teaekle v. Crosby, 14 Md. 14, 22-23. Compare Hannah K. Chase's case, 1 Bl. 206, 213; Henry v. Kaufman, 24 Md. 1, 10, and cases cited. 5 Gaither v. Stockbridge, 67 Md. 222, 224-225; Day v. Postal Tel Co 66 Md. 354, 368. In Hooper v. Central Trust Co., 81 Md. 559, 592, it is said that the appointment of a receiver vests in the court no absolute control over 721 Receivers. , §614 §614. Powers and duties; bond. — A receiver has no powers other than those conferred on him by the court, or derived from its established practice. 1 He has no authority to bind the trust estate by contract, without the authority of the court. All persons dealing with receivers do so at their peril and are bound to take notice of the incapacity of receivers to conclude a binding contract without the authority of the court. 2 Any person relying upon a transaction of the receiver for his protection, must show that what was done was done with the sanction of the court. 3 Being an officer of the court, a receiver must obey the orders of the court.* He must prevent the prop- erty handed over to him from being blended with his own; and should keep such clear and separate accounts of his transac- the property, and no general authority to displace vested contract liens; see post, sec. 646. In Burroughs v. Gaither, 66 Md. 171, 186, it was held that under the facts and emergency the court was clothed with all the powers of absolute ownership of the property. The receivers 'were authorized to borrow money on mortgage to raise funds to redeem the land from a sale made for taxes; see pages 186, 191. 1 Gaither v. Stockbridge, 67 Md. 222, 225; Loney v. Pemniman, 43 Md. 130, 132. In Cake v. Mohun, 164 U. S. 311, 315-316, it is said that although "a receiver has no authority as such, to continue and carry on the busi- ness of which he is appointed a receiver, there is a discretion on the part of the court to permit this to be done temporarily when the interests of the parties seem to require it. Under such circumstances the power of the receiver to incur obligations for supplies and materials incidental to the business follows as a necessary incident to the re- ceivership." See the proceedings in Diamond Match Co. v. Taylor, 83 Md. 394. In Everett v. Neff, 28 Md. 176, 186-187, it was said that the du- ties of the receivers were prescribed in the order of appointment, and by the provisions of the statute under which they were to act, and that neither of these gave the receivers authority to enter into or assent to a certain arrangement. 2 Chicago Deposit Co. v. McNulta, 153 U. S. SS4, 562; see the facts of this case. 3 Day v. Postal Telegraph Co., 66 Md. 354, 368. In Mish v. Main, 81 Md. 36, 45, it was said that the admissions of the receiver "do not affect or impair the rights of creditors, whose protection it was his duty to enforce." Compare the admissions by the executor in Webster v. Le Compte, 74 Md. 249, 260. 4 Hamill v. Hamill, 27 Md. 679, 687; Burroughs v. Bunnell, 70 Md. 18, 27. See also the remarks in Henry v. Kaufman, 24 Md. 1, 9, 11. 46 §614-615 Receivers. 722 tions as receiver as will enable him at all times, and immediate- ly, when called on, to show the amount of money and property in his hands. 5 A receiver is in no case permitted to take charge of the property without having first given bond with security, 8 which may be approved by the clerk. 7 §615. Power of sale. — The functions and powers of re- ceivers touching the sale of property committed to their charge, unless defined or regulated by statute, rest upon and are gov- erned by the orders of the court appointing them. The court ap- pointing a receiver to take possession of property, pending a litigation concerning the rights of the parties thereto, is vested with the power of selling the property in the receiver's hands, whenever such course becomes necessary to preserve the inter- ests of all parties. 1 The ordinary chancery receiver, as before 5 Williamson v. Wilson, i Bl. 418, 436; in this case, it is said, that if the receiver is in any respect delinquent as an officer of the court he may be proceeded against in a summary way by attachment; or his bond may be put in suit by scire facias in the court appointing him, or by an action at law, so as to charge him and his sureties. See also Andrews v. Scotton, 2 Bl. 629, 656. 6 Williamson v. Wilson, 1 Bl. 418, 422, 436; Andrews v. Scotton, 2 Bl. 629, 656. In Gephart v. Starrett, 47 Md. 396, 401, a receivership case under a local law for Allegany county, it was held that a provision of the statute requiring the receiver's bond to be approved by the court or a judge thereof was not a condition precedent to be complied with be- fore the court could act in the premises, but was directory merely; and . the subsequent act of the judge in approving the bond nunc pro tunc cured every objection. In High on Receivers, sec. 121 o, it is said that the receiver's ti- tle to and right to the possession of the property over which he is ap- pointed have relation back to the date of his appointment, and that his title will be upheld as against creditors levying upon the property between the date of the appointment and the filing of bond; see al- so sec. 136; but see post, sec. 616. 7 Code, art. 17, sec. 24. The usual condition of the bond is as follows: "That if the above bounden A. B. do and shall well and faithfully perform the trust re- posed in him by said order, or that may be reposed in him by any fu- ture order or decree in the premises, then the above obligation to be void;" see Carey's Forms, No. 780, pages 635-636. 1 High on Receivers, sees. 191-192. 723 Receivers. §615-616 stated, is clothed with no estate in the property, being a mere custodian of it for the court; 2 but by special authority he may become an officer to effect a sale of the property, if that be deemed necessary for the benefit of the parties concerned. 3 §616. Possession of property by receiver. — Prop- erty is not taken under the protection of the court by the order appointing a receiver and by the bonding of the latter; the summary jurisdiction of the court is not to be interposed until the property is taken charge of by the receiver. 1 The authori- ties speak of the appointment and possession by the receivers as necessary in order to place the property in the custody of the court. Thus in a case where receivers were not in possession of property at the time of its seizure under a distress, it was held that their mere appointment did not place the property, as against a stranger, in custodia legis; actual possession was nec- essary. 2 It is said that the appointment of a receiver of prop- erty does not, of itself, divest any one of possession of the prop- erty; it merely authorizes the receiver to demand, and to ac- cept, the possession when voluntarily delivered, or to take it when held by no one else. 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 possession, or to show cause to the contrary. 3 2 See ante, sec. 612. 3 Gaither v. Stockbridge, 67 Md. 222, 225. See the proceedings in Deford v. Macwatty, 82 Md. 168. In Williamson v. Wilson, 1 Bl. 418, 427-428, it is said: "This re- ceiver 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 further authority and directions will be given when applied for, and as circumstances may suggest and require." iFarmers' Bank v. Beaston, 7 G. & J. 421, 428; see the facts here. The rule elsewhere generally seems to be to the contrary; see High on Receivers, sees. 136, 137, 15T. 2 Everett v. Neff, 28 Md. 176, 187; on page 188, an English decision is quoted to the effect that "the receiver is, as between the parties to the suit, to be considered as appointed from the date of the order of refer- ence to the master, and after the date of that order the defendant was not at liberty to exercise any right of ownership upon the estate with- out the order of the court." ^Williamson v. Wilson, 1 Bl. 418, 424; Everett v. Neff, 28 Md. 176, §617 Receivers. 724 §617. Possession of leasehold property. — If the or- der of the court, under which the receiver acts, embraces lease- hold estate, it becomes his duty to take possession of it; but he does not, by taking such possession, become assignee of the term. He holds the leasehold as he would any other personal property involved, for and as the hand of the court. His duties and powers in this respect are very much more re- stricted than those of an assignee in bankruptcy or insolvency, who becomes, by operation of law, the assignee of the legal ti- tle to the unexpired term, unless he elects to reject it. 1 188; in the first cited case it was said that as regards third persons, who may have an interest in property ordered to be taken possession of by a receiver, they are allowed, in a summary way, to, come in and be ex- amined pro interesse suo. Compare High on Receivers, sees. 144-149. See Wiener v. Sturgiss, 79 Md. 271, in which funds in the hands of a receiver were claimed by other receivers, asserting title thereto; the proper procedure is stated. In Hamill v. Hamill, 27 Md. 679, 687, it was said that as the re- ceiver there had taken possession of certain property under a misap- prehension of his rights and duties, the court could 'order and require him to make restitution; see the procedure in this case. In Reeder v. Miachen, 57 Md. 56, 59-61, receivers of the property of certain defendants were appointed upon a bill by a creditor alleging among other things, that Reeder had, prior to the receivership, unlaw- fully removed certain coal from the possession of the defendants. The receivers afterwards filed a petition praying that Reeder be ordered to deliver the coal to them. Reeder having been made a defendant, and his rights having been put in issue by the allegations of the parties, "the court was not only called upon to decide the question of the right of the receivers to take possession of it, but to decide the question of the right of property in the coal, and to enforce obedience to its order requiring the coal to be delivered to the receivers.''" a Gaither v. Stockbridge, 67 Md. 222, 225-226; in this case an order appointing a receiver of an insolvent corporation, the lessee of certain premises, directed him to "take charge and possession of the goods, wares and merchandise, books, papers and effects'' of the corporation. The receiver took possession of the goods and sold them on the prem- ises. A few days afterwards, an instalment of rent fell due, and the landlord sought to compel the payment thereof by the receiver, con- tending that the receiver, by entering on the demised premises to take possession and sell the goods of the lessee, made himself liable as as- signee or tenant of the premises. It was held that the receiver did not become such assignee. On page 227 it is said: "If the receiver here had claimed and entered upon the premises, not only as receiver, but as assignee of all the property of the tenant, * * * then there 725 Receivers. §618 §618. Suits by receivers. — Independently of statute, it has been held that a receiver may sue in his own name upon a cause of action arising before his appointment, if it appears that he is authorized to do so by the court. 1 Where a receiver was authorized to prosecute suits at law and in equity, this was held a sufficient authority for him to sue in his own name. 2 By the provisions of the code, a receiver of a corporation is authorized to sue either in his own name or in the name of the corpora- tion. 3 Where a statute gives a receiver a right to sue, it is not would have been some ground for the contention of the appellant (the landlord) under the decision of Horwitz v. Davis," 16 Md. 313, 317. Quoted in Quincy R. Co. v. Humphreys, 14s U. S. 82, 98. In U. S. Trust Co. v. Wabash Railway, 150 U. S. 287, 299-300, the question was whether the receivers of a railway took possession of certain leased lines under such circumstances as to charge them with the payment of rental so long as they retained possession of the lines. "The general rule applicable tothis class of cases is undisputed, that an assignee or receiver is not bound to adopt the contracts, accept the leases, or otherwise step into the shoes of his assignor, if in his opinion it would be unprofitable or undesirable to do so ; and he is entitled to a reasonable time to elect whether to adopt or to repudiate" such con- tracts. If he elects to adopt a lease, the receiver becomes vested with the title to the leasehold interest, and a privity of estate is thereby created between the lessor and the receiver, by which the latter be- comes liable upon the covenant to pay rent." See also Quincy R. Co. v. Humphreys, 14s U. S. 82, 100-101. 1 Hayes v. Brotzman, 46 Md. 519, 524; Frank v. Morrison, 58 Md. 423, 440; compare High on Receivers, sees. 208-211. In Hayes v. Brotzman, 46 Md. 519, 525, 526, it was also said that a receiver substituted in the place and stead of a previous one is clothed with the same authority to sue ; and that an order in full force direct- ing suit to be brought, must be taken as establishing, at least prima facie, that the necessary proceedings were had to give jurisdiction to the court appointing the receiver. See also State v. Wilmer, 65 Md. 178, 189, as to a suit by a re- ceiver in the name of an executor. 2 Frank v. Morrison, 58 Md. 423, 440; see the terms of the decree in this case and in Hayes v. Brotzman, 46 Md. 519, 525. 3 Code, art. 23, sec. 274; the section is in full as follows: "Whenever a receiver of the property or effects of a corporation shall be appointed before the dissolution or afterwards, new suits may be brought and carried on by any such receivers, either in their own names and ca- pacities as such receivers, or in the name of the corporation' for which they shall have been appointed; but no new suit shall be brought in the name of a corporation after it shall have been dissolved, or after the §618-619 Receivers. 726 necessary to show special authority from the court appointing him. 4 §619. Suits against receivers. — A receiver being an officer of the court, acting under its direction, and in all things subject to its authority, it is contrary to the established doctrine of courts of equity to permit him to be made a party defendant to litigation, unless by consent of the court appointing him. It is, therefore, necessary that a person desiring to bring suit against a receiver in his official capacity should first obtain leave of the court by which he was appointed. A person bring- ing suit against a receiver without leave of the court is guilty of a contempt of court. 1 Actions against a receiver are in law actions against the receivership, or the funds in the hands of the receiver, and his contracts, misfeasances, negligences and lia- bilities are official and not personal, and a judgment against him as receiver is payable only from the funds in his hands. 2 expiration of its charter;" quoted in Hayes v. Brotzman, 46 Md. 519,. 525-526. See also Lycoming Co. v. Langley, 62 Md. 196, 203. By sec. 275 it is provided: "No suit 'commenced in the name of any such receiver shall be abated by his removal or death; but the same may be continued in the name of his successor, or of the corpora- tion, if its charter has not expired or been dissolved, as may be di- rected by the court in which the suit shall be pending." Compare High on Receivers, sec. 213. 4 Hayes v. Brotzman, 46 Md. 519, 526; and see Everett v. State, 28 Md. 190, 207-208, in which it was also held that the receivers in that case would have been negligent in the discharge of their duties if they had failed to sue; see also page 209. iHigh on Receivers, sees. 254, 395 a. 2 Texas R. Co. v. Cox, 145 U. S. 593, 601. The rule that an action at law cannot be prosecuted against a receiver, except by leave of the court appointing him, has been chang- ed by statute as to receivers appointed by the federal courts; see Texas R. Co. v. Cox, 145 U. S. 593, 601-602; McNulta v. Lockridge, 141 U. S. 327, 330; High on Receivers, sec. 395, b. In Keene v. Gaehle, 56 Md. 343, 348, receivers paid out certain funds under an auditor's account finally ratified by the court. It was held that an action could not be successfully maintained against the receivers, in their character as such, for any payments thus made by them. 727 Eeceivers. §620 §620. Interference with property in receivers' hands. — The court never allows any person to interfere with money or property in the hands of its receivers, without its leave; whether it is done by the consent or submission of the re- ceivers, or by compulsory process against them. The court must keep a strict watch over the property in order to preserve entire jurisdiction over the whole matter. 1 After a receiver has been appointed, and has taken the rightful possession of property it is said to be a contempt of court for a third person to attempt to deprive him of that possession by force, or even by a suit or other proceeding, without the permission of the court by which the receiver was appointed. 2 The rule applies without regard to the fact whether such party claims para- mount to, or under, the right which the receiver was appointed to protect. 3 Property in the custody of the court cannot be dis- *Day v. Postal Tel. Co., 66 Md. 354, 368; after a receiver has been ap- pointed for a corporation, nothing can be done whereby the status of its affairs can be changed, or its rights in any way lessened or preju- diced, without the sanction of the court. On page 369, it was held that the property must be taken to stand as it stood at the time of filing the bill, notwithstanding the attempt to change the relation of the parties to it. In Farmers' Bank v. Beaston, 7 G. & J. 421, 428, as stated in Cockey v. Leister, 12 M'd. 124, 129, it was held that an attachment would not lie to affect funds in the hands of a receiver; see also Glenn v. Gill, 2 Md. 1, 18-19; Hodge and McLane on Attachment, sees. 163, i6 S . 2 Everett v. Neff, 28 Md. 176, 187-188; see also High on Receivers, sees. 163-164. 3 Day v. Postal Tel. Co., 66 Md. 354, 368. Compare Brady v. John- son, 75 Md. 44s, 457; see also ante, sec. 488. As to the enforcement of a claim for taxes against a receiver see Mayor, &c, v. Chase, 2 G. & J. 376, 381. In Ellicott v. U. S. Ins. Co., 7 G 307, 319-321, the object of a decree appointing receivers appeared to be to provide for the safe keeping of the property of the defendant corporation. It did not appear that the intent was to make a distribution of the funds, and no notice to creditors to file claims was ordered to be given. It was held that this decree imposed no restrictions upon creditors in prose- cuting their claims against the corporation, and that a judgment ob- tained after the appointment of the receivers was as much a lien on the real estate of the corporation as if appointment of receivers had not been made. Stated in Applegarth v. Russell, 25 Md. 317, 321-322. In this same case of Ellicott v. U. S. Ins. Co., 7 G. 307, 319, it §620-621 Eeceivbes. 728 trained upon without the permission of the court by which the receiver was appointed.* Where a receiver is appointed to take charge of the goods of a lessee, and the goods are on the de- mised premises at or after the time when the rent becomes due, and the landlord seeks to exercise his right to distrain, and the only impediment to its exercise is the possession of the court by its receiver, it seems to be the rule to order the receiver to pay the arrears of rent out of the proceeds of the property, or to per- mit the landlord to proceed with his distress, notwithstanding the possession of the receiver. 6 §621. No extra-territorial functions. — A receiver has no extra-territorial power of official action, and cannot, as a matter of right, go into a foreign State or jurisdiction and there institute a suit for the recovery of demands due to the person or estate subject to his receivership. 1 The functions and powers of a receiver for purposes of litigation are held to be limited to the courts of the State within which he is appointed, and the prin- ciples of comity between the States do not apply, and will not warrant a receiver in bringing an action in a foreign court or jurisdiction. 2 is said that the proper decree in the case, which was one by a creditor for the appointment of a receiver for an insolvent corporation to dis- tribute the assets among creditors, should have stated the object of the decree to have been that it might make an equitable distribution; and the decree should have directed the receivers to give notice to the creditors to file their claims. Had such a decree been made, the court would have enjoined any creditor who should institute or contin- ue any suit at law for the recovery of a judgment on his claim; and if obtained, although not enjoined, such judgment would be rejected as a lien on the property in the hands of the receiver. See also Rhodes v. Amsinck, 38 Md. 34s, 356. "Everett v. Neff, 28 Md. 176, 187. 5 Gaither v. Stockbridge, 67 Md. 222, 226; compare Everett v. State, 28 Md. 190, 208; and see Merfeld v. Fox, 81 Md. 80. 1 High on Receivers, sec. 239: see also sees. 240-244 o for illustrations and qualifications of the general rule. 2 Day v. Postal Tel. Co., 66 Md. 354, 360; Bartlett v. Wilbur, 53 Md. 485, 494-495; Lycoming Co. v. Langley, 62 Md. 196, 202; in the first case the bill should have been dismissed, or perhaps retained to await the result of another pending suit. See also Loney v. Penniman, 43 Md. 130, 133; State v. Northern Central R. Co., 18 Md. 193, 216-217. In Bartlett v. Wilbur, 53 Md. 485, 495, it is said that in some 729 Receivers. §622 §622. Bill for receiver. — The principles stated in pre- ceding sections in regard to a bill for an injunction, apply also, in general, to a bill for a receiver. Thus the rule requiring a clear statement of facts, is applied in bills for the appointment of receivers; 1 so also the rule as to filing exhibits, 2 and requiring an affidavit to the bill. 3 If any special order, such as an order appointing a receiver, be required, pending the suit, it shall be specially prayed for in the prayer for relief, 4 but need not be repeated in the prayer for process. 5 It is indispensably neces- sary, when an application for a receiver is made, either by bill, States a non-resident receiver has been permitted, upon the principle of comity, to file claims and receive money due the estate. In Lycoming Co. v. Langley, 62 Md. 196, 202-203, the suit was brought in the name of a Pennsylvania corporation for the use of its receiver appointed by a court in that State. The suit not being by the receiver in his official capacity the general rule did not apply. If the decree of the Pennsylvania court appointing the receiver had also dissolved the corporation, the suit could not have been maintained in its name. In Day v. Postal Tel. Co., 66 Md. 354, 369, it was said that receiv- ers appointed by a court in New York had no extra-territorial power over the property in this State; but were entitled to receive certain surplus proceeds of sale. To the same effect in part is Failey v. Fee, 83 Md. 83, 98. In Failey v. Fee, 83 Md. 83, 91, a foreign receiver of a corpora- tion filed a petition in a pending cause, and, the decision in the lower court being against him, prosecuted an appeal to the court of appeals. In Loney v. Penniman, 43 Md. 130, the receiver of a firm of resi- dents, parties to the proceedings, sold to P. a number of debts due the firm, including certain ones due by non-resident debtors. It was held that the court had power to facilitate the collection of these debts by compelling the firm to assign all their right and title thereto to P., so as to vest the same in him in order that he might sue upon them, the receiver having no right to sue in a foreign jurisdiction. 1 See ante, sees. 580-581. 2 Haight v. Burr, 19 Md. 130, 135; see the cases cited ante, sees. 582-583. 3 Williamson v. Wilson, 1 Bl. 418, 422; see the cases cited ante, sec. 585; and compare sec. 89, note 6. The act of 1835, ch. 346, sec. 3, provided that it should be com- petent for the court to require bond to be given by the plaintiff in all oases where a receiver was appointed. "Equity rule 15; code, art. 16, sec. 133. 5 Equity rule 16; code, art. 16, sec. 134. §622-623 Receivers. 730 or by petition subsequently filed, that a sufficient foundation should be laid by stating facts which will authorize the interfer- ence of the court in that form. 6 Thug, it is not sufficient that the bill should allege that the rents of an estate are in jeopardy; it must be shown how they are jeopardized. 7 Nor should the case be set forth merely upon information. 8 §623. Procedure upon filing of bill. — When the bill prays for an injunction and receiver, the court may grant the injunction, and set the application, for a receiver for hearing on a certain day, after notice to the defendant; 1 or may order that a receiver be appointed unless cause to the contrary be shown on or before a certain day. 2 If in such case the defendant files his answer before the hearing, it will be considered by the court below and on appeal. 3 If the application is heard upon bill and answer, the averments of the latter are to be taken as true. 4 When a receiver is appointed ex parte, a motion to rescind is always heard on short notice. 5 If the motion is heard upon the averments of the bill and answer, the answer is taken as true, so far as responsive, and if it denies the allega- tions of the bill, the order of appointment must be rescinded, 8 "Clark v. Ridgely, I Md. Ch. 70, 72. 7 Knighton v. Young, 22 Md. 359, 372. 8 Blondlieim v. Moore, 11 Md. 365, 374-375. 1 As in Katz v. Brewington, 71 Md. 79, 81; in this case the order set- ting the application for a receiver for hearing directed that notice should be given to the defendant, but the notice was not served in due time. The parties, however, appeared by counsel on the day fixed. The court said (page 82), that the defendant might have objected to the motion for a receiver on the ground that he had not received the required notice. 2 As in Abbott v. Balto. &c, Steam Packet Co., 4 Md. Ch. 310, 311. 3 Katz v. Brewington, 71 Md. 79, 82. 4 B. & O. R. Co. v. Cannon, 72 Md. 493, 495, 498; see also Heflebower v. Buck, 64 Md. 15, 21-22; McKaig v. James, 66 Md. 583, 584. 5 Williamson v. Wilson, 1 Bl. 418, 422, 424. In Baltimore city the usual form of order is as follows: "but liberty is hereby reserved to the defendants to move for the rescinding of this order at any time after filing their answers to the said bill, on giving to the plaintiff five days' previous notice of such motion." See Carey's Forms, No. 779, p. 634. 6 Colvin v. Warford, 17 Md. 433, 435; Furlong v. Edwards, 3 Md. 99,, 731 Receivers. §623-624 as the equity upon which the court proceeded in appointing a receiver is removed. 7 §624. Statutory provisions as to procedure. — The statutory provisions affecting the procedure in cases of applica- tions for receivers are as follows : in all cases pending on mo- tion to appoint a receiver, or motion to rescind an order ap- pointing a receiver, the court may, at the instance of either party, order testimony to be taken. 1 The code provides that it shall not be necessary for any defendant to make oath to his answer unless required by the plaintiff, nor shall any answer, whether sworn to or not, be evidence against the plaintiff at the hearing of the cause unless the plaintiff shall read such answer as evidence against the defendant making the same; but this does not apply to motions to discharge a receiver. 2 An answer under oath may be used with the same effect as heretofore on a motion to appoint or discharge a receiver. 3 Certain provisions are also made in corporation cases. 1 An appeal lies from an order appointing a receiver. 5 It is also provided that "the court may, at any stage of any cause or matter concerning property, real or personal, on application, or of its own motion, pass such order as to it may seem fit, with regard to the posses- sion of the same, pendente lite, or the receipt of the income there- of, on such terms preliminary thereto (as to security, &c.,) as to it may seem just, subject to the same right to move for its dis- charge, and the same right of appeal, as is given in the preced- ing section." 6 The preceding section referred to has been heretofore quoted. 7 All orders issued under the above pro- visions shall bind any person or persons or corporations, against whom the same may be passed or issued, from the time 7 Drury v. Roberts, 2 Md. Ch. 157, 169. 1 Code, art. 16, sec. 68; compare ante, sec. 603. 2 Code, art. 16, sec. 146; see ante, sees. 596-597- 3 Equity rule 27; code, art. 16, sec. 147. 4 Code, art. 23, sec. 268, &c. 5 Code, art. 5, sec. 25; see ante, sec. 319. As to the effect of an ap- peal with bond, and an order of affirmance, see ante, sec. 609; Everett v. State, 28 Md. 190, 206. "Code, art. 16, sec. 179- 'See ante, sec. 575. §624-626 Receivers. 732 when the passing or issuing of the same shall come to the knowledge of such person or persons, or corporation, by serv- ice or otherwise. 8 §625. Selection of receiver. — When a receiver is ap- pointed before answer, the selection 1 of the person to be ap- pointed must be made by the court upon the ex parte recom- mendation of the party applying for the appointment. After the appointment, however, the selection of a suitable person, it is said, still remains open for consideration. 2 The recom- mendations of those most interested, -and who are most likely to sustain injury without an appointment of a receiver, have generally been most regarded. 3 §626. Expenditures by receiver. — A receiver has no right to pay out funds in his hands without the order of the court by which he was appointed. 1 With respect to expendi- 8 Code, art. 16, sec. 181. 1 See in general High on Receivers, sees. 63-81. 2 Williamson v. Wilson, 1 Bl. 418, 427; in this case, the person ap- pointed on an ex parte application was soon afterwards removed, be- cause not impartial between the parties. It is also< said that the being a near relative of either party is not in itself an absolute disqualifica- tion, but it must be allowed to have its weight when connected with other circumstances. In Brown v. C. & O. Canal Co., 73 Md. 567, 585, it was said by Alvey, C. J., in the lower court: "In the selection of receivers I shall aim to get men of practical knowledge and experience in the operation of the canal, and of reliable judgment as to the future prospects of the work. They must, of course, be impartial as between all the parties concerned and the conflicting interests involved; and as they will be the officers and representatives of the court, I shall require that they be residents of this State, and subject at all times to the immediate control and jurisdiction of the court." In Burroughs v. Qaither, 66 Md. 171, 186, it was said that the lower court should have appointed a practical farmer or man of busi- ness as trustee, instead of appointing two lawyers as receivers. The property was a large farm. 3 Williamson v. Wilson, 1 Bl. 418, 427. Compare H. K. Chase's case, 1 Bl. 206, 214-215. [§626.] iHenry v. Kaufman. 24 Md. 1, 11; compare the similar rule with respect to trustees; ante, sec. 515. 733 Receivers. §626-627 tures the general rule is that he will not be permitted to lay out more than a small sum at his own discretion in the preservation or improvement of the property under his charge. He should in all cases where it is practicable or the circumstances of the case will permit, before involving the estate in expense, apply to the court for authority for so doing. But this general rule should not be so rigidly enforced as to work injustice when the receiver has acted in good faith, and under such circumstances as will enable the court to see that if previous authority had been applied for, it would have been granted. Each case depends upon its special circumstances and requirements. 2 If the re- ceiver refuses to pay out funds which he is directed to disburse, the court which appointed him alone has such summary con- trol over him as can compel him to obey. 3 When the property of private corporations or of individuals has been placed in the hands of a receiver, all expenses for safe keeping and preserva- tion are properly payable out of the income, if there be any, or if there be none, then out of the proceeds of the corpus of the es- tate when sold. 4 §627. When a receiver may be discharged. —With respect to the final discharge of a receiver, the rule is, in general, that when the necessity for the office ceases to exist 1 the office 2 Brawn v. Hazlehurst, 54 Md. 26, 28-29; see the instances on page 29. In this case objection was made to the allowance to a receiver of a sum paid by him for fire insurance policies, without having first obtained an order of court authorizing the payment. The order of the court below, disallowing the sum, was reversed; stated in Gable v. Scott, 56 Md. 176, 181, and quoted in Thompson v. Phenix Ins. Co., 136 U. S. 287, 294-295. See also Chicago Deposit Co. v. McNulta, 153 U. S. 554- 3 Henry v. Kaufman, 24 Md. 1, n. *Hooper v. Central Trust Co., 81 Md. 559, 591; but this necessary power by no means includes authority in such instances to allow the creation of liens through the medium of receiver's certificates, which will take priority over existing antecedent liens. Instances of allow- ances are in Holloway v. Turner, 61 Md. 217, 220; Matthews v. Adams, 84 Md. . In Estate of Rachel Colvin, 4 Md. Ch. 126, 127, it was held that expenses for stationery do not come within the range of disbursements which a receiver is permitted to make at the expense of the estate. 1 Estate of Rachel Colvin, 3 Md. Ch. 278, 297. §627-628 Receivers. 734 itself must terminate and the receiver be discharged. He will not, however, be discharged until the object for which he was appointed has been fully accomplished, or until the court is sat- isfied that the exigency calling for a receiver has passed. 2 The functions of a receiver usually terminate with the termination of the litigation in which he was appointed. But, nevertheless, he is still amenable to the court as its officer until he has complied with its directions as to the disposal of the funds which he has received during the course of his receivership. 3 A receiver must retire from his office, and give up the property committed to his custody, whenever required to do so by the court, whether or not the power to discharge him was reserved in the order of appointment. 4 §628. Nature of the order of discharge. — An or- der discharging a receiver, before final decree, does not adjudi- cate anything affecting the rights of the parties in interest. It 2 High on Receivers, sees. 832, 835. 3 High on Receivers, sec. 833. In Estate of Rachel Colvin, 3 Md. Ch. 278, 294-298, (affirmed in Cain v. Warford, 7 Md. 282, 286,) a receiver had been appointed of the personal estate of a lunatic. Upon the death of the lunatic, it was held that the jurisdiction in equity remained only to the extent and for the purpose of having the necessary accounts taken, and directing the fund or estate to be paid over to the parties entitled, and that upon the appointment of an administrator pendente lite by the orphans' court, the receiver should be discharged. See also Ellicott v. Warford, 4 Md. 80, 83-85. In Henry v. Kaufman, 24 Md. 1, 9-1 1, a receiver of the assets of a party had certain proceeds of sale in his hands, and the receiver was . thereafter appointed the permanent trustee in insolvency of the party, and thereby became entitled to the fund in the latter capacity. It was held that the jurisdiction of the equity court appointing the receiver continued to the extent of haying power to pass orders necessary to transfer the fund, including an order to bring the money into court, and that the receiver was not immediately discharged from liability to the court appointing him by his appointment as permanent trustee. See also the cases cited on page 10. 4 Estate of Rachel Oolvin, 3 Md. Ch. 278, 303; in this case the re- ceiver entered an appeal from the order discharging him, and filed an appeal bond. The chancellor held that this would not prevent the en- forcement of the order by attachment; but as the receiver disclaimed any intention of disregarding the authority of the court, an order was # passed directing compliance with the previous order, and providing, in case of refusal to obey, that a writ of attachment should issue. 735 Eeceivers. §628 operates only as a release of the court's hold upon the property by the hand of its receiver, as being no longer necessary for the purpose which induced the appointment. 1 As his appointment determines no right as between the parties, and as his holding is simply that of the court, his discharge forms no ground of appeal, 2 either by the receiver himself, 3 or by the parties in in- terest 4 The receiver has no more right to ask for the revision of an order removing him from his office than an entire stranger to a cause would have. It is nothing to him what the court does with the property, provided he is discharged from his re- sponsibility as receiver. 5 1 Cam v. Warford, 7 Md. 282, 286; if afterwards the preservation or management of the property should require it, the court might again exercise the power of appointment. To the same effect see Estate of Rachel Colvin, 3 Md. Ch. 278, 299-300; Hull v. Caughy, 66 Md. 104, 106; Johns v. Hodges, 62 Md. S2S, 541-542. 2 See ante, sec. 310. 3 Ellicott v. Warford, 4 Md. 8o, 85-86; Teackle v. Crosby, 14 Md. 14, 22. 4 Cain v. Warford, 7 Md. 282, 286; Washington R. Co. v. Southern Md. R. Co., 55 Md. 153, 156. In Washington R. Co. v. Southern Md. R. Co., 55 Md. 153, 155, receivers were appointed upon the application of creditors. There- after, upon application of certain other creditors, the receivers were discharged, but the bill was retained for the benefit of those creditors who had not united in the application for the discharge, with liberty to proceed to establish their claims, and a bond was accepted by the court for the payment of the debt due an objecting creditor. In Johns v. Hodges, 62 Md. 525, 531-533, 541-542, a bill was filed • by caveators of a will conveying real estate, for the appointment of re- ceivers pending the controversy as to the validity of the will, and re- ceivers were appointed. Thereafter the will was refused probate, and the caveators then urged that they were entitled to the possession as prima facie entitled to the property. The lower court adopted this view and discharged the receivers; on appeal it was held that in so doing the court was fully justifiedby authority. It was not a final ad- judication that the caveators were entitled to the property, but as the case stood they were entitled to the possession. In Ellicott v. Warford, 4 Md. 80, 86; it was said that "the re- ceiver was removed or dismissed, and when the appeal was taken he was functus officio." In Burroughs v. Bunnell, 70 Md. 18, 28, it was argued that upon the death of one of two co-receivers the survivor was functus officio. The court subsequently ratified the acts of the surviving receiver. B Estate of Rachel Colvin, 3 Md. Ch. 278, 302. §629 Receivers. 736 Principles regulating the power of appointment. §629. The general principles. — In the leading case in Maryland upon the subject of the appointment of receivers the following propositions are declared: 1 i. That the power of appointment is a delicate one, and to be exercised with great circumspection f 2. That it must appear that the claimant has a title to the property, and the court must be satisfied, by affidavit, that a receiver is necessary to preserve the property; 3 3. That there is no case in which the court appoints a receiver merely because the measure can do no harm; 4 4. That fraud or imminent danger, if the intermediate pos- session should not be taken by the court, must be clearly proved ; 5 5. That unless the necessity be of the most stringent character the court will not appoint until the defendant is first heard in response to the application. 6 ^■Blond'heim v. Moore, II Md. 365, 374. Some or all oi these prop- ositions are approved in numerous subsequent cases; see Triebert v. Burgess, 11 Md. 452, 461; Haight v. Burr, 19 Md. 130, 134; Voshell v. Hynson, 26 Md. 83, 92-93; B. & O. R. Co. v. Cannon, 72 Md. 493, 500. In Potneroy, Eq. Jur. sec. 1331, note 3, it is said that these rules have been frequently quoted as a correct generalization. They, how- ever, "must be taken with some reservations; they are certainly too Strang to be of universal application; especially the fourth. There are classes of cases in which a receiver is appointed almost as a matter of course, although no fraud or imminent danger is proved." In High on Receivers the rules are not quoted. In Beach, Eq. Pr. sec. 720, note, they are given in full, but are attributed to a case in another ' State. 2 See post, sec. 630. 3 See post, sec. 631. *This proposition is also found in Clark v. Ridgely, 1 Md. Ch. 70, 71 ; Thompson v. Diffenderfer, 1 Md. Ch. 489, 493-494. 5 See post, sec. 632; in some cases the word "intermediate" is used, and in other cases "immediate." 6 See post, sec. 633. In Frostburg Assn. v. Stark, 47 Md. 338, 345, it is said that al- though the general principles which govern courts of equity, in grant- ing injunctions and in the appointment of receivers may be considered well settled, yet it is not easy to lay down a positive or unvarying rule applicable to all cases. 737 Receivers. §630-631 §630. Nature of the power of appointment. — There are few powers exercised by a court of chancery which require greater caution than the power of appointing receivers. 1 It is a discretionary power, 2 and a delicate one, to be exercised with great circumspection, 3 and only under special and peculiar cir- cumstances requiring summary relief. 4 It is a high power, never exercised where it is likely to produce irreparable injus- tice or injury to private rights, or where there exists any other safe or expedient remedy. 5 In the exercise of a jurisdiction so summary in its character, and' which deprives one of his prop- erty without a hearing, upon a mere ex parte application, courts cannot be too cautious, otherwise an injury may be done the de- fendant in many cases, for which the subsequent restoration of the property may afford no adequate compensation. 6 §631. Interest of the plaintiff. — With respect to the interest of the plaintiff, the rule is that it must appear that the claimant has a title to the property. 1 The application for the appointment of a receiver can only be made by those who have an acknowledged interest in the subject-matter; or where there is strong reason to believe that the party asking for the receiver will recover. 2 *Estate of Rachel Colvin, 3 Md. Ch. 278, 301. 2 Steinberger v. Independent Assn., 85 Md. — ; Davis v. U. S. Elec- tric Co., n Md. 35, 40; Frostburg Assn. v. Stark, 47 Md. 338, 345; State v. Northern Central R. Co., 18 Md. 193, 214; High on Receivers, sec. 7; Pomeroy, Eq. Jur. sec. 1331. 3 Davis v. U. S. Electric Co., 7y Md. 35, 40; B. & O. R. Co. v. Can- non, 72 Md. 493, 500; Brick Co. v. Robinson, 55 Md. 410, 418; Blond- heim v. Moore, 11 Md. 365, 374; Thompson v. Diffenderfer, 1 Md. Ch. 489, 494- 4 Furlong v. Edwards, 3 Md. 99, 112. 'Speights v. Peters, 9 G. 472, 476; Estate of Rachel Colvin, 3 Md. Ch. 278, 301. "Frostburg Assn. v. Stark, 47 Md. 338, 345. [§63i.J iBlondheim v. Moore, 11 Md. 36s, 374; Clark v. Ridgely, 1 Md. Ch. 70, 71; Voshell v. Hynson, 26 Md. 83, 92; B. & O. R. Co. v. Cannon, 77 Md. 493, 500. See also Frostburg Assn. v. Stark, 47 Md. 338, 345; High on Receivers, sees. 11 and 12. 2 Hannah K. Chase's case, 1 Bl. 206, 213; in this case the plaintiff sought to recover dower in certain lands, the defendant denying that the deceased husband had such an interest in the property as entitled 47 §632 Receivers. 738 §632. Fraud or imminent danger. — One of the rules laid down in the leading case 1 in Maryland, is that to authorize the appointment of a receiver, fraud or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved. 2 The authority and duty of the court to ap- point, or not to appoint, a receiver depends upon the question whether the property is or is not in danger in the hands of the party who may at the time be in possession. 3 The immediate the plaintiff to dower. Pending the suit, the widow applied for a re- ceiver to collect the rents and profits; the chancellor held that the plaintiff had sufficient presumption of title to warrant the application. It was objected in this case that the claim of the widow did not ex- tend to the whole, but only to one-third of the property in contro- versy; compare Cole v. O'Neill, 3 Md. Ch. 174, 185. iBlondheim v. Moore, 11 Md. 365, 374; it may be observed that the case in which this rule was applied was a suit by a simple contract cred- itor against his debtor, and against other persons holding legal title to the property, and that the stringency of this rule as laid down was per- haps in part due to the nature oif the case before the court; see Whit- man v. Robinson, 21 Md. 30, 43. The rule was also stated in Thomp- son v. Diffenderfer, 1 Md. Ch. 489, 495. See the comments in Potn- eroy, Eq. Jur. sec. 1331, note 3; ante, sec. 629, note 1. 2 The rule has been stated and applied in a number of subsequent cases; see Haight v. Burr, 19 Md. 130, 134; State v. Northern Central R. Co., 18 Md. 193, 21S; Brick Co. v. Robinson, 55 Md. 410, 418; B. &, O. R. Co. v. Cannon, 72 Md. 493, 500; Davis v. U. S. Electric Co., 77 Md. 35, 40; Steinberger v. Independent Assn., 85 Md. — . As expressed in Davis v. U. S. Electric Co., 77 Md. 35, 40, the power is to be exercised "only in cases where there is fraud or spolia- tion, or imminent danger of the loss of the property, if immediate pos- session should not be taken by the court." 3 Clark v. Ridgely, 1 Md. Ch. 70, 71; State v. Northern Central R. Co., 18 Md. 193, 215; in the first mentioned case for a sale of property, the bill prayed for the appointment of a receiver, but did not allege that the party said to be in wrongful possession was insolvent, or un- able to account for the rents and profits, or that without the appoint- ment of a receiver the rents and profits were in danger of being lost; the prayer of the bill was therefore refused; stated in Blain v. Everitt, 36 Md. 73, 81. Compare Knighton v. Young, 22 Md. 359, 372. In Williamson v. Wilson, 1 Bl. 418, 423, it is said: "But there are cases in which it may become necessary 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 739 Receivers. §632 moving cause of the appointment is the preservation of the sub- ject of litigation, or the rents and profits of it, from waste, loss or destruction.* The sole object of appointing a receiver is to take care of the subject about which parties are contending, and to preserve it from being wasted or lost. 5 In general, where personal property, or the rents and profits of real estate in dis- pute, are in imminent danger of being wasted or lost, a receiver may be appointed to take care of them for the benefit of all con- cerned, during the controversy. Equity will appoint a re- ceiver at the instance of parties interested where there is no fraud or spoliation, if it can be satisfactorily established that there is danger to the estate or fund, unless such step is taken. 6 A manifest abuse of trust by an habitual and prospective course of dealing, bringing the property into danger, has been held to afford sufficient ground for the appointment. In no case has there been the least hesitation in making an appointment where the party in the actual receipt of the rents and profits was shown to be insolvent. 7 The averment of insolvency of the party in the litigated estate after the right to it shall have been regularly de- termined;" citing the Wharf case, 3 Bl. 361, 367. 'Hannah K. Chase's case, 1 Bl. 206, 213. See the facts in Brown v. C. & O. Canal Co., 73 Md. 567, 582-583. 5 Hannah K. Chase's case, 1 Bl. 206, 232; Shannon v. Wright, 60 Md. 520, 523. Compare Williams' case, 3 Bl. 186, 215; Estate of Rachel Col- vin, 3 Md. Ch. 278, 291-292; Frostburg Assn. v. Stark, 47 Md. 338, 345. In Furlong v. Edwards, 3 Md. 99, 114, it was said by Mason, J., that "if the court can see that the party asking for relief can have re- dress and protection in any other way, the extraordinary power of the court will not be exercised in the appointment of a receiver." 6 State v. Northern Central R. Co., 18 Md. 193, 214-215; quoting in part Duvall v. Waters, 1 Bl. 569, 579. See also Johns v. Hodges, 62 Md. 525, 53i; Textor v. Shipley, 77 Md. 473, 478. 'Hannah K. Chase's case, I Bl. 206, 213; here the person in control ,of property, pending an action for dower, and in receipt of the income, was insolvent and in fact obtained the benefit of the insolvent laws during the progress of the suit. "Hence it clearly appears that the rents and profits of the property in question are exposed to imminent danger, or indeed to inevitable loss." Stated in Blain v. Everitt, 36 Md. 73, 82. In Knighton v. Young, 22 Md. 359, 372, an action of dower, there was no allegation that the rents and profits of the real estate would be lost irretrievably by reason of the insolvency of those receiv- §632-633 Receivers. 740 possession and receipt of the rents and profits is most important in making out that strong and -special case of imminent danger of loss always required as essential to authorize the ap- pointment of a receiver before answer. 8 §633. Appointment before answer. — Unless the ne- cessity be of the most stringent character, the court will not ap- point a receiver until the defendant is first heard in response to the application. 1 The grounds must be very strong and spe- cial. It must appear that the claimant has a title to the proper- ty, and the court must be satisfied by affidavit that a receiver is necessary to preserve the property from loss. 2 If it be practi- cable the defendant ought to have an opportunity to put in his answer, and if this cannot be done, it is the duty of the plaintiff ing them; there was therefore nothing to require the appointment of a receiver. See also Clark v. Ridgely, I Md. Ch. 70, 71; ante, note 3. 8 Blain v. Everitt, 36 Md. 73, 81. In McKaig v. James, 66 Md. 583, 584, a bill was filed for the sale of the real estate of a deceased debtor, because of the insufficiency of the personalty to pay the debts. Afterwards a petition was filed by certain creditors for the appointment of a receiver to take charge of the real estate and collect the rents and profits for the benefit of the creditors. The court said that if the combined real and personal es- tate of the debtor was sufficient to pay the debts, the creditors would have no reason to resort to the rents for payment. "If, however, a strong probability of this insufficiency should be shown, a court of equity ought to interfere and appoint a receiver. The creditors ought to be relieved from the hazard of losing their debts, so far as the rents might contribute to secure them." See also Warfield v. Owens, 4 G. 364, 380-382; Hammond v. Hammond, 2 Bl. 306, 360. In Estate of Rachel Colvin, 3 Md. Ch. 278, 288, a lunatic died, whereby the office of the committee was determined. The court said: "The committee is to retain the possession, and preserve the property from injury, until some person shall appear properly authorized to re- ceive it from him. In the meantime, if there is reason to apprehend delay in ascertaining who are entitled to the possession, a receiver may be appointed upon the application of the parties in interest." The person who was the committee was appointed receiver. See also pages 291 and 299. Compare O'Neill v. Cole, 3 Md. Ch. 174, 185. ^londheim v. Moore, 11 Md. 365, 374; Triebert v. Burgess, 11 Md. 452, 461; Brick Co. v. Robinson, 55 Md. 410, 418; Haight v. Burr, 19 Md. 130,134. See also High on Receivers, sees, m-117. 2 Clark v. Ridgely, 1 Md. Ch. 70, 71 ; see Brick Co. v. Robinson, 55 Md. 410, 418; Williamson v. Wilson, 1 Bl. 418, 422. 741 Receivers. §633-634 not only to show that he has an interest in the property in dis- pute, but that the interference of the court is absolutely neces- sary to preserve it from loss or injury. 3 The averment of in- solvency of the party in possession and receipt of the rents and profits of property is most important in making out a case of imminent danger of loss, always regarded as essential to the ap- pointment before answer. 4 But when upon the facts set forth in the bill, the case falls within the established rules, the court is justified in passing an order appointing a' receiver, without waiting for the answer of the defendant. 5 If the facts set forth in the bill do not meet the requirement of the rule, an order ap- pointing a receiver before answer will be reversed on appeal. 6 The rule that the court will not appoint a receiver until the de- fendant is first heard, unless the necessity be of the most strin- gent character, can only be enforced on appeal from the order appointing the receiver. 7 §634. Appointment against legal title. — It has been repeatedly held that the court interferes with great reluctance against the legal title, and only in cases of fraud clearly proved and of imminent danger; 1 or where the property is in danger of being materially injured or lost. 2 The court must not only be 3 Frostburg Assn. v. Stark, 47 Md. 338, 345; upon the facts in the bill in this case the court was justified in granting an injunction and ap- pointing a receiver to take charge of the assets of the defendant, an insolvent building association, upon the bill alone. Compare Stein- berger v. Independent Assn., 85 Md. — . 4 Blain v. Everitt, 36 Md. 73, 81. 5 As in Haight v. Burr, 19 Md. 130, 134; Frostburg Assn. v. Stark, 47 Md. 338, 346-347. See also Goodman v. Jedidjah Lodge, 67 Md. 117, 120-121; Davis v. U. S. Electric Co., ^^ Md. 35, 40-41. "As in Nusbaum v. Stein, 12 Md. 315, 322; Triebert v. Burgess, 11 Md. 452, 461; Blcxndheim v. Moore, 11 Md. 365, 37s; Brick Co. v. Rob- inson, 55 Md. 410, 418. 7 Voshell v. Hynson, 26 Md. 83, 94. 1 Williamson v. Wilson, 1 Bl. 418, 422; H. K. Chase's case, I Bl. 206, 212; Thompson v. Diffenderfer, 1 Md. Ch. 489, 493; O'Bryan v. Gib- bons, 2 Md. Ch. 9, 11; Drury v. Roberts, 2 Md. Ch. 157, 159; Furlong v. Edwards, 3 Md. 99, 112. Compare Cole v. O'Neill, 3 Md. Ch. 174, 185, in which the title was equitable in part. 2 Speights v. Peters, 9 G. 472, 479; quoted in Whitman v. Robinson, 21 Md. 30, 43. §634-635 Eecbivbrs. 742 morally sure that at the hearing the party would be turned out of possession, but must see some imminent danger to the prop- erty and the rents and profits. 3 The rule has been applied in suits against a surviving partner having the legal title to the partnership assets ;* against a partner authorized by a partner- ship agreement to wind up the affairs after dissolution; 5 against a mortgagee in possession where no fraud or misconduct is charged; 6 and other cases. 7 In partnership cases. §635. General principles. — The application of the gen- eral principles upon which courts act upon prayers for receivers is substantially the same in cases involving partnership affairs, as between the partners, as in other cases where such remedy is invoked. 1 In controversies between partners, the court, upon an application for a receiver, does not determine the questions arising between the partners; the only question for considera- tion being whether upon the facts disclosed there is an apparent necessity for an injunction or a receiver to protect the assets of the partnership until the rights Of the partners can be definitely determined upon full hearing of the case. 2 3 Kipp v. Hanna, 2 BI. 26, 31; compare Thompson v. Diffenderfer, 1 Md. Ch. 489, 494. 4 Walker v. House, 4 Md. Ch. 39, 43-45. 6 Heflebower v. Buck, 64 Md. 15, 23-24; Drury v. Roberts, -2 Md. Ch. 157, IS9> 161; O'Bryan v. Gibbons, 2 Md. Ch. 9, 11. 6 Furlong v. Edwards, 3 Md. 99, 112. 7 See the instances in the cases cited in notes 1-3. 1 Heflebower v. Buck, 64 Md. 15, 21. In Bush v. Linrhicum, 59 Md. 344, 349-350, 354, it was held that where an adult partner brings suit against his infant partner for a dis- solution of the partnership, and for an injunction and receiver, the plea of infancy is no bar to the action. In Walker v. House, 4 Md. Ch. 39, 44-45, it is said that the court will never interfere in the case of a subsisting partnership unless for such gross abuse and misconduct that a dissolution ought to be de- creed; and that a receiver will not be appointed unless it appears that the plaintiff will be entitled to a dissolution at the hearing. This was the English rule; High on Receivers, sec. 472; and see sec. '509. Com- pare O'Bryan v. Gibbons, 2 Md. Ch. 9, 10. 2 Heflebower v. Buck, 64 Md. 15, 21; see High on Receivers, sec. 475. 743 Receivers. §636-637 §636. Before dissolution.— It is not every case of al- leged mismanagement, by one partner, of the partnership as'- sets, that will entitle a co-partner to the extraordinary remedy of injunction and receiver. To grant such a relief in any case is a stringent measure on the part of the court; and the power should never be exercised except in a strong case, and where the court can see that the condition of things is such as to ren- der it necessary for the safety or protection of the partnership assets that it should so interpose. 1 The party asking the ap- pointment must show a case of great abuse, or strong miscon- duct. 2 The general rule is that to warrant a receiver, there must be some breach of duty on the part of one of the partners, or a violation of the articles of co-partnership. 3 m §637. Instances. — The most prominent point on which the court acts in appointing a receiver of a partnership is said to be the circumstance of one partner having taken upon him- self the power to exclude another partner from as full a share in the management of the partnership, as he, who assumes that power, himself enjoys. This principle seems to be universally approved by the authorities. 1 So also where a dissolu- tion was contemplated, and there was a serious and apparently 1 Heflebower v. Buck, 64 Md. 15, 21-22. 2 0'Bryan v. Gibbons, 2 Md. Ch. 9, 10. 3 High on Receivers, sec. 483, et seq.; Walker v. House, 4 Md. Ch. 39, 45- In Williamson v. Wilson, 1 Bl. 418, 426, the plaintiff charged his copartners with a design to waste the joint property, or to apply it to their own use, and the defendants made similar charges against the plaintiff. Both parties admitted themselves to be insolvent debt- ors. The court considered this a case peculiarly proper for the ap- pointment of a receiver before answer. Compare Bush v. Linthicum, 59 Md. 344, 346-347. In Hamill v. Hamill, 27 Md. 679, 687, it was said: "We know of no principle of equity -which would justify the appointment of a re- ceiver to take possession of partnership property without allegations' of waste and fraud committed or about to be committed by one partner to the loss and injury of the other partner or his legal representatives." [§637.] x Katz v. Brewington, 71 Md. 79, 83; here an order appoint- ing a receiver was affirmed upon the allegations that the defendant partner had excluded the plaintiff from all control of the business of the firm, had refused to give him any information respecting it, and had §637-638 Receivers. 744 irreconcilable disagreement between the parties, both as to the control and disposition of their property and effects, and their respective claims against each other, it was held a provident ex- ercise of power, demanded by the exigencies of th« case, to ap- point a receiver. The application was made by a partner hav- ing the legal estate, entitled to an equal right in the possession. 2 §638. After dissolution ; in general. — The court will interfere by the appointment of a receiver with much less reluc- tance in the case of a partnership which has closed, than with a continuing one. 1 The objection to interposition is not so strong after the partnership has been dissolved, as before. The court in that case will take care that neither party shall by his own misconduct or abuse prejudice the rights of the»other part- ner. But some urgent and pressing necessity must be showri. 2 carried away the books from the place of business and had refused to disclose the place in which they were. See also Speights v. Peters, 9 G. 472, 479-480; High on Receivers, sees. 522-529. 2 Whitman v. Robinson, 21 Md. 30, 43-44; it is here said that the rules laid down in Blondheim v. Moore, 11 Md. 365, are inapplicable to this case. In the similar case of Haight v. Burr, 19 Md. 130, 133-134, it was said of the facts that they fell within the rules in Blondheim v. Moore, 11 Md. 365, 374, and justified the passage of an order appointing a re- ceiver without waiting for the answer of the defendants. See also the facts in Shannon v. Wright, 60 Md. 520, 522-523, in which such a case of alleged fraud and imminent damage to the plaintiff's interest was set out by the bill as justified a receiver and an injunction. 1 Walker v. House, 4 Md. Ch. 39, 44-4S; O'Bryan v. Gibbons, 2 Md. Ch. 9, 10. 2 0'Bryan v. Gibbons, 2 Md. Ch. 9, 10. In Walker v. House, 4 Md. Ch. 39, 43, and Whitman v. Robin- son, 21 Md. 30, 41-42, the following quotation is made and approved: "Where either party has a right to dissolve the partnership, and the agreement between the partners makes no provision for closing up the concern, it was of course to appoint a manager or receiver, on a bill filed for that purpose, if they could not arrange the matter between themselves.'' Compare Stevens v. Yeatman, 19 Md. 480, 484, 490, in which it was also held that the costs should be charged against the partnership fund. In Kerr v. Potter, 6 G. 404, 415, the chancellor said that the case was one where the partnership was at an end, the business suspended, and the right claimed and exercised by one of the partners, to apply the funds which should be applied to the payment of the joint credit- ors, to the payment indiscriminately of them and his individual credit- 745 Receivers. §639 - §639. Winding up the business.— Generally upon the dissolution of the partnership, each partner is entitled to assist in winding up the affairs of the concern ; and any interference with this mutual right, or the exclusion of one partner by the other or others from the enjoyment of it, affords a sufficient ground to the court for taking the management of the partner- ship affairs into its own hands and control. 1 Where the part- ners cannot agree upon the adjustment, and the property or funds in dispute are in the hands of one partner alone, each hav- ing an equal right to the control of the property, cases arise where the interests of both can only be properly secured by the intervention and appointment of a receiver. In such cases it is not always a necessary condition to the action of the court that the property should be in imminent peril. Against the legal title the court would interfere with great reluctance; but in re- spect to a fund which is claimed, and is, prima facie, the pro- ceeds of a partnership, it is but a provident exercise of equity power to place the property under the care of the court. 2 But where the partners by agreement have delegated the right of winding up the affairs of the partnership to one of the members, the court interferes to take out of the hands of the settling part- ner the matter thus confided to him, with great reluctance, and only upon the most cogent reasons. In such case there must be some clear breach of duty, or conduct amounting to fraud, or the facts must be such as to show a real danger to the partner- ship assets thus confided to the administration of the settling ors, and that a receiver was proper under such circumstances. On page 423, the court of appeals said that if the parties were partners, the order appointing the receiver was correct; but the appellee was held not to be a partner. •Heflebower v. Buck, 64 Md. 15, 23; Drury v. Roberts, 2 Md. Ch. 157, 159- See also Speights v. Peters, 9 G. 472, 480, where it is said: "Whenever a dissolution has taken place, or is intended, if one partner behave unrighteously against the interest of the others, or carries on trade with the partnership effects on his own account after the disso- lution, or in any other manner excludes his copartner from that share to which he is entitled in winding up the concern, it presents a case for a receiver." Compare Walker v. House, 4 Md. Ch. 39, 43. 2 Speights v. Peters, 9 G. 472, 476, 479; approved in Whitman v. Robinson, 21 Md. 30, 43. §639-640 Ebceivers. 746 partner, by reason of insolvency or otherwise. The court ought to be perfectly sure that the conduct of the settling partner has been such as to make it proper, from regard to the interests of others, as well as himself, that he should be removed from the situation in which the contract placed him. 3 §640. In case of death. — If both partners are dead and the representatives of one institute a suit against the represen- tatives of the other, the court will, as a matter of course, ap- point a receiver, there being no relation of confidence between the respective representatives. 1 But a receiver will not be ap- pointed upon the application of the representative of a deceased partner against the surviving partner, unless the latter has been guilty of mismanagement and improper conduct. The sur- viving partner has, by law, the right to the custody, care and management of the joint estate, and this should not be wrested from him unless the court is satisfied that he cannot be safely entrusted with it. 2 3 Heflebower v. Buck, 64 Md. 15, 23-24; upon the facts here the court discovered no sufficient ground for displacing- the settling partner from his position. See also Drury v. Roberts, 2 Md. Ch. 157, 159, 161 j compare O'Bryan v. Gibbons, 2 Md. Ch. 9, II. , 1 Walker v. House, 4 Md. Ch. 39, 43; High on Receivers, sec. 530. 2 Walker v. House, 4 Md. Ch. 39, 43-45, 52. On page 46 it is said that if the surviving partner undertakes to carry on the partnership trade or business or engage in new transactions on account thereof, it would be an abuse for which the court might be justified in appointing a receiver; see also pages 48-49. Compare High on Receivers, sees. S3I-S32. In Hamill v. Hamill, 27 Md. 679, 687, one partner absconded, whereupon the other partner became entitled to take possession of the partnership property. It was said that the appointment of a receiver for the property of the absconding partner, did not operate to divest the other partner of his rights to the partnership property. In Walker v % House, 4 Md. Ch. 39, 51, it is said that in the case of the appointment of a receiver of the assets of a partnership, one of the members of which has died, the appointment does not merely carry with it the authority to sell the remaining stock of the firm, but confers the general power to take possession of the books, papers and effects, to receive its outstanding debts and wind up its affairs. It completely displaces the authority of the surviving partner, putting the agent of the court in his shoes and clothing him under its supervision with all the rights and duties which the law confided to the surviving partner. 747 Receivers. §641-642 In corporation cases. §641. The general equity jurisdiction. —Where the conditions required for the appointment of receivers in other cases have been fully met, courts of equity do not hesitate to appoint receivers over the property of corporations, for the benefit of all concerned during the controversy. 1 These con- ditions have been set forth in previous sections of this chapter. 2 §642. In cases of fraud, mismanagement and collu- sion. — Apart from statutory power, a court of equity cannot dissolve a corporation. Equity may properly compel officers of corporations to account for any breach of trust in their official capacity; yet in the absence of statutes extending its jurisdic- tion, it will usually decline to assume control over the manage- ment of the affairs of a corporation upon a bill alleging fraud, mismanagement and collusion on the part of the corporate au- thorities, since such interference would necessarily result in the dissolution of the corporation, and the court would thus ac- ^ complish indirectly what it has no power to do directly. Al- though the facts shown may authorize an injunction, the court will not enlarge its jurisdiction by taking the affairs of the cor- poration out of the management of its own officers and placing them in the hands of a receiver. 1 1 Davis v. U. S. Electric Co., 77 Md. 35, 40-41. Compare State v. Northern Central R. Co., 18 Md. 193, 216. Receivers have been appointed for the property in Maryland of foreign corporations; as in Failey v. Fee, 83 Md. 83, 91; Wiener v. Sturgiss, 79 Md. 271, 272; Day v. Postal Tel. Co., 66 Md. 354, 358-360, 370. In State v. Northern Central R. Co., 18 Md. 193, 215-216, it was held that a Maryland court could appoint a receiver of that portion of the property and franchises of the railroad corporation lying within the limits of the State. Compare Brown v. C. & O. Canal Co., 73 Md. 567, 609-610. 2 See ante, sees. 629-634; compare B. & O. R. Co. v. Cannon, 72 Md. 493, Soo. [§642.] iMason v. Sup. Court of Equitable League, 77 Md. 483, 484- 485; the propositions in the text are taken by the court from High on Receivers, sec. 288; and Goodman v. Jedidjah Lodge, 67 Md. 117, 125, is cited as an authority to the same effect. Compare Du Puy v. Term- inal Co., 82 Md. 408, 426, 436-437, 442. In Davis v. U. S. Electric Co., 77 Md. 35, 41, a bill was filed by §643 Receivers. 748 §643. Statutory dissolution in case of insolvency.— By statute in Maryland it is provided that whenever any cor- poration in this State shall have been determined by legal pro- ceedings to be insolvent, or shall be proven to be insolvent by proof offered under any bill filed under the provisions of the statute, it shall be deemed to have surrendered its corporate rights, privileges and franchises, and may be adjudged to be dissolved after the hearing, according to the practice of courts of equity in this State. 1 This statute has not changed the re- lations of shareholders to the corporation of which they are members, nor has it established any new rule relative to the character of the proof necessary to prove the insolvency of a certain stockholders in a corporation praying for a receiver; it was said: "It is not here alleged that the United States Company is at pres- ent insolvent, or that its property is being wasted, but that the directors, at the instance and for the benefit of the Brush Company, have adopted a fraudulent policy, and are carrying it out by the fraudulent acts set out in the bill, and that if this policy be persisted in, ruin will soon overtake that company, and its stockholders will suffer the loss of the value of their stock. If these allegations are clearly proved, the court" would appoint a receiver. In Frostburg Assn. v. Stark, 47 Md. 338, 345-346, a receiver was appointed of a building association upon an ex parte application alleg- ing gross and fraudulent mismanagement, and hopeless insolvency. The plaintiffs were shareholders. 1 Act of 1894, ch. 263, amending code, art. 23, sec. 264; the statute further provides that the adjudication may be had "upon a bill filed for that purpose in the circuit court of Baltimore city or in the circuit court No. 2 of Baltimore city, if the principal office of the corporation is located therein, or in the circuit court of any county, if the principal office or place of business of said corporation be therein located, or if the certificate of its incorporation be recorded therein; and such bill may be filed by any stockholder, shareholder or creditor of said cor- poration, or by the attorney-general of the State of Maryland, or by the state's attorney of the city or county in which the principal office of said corporation is located. But this section shall not apply to any railroad company chartered by this State." An important provision in these cases, not bearing directly, however, upon the subject of receivers, is made by the act of 1892, ch. 399, as follows: "No corporation, made taxable by any law of this State, shall hereafter be dissolved under the decree of any court of this State until all taxes due the State have been fully paid or adjusted, and the certificate of the comptroller of the treasury to this effect filed in the proper court with the proceedings of dissolution." 749 Kecbivers. §643-645 corporation. It is just as necessary now, as before the act, to prove that a corporation is unable to pay its debts in the or- dinary course of business, as persons in trade usually do, before there can be a decree adjudging it insolvent. 2 §644. Right of minority stockholders. — In the set- tlement of the affairs of a dissolved corporation it is in general the right of a minority of stockholders to have a decree for re- ceivers and a sale of assets; but there may be circumstances that will justify a decree ascertaining the value of the assets in some equitable manner without a sale, and making a distribu- tion to shareholders on that basis. 1 §645. Powers of statutory receivers. — It is provided by the code that "where receivers of the estate or effects of any corporation shall be appointed by a court, upon or before the dissolution of any corporation, they shall be vested with all the estate and assets of every kind belonging to such corporation, from the time of their qualifying as receivers, and shall be trus- tees thereof for the benefit of the creditors of such corporation and its stockholders." 1 Under this and other provisions the re- ceiver of a dissolved corporation may maintain an action against a stockholder for a balance due on his subscription to the capi- tal stock. 2 By a recent statute the authority of a receiver of a corporation has been extended by the provision that "the re- ceiver of such corporation shall have the same power and au- thority to maintain suits and proceedings, to set aside prefer- 2 Steinberger v. Independent Assn., 85 Md. — ; in this case the plain- tiffs, "free" shareholders of a building association, were held not to be creditors of the association. ^B. & O. R. Co. v. Cannon, 72 Md. 493, 498-499. On page 500 it is said: "Nor does it necessarily follow that if the instrument under which the assignee of the assets holds is void, the court will appoint an officer to take possession." [§645-] 1 Code, art. 23, sec. 269; the section also provides that the re- ceivers "shall proceed to wind up the affairs of such corporation, under the direction of the court by which they shall have been appointed, and shall have all powers which shall be necessary for that purpose." Other sections of article 23 make further provisions in reference to the powers of the receiver. 2 Stillman v. Dougherty, 44 Md. 380, 383-384- §645-646 Receivers. 750 ences and void or fraudulent transfers and payments, convey- ances and assignments by said corporation, or by any of its offi- cers on its behalf, in the same manner and to the same extent as the permanent trustee of an insolvent debtor has." 3 §646. Receivers' certificates. — Receivers' certificates are evidences of indebtedness issued by a receiver under the au- thority of the court as a means of obtaining funds for purposes germane to the objects of the receivership, and necessary to the proper administration of the trust. They are by order of the court declared to be a first lien upon the entire property, income and franchises of the corporation. Being merely evidences of indebtedness issued for a special purpose, and payable out of a special fund, they are not negotiable instruments, although as- signable. 1 It is only against railroad mortgages that the su- preme court of the United States has sustained orders giving priority to receivers' certificates. A railroad is a peculiar prop- erty, of a public nature, and discharging a great public work; there is a broad distinction between such a case and that of a purely private concern. It would be exceedingly dangerous to concede to a court of equity the power to displace, in favor of receivers' certificates, subsisting liens on the property of private corporations, or of individuals. No mortgage lien would ever be secure if it were liable to be postponed to subsequent obliga- tions created by a receiver. 2 The decided tendency of recent judicial decisions has been to restrict the authority to issue re- ceivers' certificates. 3 3 Act of 1896, ch. 349, inserting a new section, 264 A., into article 23 of the code. 1 High on Receivers, sees. 398C-3981'. 2 Hooper v. Central Trust Co., 81 Md. 559, 591-593. See also Thomas v. Western Car Co., 149 U. S. 95, in. Receivers' certificates of a certain character were issued in Crook v. B. & O. R. Co., 80 Md. 338, 343. See also Brown v. C. & O. Canal Co., 73 Md. 567, 5^5- In Diamond Match Co. v. Taylor, 83 Md. 394, 406, it is said: "This court has recently held that a receiver of a private corporation ■has no authority, even under an order of court, to create liens upon the property placed in his care by the issual of certificates which will take precedence over subsisting incumbrances, Hooper v. Central Trust Co., 81 Md. 559, and the same principle equally applies to a re- ceiver of a firm or copartnership." 3 See Hanna v. State Trust Co., 70 Fed. Rep. 2. 751 Receivers. §647-649 §647. Other statutory provisions.— The code contains provisions authorizing the dissolution of any corporation and the appointment of receivers upon its voluntary application for that purpose. 1 Other sections prescribe the duties and powers of receivers of corporations dissolved under the code provis- ions. 2 The court is authorized to appoint a receiver in cases of proceedings by the attorney-general or a state's attorney for misuse, abuse or non-use of corporate powers. 3 Miscellaneous. §648. In cases of cotenancy.' — As between tenants in ■common of realty a receiver will not be appointed unless a case is presented amounting to an exclusion by the defendant of his cotenants from the enjoyment or possession of the property; but in the case stated, and especially where the defendant in possession is insolvent and unable to respond in damages; the right to a receiver in behalf of the tenant excluded is well set- tled. 1 In partition cases a receiver may be appointed when it is apparent that the relief is necessary to protect all parties in in- terest, but not merely because of the occupancy of the premises by the defendant tenant in common, since the right of posses- sion is one of the incidents of such tenure. 2 §649. In cases of creditor against debtor. — In a number of cases the propriety of appointing a receiver for the «state of a debtor at the suit of a creditor has been considered. The cases seem to have been decided upon the general rules regulating the power of appointment as set forth in previous sections of this chapter. The propriety of appointing receiv- ers has depended upon the facts of each particular case, tested "by the rules regulating the general subject. In some cases re- ceivers have been appointed at the suit of simple contract cred- itors having no judgment, or lien upon the assets of the debtor. 1 1 Code, art. 23, sees. 265-268. 2 Code, art. 23, sees. 269-271, 273-275. 3 Code, art. 23, sec. 258. [§648.] iHigh on Receivers, sec. 604. 2 High on Receivers, sec. 607. [§649.] 'In High on Receivers, sees. 406, 755, it is said that in the ab- §649 Eeceivees. 752 In the case of a commercial firm actually engaged in trade, the power of the court to appoint a receiver on the application of a creditor can only be vindicated by an unusual and pressing sence of statutory provisions to the contrary, a general contract cred- itor, before judgment, is not entitled either to an injunction or a re- ceiver against his debtor, upon whose property he has acquired no lien, and as authorities for this statement are cited the Maryland cases of Uhl v. Dillon, 10 Md. 500, which is quoted at length; Nusbaum v. Stein, 12 Md. 315; Hubbard v. Hubbard, 14 Md. 356; Rich v. Levy, 16 Md. 74; with reference also to some other Maryland decisions. The rule as stated applies in the federal courts; Hollins v. Brierfield Coal Co., 150 U. S. 371, 378-379; see also Sage v. Memphis R. Co., 125 U. S. 361, 376. As to the general rules respecting the right of a non-judgment creditor to proceed in equity upon a debt cognizable at law, see post, sees. 730-733. In Rosenberg v. Moore, 11 Md. 376, 381, a bill by simple con- tract creditors of a defendant, who had made an assignment for the benefit of creditors which the court held to be void, charged that the trustee had placed the property under the care of a person of noto- riously bad character, and that by the refusal of the defendants, and the custodian of the goods, to allow an inventory to be made, if loss should occur, the creditors would be deprived of the necessary proof to show the extent of such loss. These allegations show a case of imminent danger justifying the granting of an injunction and the appointment of a receiver, without notice to the defendants, and bring the case within the rules laid down in Blondheim v. Moore, 11 Md. 365, 374. In Sanderson v. Stockdale, 11 Md. 563, 575, a simple contract creditor of a partnership filed his bill charging that the partnership effects had been misapplied and appropriated to the private purposes of the defendant partners, thus defrauding the creditors of the firm; that the firm was insolvent, and a dissolution was designed in order to defeat creditors, and unless the defendants were restrained the plain- tiff would sustain great and irreparable injury. This bill authorized an injunction; if before the act of 1835, ch. 380, sec. 2, (now code, art. 16, sec. 46, in reference to which see in general post, sees. 730- 733,) it might have been necessary for the plaintiff to have a judgment, the act rendered it unnecessary, as it included any transfer, assignment or contract between parties disposing cif partnership assets among themselves for fraudulent purposes. It was held that at any time, after reasonable notice to the defendants, or their solicitor, it would be proper for the court below to appoint a receiver to take charge of the effects, provided it be shown to the court to be necessary for the ultimate security of the plaintiff. Followed in Flack v. Char- ron, 29 Md. 311, 317, 323. Compare Hubbard v. Hubbard, 14 Md. 356, 3S9-36o. In Gable v. Williams, 59 Md. 46, 52, a surviving partner made 753 Receivers. §649 emergency, which would leave it no alternative. The absolute necessity of putting its hand at once upon the property, to save it from destruction or loss, must be clearly shown; fraud or a deed of assignment for the benefit of creditors, the terms of the deed destroying the preference given by law to the partnership creditors of having their claims paid out of the partnership assets to the exclusion of the separate creditors of the surviving partner. It was said that if "insolvency existed, and there had been abuse, or if there was danger of abuse and misapplication of the partnership assets as charged in this case, ample cause was shown for the interposition of a court of equity to restrain such abuse and misapplication of the partnership funds by injunction and for the appointment of receivers, upon the ap- plication of the partnership creditors." In Rose v. Bevan, 10 Md. 466, 469-470, the bill alleged that the • plaintiffs had obtained judgments against their debtor, and had levied on his goods; that a mortgagee of the goods of the debtor sought to prevent the sale under the levy; that the property mortgaged and levied upon was more than sufficient to pay the mortgage, and that the debtor had no other property; that after the execution of the mort- gage the debtor was permitted to use and dispose of the goods; that a "part of the goods levied on were not those mortgaged, and tfhat if the goods levied upon were mot taken from the possession of the debtor they would be disposed of, and the plaintiffs would lose their entire claim. It was held that these averments made a good case for an in- junction and the appointment of a receiver, before answer. In Myers v. Amey, 21 Md. 302, 304-306, a bill making similar allegations was held sufficient to authorize an injunction. See also the remarks in Voshell v. Hynson, 26 Md. 83, 93 and 94. In Uhl v. Dillon, 10 Md. 500, 503, the plaintiffs were merely gen- eral creditors, who had not prosecuted their claim to judgment or exe- cution and had no lien upon their debtor's property. The bill alleged the indebtedness, that the debtor was disposing of his property and col- lecting the debts due him and secreting the same, with intent to defraud his creditors, and that the plaintiffs were informed, and believed, that he intended, as soon as he completed the sales and collections, to ab- scond, for the purpose of defrauding his creditors. This bill stated no sufficient case for an injunction and receiver. See the similar case of Hubbard v. Hubbard, 14 Md. 356, 359-360. Compare Rich v. Levy, 16 Md. 74, 76-77, 85; Triebert v. Burgess, 11 Md. 452, 461; Nusbaum v. Stein, 12 Md. 315, 322. In Furlong v. Edwards, 3 Md. 99, 112, a judgment creditor, after exhausting his remedy at law, applied for a receiver of the property, which was covered by a mortgage. The only allegations authorizing the proceedings were those averring that the defendant debtor was in possession of the property, selling and converting the same to his own use; that he was insolvent and that the plaintiff was thereby in danger 48 §649-650 Receivers. 754 imminent danger, if the immediate possession should not be taken by the court, must be clearly proved. 2 §650. In cases of mortgagee against mortgagor.— With respect to the appointment of receivers over mortgaged property at the instance of the mortgagee, the general rule is that in all cases where the rents of the property are not specific- ally pledged as security for the debt, to entitle a mortgagee to the appointment of a receiver of the mortgaged premises, and of the rents and profits, he must show, first, that the mortgaged property is an inadequate security for the debt, with interest and costs of suit; and, second, that the mortgagor, or other person liable for the payment of the debt, is insolvent, or be- yond the jurisdiction of the court, or of such doubtful respon- sibility that an execution against him would be unavailing. These facts being shown, a receiver will generally foe -ap- pointed. 1 of losing his debt. As these were denied by the answer, there was no ground for continuing the receiver upon the motion to discharge. No fraud or improper conduct being charged against the mortgagee, he could not be deprived -of possession. In Blondheim v. Moore, n Md. 365, 373-375, the head note states the case to be that "the allegations of a bill for an injunction and re- ceiver, that the plaintiffs are informed of certain matters, without stat- ing when or whence the information was obtained, do not make such a case of fraud and imminent danger to justify the granting of an in- junction, or the appointment of a receiver, without notice to the de- fendants." The bill was by a creditor against the debtor, and the mortgagee and assignee of the latter. 2 Thompson v. Diffenderffer, t Md. Ch. 489, 494-495; in this case the facts stated in the bill were held to justify the appointment of a re- ceiver. Compare the remarks in Williamson v. Wilson, 1 Bl. 418, 422- 423; see also Guyton v. Flack, 7 Md. 398, 403. 1 High on Receivers, sec. 666; Jones on Mortgages, sees. 1516-1534. See Carey's Forms, No. 740, p. 569. In Grant v. Phoenix Co., 121 U. S. 105, 117, it is said: "Courts of equity always have the power, where the debtor is insolvent, and the mortgaged property is an insufficient security for the debt, and there is good cause to believe that it will be wasted or deteriorated in the hands of the mortgagor, as by cutting of timber; suffering dilapidation, &c, to take charge of the property by means of a receiver, and pre- serve not only the corpus, but the rents and profits, for the satisfaction 755 Receivers. §651-652 §651. Injunction and receiver. — The aid of an in- junction issometimes a necessary adjunct to a receivership for the purpose of protecting the receiver's possession and to pre- vent any unauthorized interference, by suit or otherwise, with the property or fund intrusted to his care. 1 When the applica- tion for the appointment of a receiver is not granted ex parte, an injunction may be ordered as a temporary measure to pre- serve the property from danger and loss. 2 Instances are nu- merous of the granting of relief by injunction either to preserve the existing status of the property pending the determination of the right to a receiver, or as ancillary to the relief granted by the appointment of a receiver. 3 §652. Miscellaneous. — Upon application by legatees in remainder, charging that a fund due the estate was in danger of being lost, by reason of the refusal of the executors to collect and account for the same in the settlement of the estate, there was no serious question as to the power of the court to appoint of the debt." Compare Brown v. C. & O. Canal Co., 73 Md. 567, 583- 584. In Rose v. Bevan, 10 Md. 466, 470, it is said: "The case of Clag- ett v. Salmon, 5 G. & J. 314, establishes the right of a mortgagee, before he has a right to foreclose, in the case ,of apprehended danger, or loss of the goods, to have a receiver appointed." In State v. Brown, 7$ Md. 484, 512, under the covenants in a mortgage of a canal it was the intent that the company should retain the control and management of the canal. But in case of default these covenants could not be construed as depriving the mortgagees of any remedy to which they are by law entitled. "By such default they have the right to foreclose, to ask for the appointment of receiver, and to enter and take possession of the mortgaged property." 1 Higih on Receivers, sec. 747; see sees. 737-739, for a statement of the points of resemblance and difference between the remedies of injunc- tion and receivers. 2 Walker v. House, 4 Md. Ch. 39, 50; in this case the bill prayed for an injunction and for a receiver of the partnership assets. The injunc- tion was granted, but the court refused to appoint a receiver. It was afterwards held that the injunction should not be continued unless a receiver was appointed. A motion to dissolve the injunction involved the question of appointing a receiver. See also Thompson v. Diffen- derffer, 1 Md. Ch. 489, 493; O'Bryan v. Gibbons, 2 Md. Ch. 9, 12; Williamson v. Wilson, 1 Bl. 418, 428. 3 See Carey's Forms, No. 779, pages 634-635. §652 Eeceivers. 756 a receiver to recover the fund. 1 Special statutory provisions regulate the appointment and duties of receivers of certain classes of corporations and individuals in certain counties of the State. 2 The code contains special provisions, also, for the appointment of a receiver to take charge of tax collections. 3 a State v. Wilmer, 6s Md. 178, 188-189; the court would order an ac- tion to be brought by the receiver, to recover any part of the effects of the estate, in the name of the executor, and would forbid the- latter from interfering with the conduct of the proceedings. See also Bennett v. Rhodes, 58 Md. 78, 84. 2 See the code of public local laws, and Avery v. Everett, 19 Md. 136;. Everett v. State, 28 Md. 190; Miller v. Cumberland Factory, 26 Md.. 478; Gephart v. Starrett, 47 Md. 396; Hicks v. Consolidation Coal Co.,. yy Md. 86. 3 Code, art. 16, sees. 88-90. In Blain v. Everitt, 36 Md. 73, 82, it was held that if a land owner has upon his lands, by agreement or default, a negligent and insolvent tenant bound to pay rent in money or in kind, that fact could not give- a court of equity power to amove him and work the land during the tenancy by means of a receiver. In Pfeltz v. Pfeltz, 14 Md. 376, 381, a bill was filed by a party having the legal estate in certain land, charging, against the defendant, an unlawful and violent entry upon the land, taking the products- thereof, and depriving the plaintiff of the means of support and main- tenance; the bill prayed that the defendant might be compelled to sur- render the land, and for an injunction and receiver of the rents and profits. It was held that the plaintiff's remedy was at law. In Estate of Rachel Colvin, 3 Md. Ch. 278, 294, it was said that there could be no doubt of the authority of the court to protect the property of an intestate or testator, by appointing a receiver pending a litigation in the ecclesiastical court for probate or administration. The court in such cases proceeds upon the ground that the property is in danger, because it may get into the. hands of persons 'who may have- nothing to do with it, and will not forbear to appoint a receiver be- cause the ecclesiastical court may provide for the collection of the ef- fects of the deceased by granting letters pendente lite. See also Duvall v. Waters, 1 Bl. 569, 579. The appointment of a receiver does not prevent the running of the statute of limitations; Williamson v. Wilson, 1 Bl. 418, 421; Estate of Rachel Colvin, 3 Md. Ch. 278, 302; Ellicott v. U. S. Ins. Co., 7 G. 307, 320; High on Receivers, sees. 184, 556. A payment made by a re- ceiver out of funds collected by him is not a payment by the debtor to the extent of being an acknowledgment of the indebtedness so as to take the case out of the statute of limitation; High on Receivers sec. 184. In Triebert v. Burgess, 11 Md. 452,' 461, it was held that the order 757 Receivers. §652 appointing the receiver was too comprehensive, embracing more than was authorized by the terms of the bill. In Hamill v. Hamill, 27 Md. 679, 685, a husband absconded and his wife sued for divorce and alimony, and the appointment of a re- ceiver to take charge of her husband's property. It did not appear that the husband empowered any one to take charge of his property for the purpose of protecting and preserving it. The court appointed a re- ceiver. In Bodman v. Murphy, 35 Md. 154, 163, it was said that it would be a dangerous precedent to permit the receiver of trust property to make a certain unusual contract of leasing "without the full and free assent of all parties interested in the estate, much less ought it to be done against the wishes and in face of the protest of any of the cestuis que trust." CHAPTER XXXI. SPECIFIC PERFORMANCE. 653. Definition; jurisdiction in 664. personam. 654. Absence of adequate rem- 665. edy at law. 655. Injunction and specific 666. performance. 667. 656. Discretion of the court. 668. 657. Discretion regulated by 669. established rules. 670. 658. Character of the plaintiff's case. 671. 659. Performance by plaintiff; tender. 672. 660. Partial performance by plaintiff. 673. 661. Laches on the part of the plaintiff. 674. 662. Time as of the essence of the contract. 675. 663. When time is of the es- 676. sence. 677. 678. Contracts respecting chat-' tels. Exceptions to the rule as to chattels. Contracts to devise. Contracts to create lien. Certain other contracts. Mistake in the contract. Execution of contract pre- vented by fraud. Specific performance of gifts. Compensation in lieu of specific performance. Other matters respecting compensation. Who may sue and be sued. Allegations in the bill. Proof of the contract. Frame of decree. Miscellaneous. Requisites of an enforceable contract. 679. In general. 685. 680. Contract must be in force 686. 681. Contract must be fair. 682. Contract «must be bona fide. 687. 683. Contract must be certain. 688. 684. Instances of uncertainty. 689. Contract must be mutual. Mutuality in conditional contracts. Contract must be for val- uable consideration. Inadequacy of price. Contract must be legal. 758 759 Specific performance. §653 Contracts relating to land. 690. Objections to the title. 696. When vendor should be 691. Incumbrances on the able to convey. property. 697. Inability of vendor to 692. Reasonable doubt respect- convey precisely as ing the title. agreed. 693. The same subject contin- 698. Interest and expenses in ued. certain cases. 694. Adverse interests of per- 699. Contract binding against sons not parties. heirs, &c. 695. Waiver by purchaser; certain objections. The statute of frauds. 700. The statute as a defence; 706. Character of acts of part exceptions. performance. 701. Waiver of the statute. 707. Possession of land. 702. Pleading the statute. 708. Possession by tenant. 703. The doctrine of part per- 709. Payment and possession. formance. 710. Marriage as part perform- 704. Basis of the doctrine. ance. 705. Proof of the parol con- 711. Proof of acts of part per- tract. formance. §653. Definition ; jurisdiction in ^personam —The remedy of specific performance may be denned as a remedy used by courts of equity to compel the actual execution of a contract in exact accordance with its stipulations and terms; or such an execution as will do justice 'between the parties under the circumstances, with compensation to the other party when that is required. 1 The jurisdiction in specific perform- ance is against the person of the defendant on the equity arising from the contract. 2 The decree is h* personam and not in rem. It is therefore essential to the effective character of the decree that the parties against whom it is made be within the jurisdic- tion and reach of the court. A decree for specific perform- ance passed against persons brought into court by process of 1 See Fry, Spec. Perf. sec. 3; Pomeroy, Spec. Perf. sec. 3; Water- man, Spec. Perf. sec. 1. Constant reference is made in this chapter to the works of Jus- tice Fry and Mr. Pomeroy on Specific Performance; these books should be consulted for a complete consideration of the subject. 2 Fry, Spec. Perf. sec. 123. §653-654 Specific performance. 760 publication, while binding in our own courts, would have no effect in any other court or jurisdiction. 3 A bill may be filed against a person in this State for the specific performance of a contract relating to land in another State; in such case the decree does not act directly upon the iand, 'but upon the de- fendant here, within the jurisdiction of the court. 4 §654. Absence of adequate remedy at law.— The absence of an adequate remedy at law by way of compen- sation in damages is the basis of the jurisdiction of courts of equity to decree the specific performance of contracts. 1 In a more liberal sense, the principle which is material to be con- sidered is that a court of equity gives specific performance, in- stead of damages, only when it can by that means do more perfect and complete justice; or, in other words, where dam- ages at law fall short of that redress to which one is fairly and 3 Worthington v. Lee, 61 Md. 530, 542-543. See also post, sec. 694. As to the effect of process by publication in this matter, see also ante, sec. 120, and notes; compare the statute stated in Buckingham v. Peddicord, 2 Bl. 447, 455. • 4 White v. White, 7 G. & J. 208, 211; Stansbury v. Fringer, II G. & J. 149, 152-153. Compare Carroll v. Lee, 3 G. & J. 504, 509; Buchanan v. Lorman, 3 G. 51,' 81-82; Binney's case, 2 Bl. 99, 145; Keyser v. Rice, 47 Md. 203, 211; Morton v. Grafflin, 68 Md. 545, 566; Fry, Spec. Perf. sec. 125; Carpenter v. Strange, 141 U. S. 87, 106. Code, art. 16, sec. 76, provides as follows: "Where a decree has been made for the specific performance of a contract, or the convey- ance of land, or for the sale of land, the court passing such decree shall have the same power to execute said decree, or compel a compliance therewith, in cases where the land or property lies, or parties reside, in different counties from that in which the decree was passed, as if the said parties resided, or land or property lay, in the county where the decree was passed." J Fardy v. Williams, 38 Md. 493, 502; Wadsworth v. Manning, 4 Md. 59, 70; Coale v. Barney, 1 G. & J. 324, 341; see also Williams v. Mayor, &c, 6 H. & J. 529, 533-534; Gottschalk v. Stein, 6g Md. 51, 57; Hahn v. Concordia Society, 42 Md. 460, 465-466; Gough v. Crane, 3 Md. Ch. 119, 136-137; Pomeroy, Spec. Perf. sees. 7-8, 26-28. In Cox v. Hill, 6 Md. 274, 285, it was said that a court of equity would never enforce a specific performance merely because a court of law would give nominal damages; see also Coale v. Barney, 1 G. & J. 324, 341. See the facts in Shriver v. Seiss, 49 Md. 384, 388, in which it was 761 Specific performance. §654-655 justly entitled. 2 The exercise of the jurisdiction prevents the intolerable travesty of justice involved in permitting parties to refuse performance of their contracts at pleasure by electing to pay damages at law for the breach. 3 The defence that the plaintiff has an adequate remedy at law has been modified by the statutory provision that "no court shall refuse to specific- ally enforce a contract on the mere ground that the party seek- ing its enforcement has an adequate remedy in damages, un- less the party resisting its specific enforcement shall show to the court's satisfaction that he has property from which such dam- ages may be made, or shall give bond, with approved security, in a penalty to be fixed by the court, to perform the contract or pay all such costs and damages as may, in any court of com- petent jurisdiction, be adjudged against him for breach or non- performance of such contract.'' 4 §655. Injunction and specific performance. — It is said that whenever the court grants an injunction restrain- ing the breach of any express or implied terms of a contract, it thereby pro tanto specifically enforces the performance of the ■contract. 1 Where the object of a bill is to obtain the specific held that the plaintiff could be fully indemnified by an action at law for any loss he might have sustained by the non-performance of the contract. 2 Gottschalk v. Stein, 69 Aid. 51, 56, 57. 3 Union Pac. R. Co. v. Chicago R. Co., 163 U. S. 564, 600. As to contracts containing a clause for the payment of a sum of money in the event of non-performance, see Fry, Spec. Perf. sees. 140-164; Pomeroy, Spec. Perf. sec. 50; Hahn v. Concordia Society, 42 Md. 460, 465-466; compare Rutland Marble Co. v. Ripley, 77 U. S. .339, 359-36a See the question of inadequacy of a legal remedy in Franklin Tel. Co. v. Harrison, 145 U. S. 459, 474; Joy v. St. Louis, 138 U. S. 1, 46-47; "Union Pac. R. Co. v. Chicago R. Co., 163 U. S. 564, 600-603. 4 Code, art. 16, sec. 199; act of 1888, ch. 263. 1 Fry, Spec. Perf. sec. 1147. In Burton v. Marshall, 4 G. 487, 491, it was said that where a party agreed not to do a certain thing, an in- junction restraining him from violating the covenant is in substance the decreeing the specific execution of the agreement. In Gurley v. Hiteshue, 5 G. 217, 223, it was said that all prin- ciples which apply to the case of a bill for specific performance, apply with equal force to the case of a bill for perpetual injunction, when that injunction accomplishes all the objects which could be accom- §655 Specific performance. 762 performance of a contract, and the writ of injunction is asked for as ancillary to the principal relief, an injunction cannot be granted unless the case presented by the bill is of such a char- acter as would authorize the court to enforce the contract. 2 Whether an injunction should be* granted depends upon the an- tecedent question whether such a case is presented as would justify the court in decreeing specific performan.ce of the con- tract alleged. 3 Thus, as a general rule, the court will not in- terfere by injunction to restrain the breach of a contract for the sale and delivery of chattels when it could not. decree the spe- cific enforcement of the contract ; in such a case the party in- jured by a breach of contract is left to his remedy at law.* But where the contract is one proper to be specifically enforced, the court will interfere by injunction to restrain the defendant from otherwise disposing of the subject-matter of the contract, though the negative obligation not to otherwise dispose of the property may be only implied from the positive terms of the agreement. 5 plished by the successful prosecution of a bill for specific execution ; and that this case illustrated the propriety of the principle. The question whether or not an injunction may issue to re- strain the breach of a contract which cannot be specifically enforced, has occasioned a diversity of opinion; see note to Burton v. Mar- shall, 4 G. 487, in Brantly's edition; Fry, Spec. Perf. sees. 1150-1153; Pomeroy, Spec. Perf. sees. 24-25. In Burton v. Marshall, 4 G. 487, the head-note in Brantly's Edition states the decision to be that "upon a contract affirmative in all its provisions, the execution of which could not be enforced in equity, a court of equity cannot be asked to engraft upon it a nega- tive stipulation, and restrain its breach by injunction." See the re- marks in Hahn v. Concordia Society, 42 Md. 460, 463-465. Compare Fry, Spec. Perf. sees. 852-862. 2 Geiger v. Green, 4 G. 472, 475, 477; Allen v. Burke, 2 Md. Ch. 534,, 537; Canton Co. v. Northern Central R. Co., 21 Md. 383, 399; Spear v. Orendorf, 26 Md. 37, 43; Gelston v. Frazier, 26 Md. 329, 346-347; Gelston v. Sigmund, 27 Md. 334, 343. 3 Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 294. ^Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 298-299; see also Triebert v. Burgess, 11 Md. 452, 464. 5 Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 300. In Gottschalk v. Stein, 69 Md. 51, 54, in which the plaintiff was hel4 entitled to a specific performance of a contract for the sale of certain promissory notes, it was held that he was also entitled to an injunction to restrain the defendant from collecting the notes agreed to be sold. 763 Specific performance. §656 §656. Discretion of the court. — The propositions that an application for a decree for the specific performance of a contract is addressed to the discretion of the court"; and that a decree for such relief is not a matter of right, ex debito jus- titiae, but rests in the sound discretion of the court, to be granted or refused according to the circumstances of the case; are supported and illustrated by a great number and variety of cases. 1 It does not follow as matter of course, that because the legal obligation under the contract may be perfect, that the equitable power of the court will be exercised to compel or effect specific execution. 2 Even if the contract is suffi- ciently established or admitted, it still remains with the court, as matter of sound discretion, whether under the circum- stances it will decree the specific performance. 3 The question is not what the court must do, but what it may do under the cir- cumstances ; 4 the question is whether the exercise of the power of the court is demanded to subserve the ends of justice, for , 1 Perkins \. Wright, 3 H. & McH. 324, 326; Carberry v. Tannehill, I H. & J. 224; Geiger v. Green, 4 G. 472, 475; Waters v. Howard, 8 G. ■262, 283; Tyson v. Watts, 1 Md. Ch. 13, 15; Waters v. Howard, 1 Md. Ch. 112, 116; Duvall v. Myers, 2 Md. Ch. 401, 404; Philpot v. Elliott, 4 Md. Ch. 273, 276; Wadsworth v. Manning, 4 Md. 59, 70; Crane v. Gough, 4 Md. 316, 331; Smoot v. Rea, ig Md. 398, 405; Artz v. Grove, 21 Md. 456, 470-471; Brewer v. Herbert, 30 Md. 301, 312; Maughlin v. Perry, 35 Md. 352, 357; Semmes v. Worthington, 38 Md. 298, 325; Fardy v. Williams, 38 Md. 493, 501-502; Ellicott v. White, 43 Md. 145, 150; O'Brien v. Pentz, 48 Md. 562, 577; Shriver v. Seiss, 49 Md. 384, 388; Popplein v. Foley, 61 Md. 381, 385; Emmert v. Stouffer, 64 Md. 543, 554; Kraft v. Egan, 78 Md. 36, 40. In Fry, Spec. Perf. sec. 44, it is said in reference to the rule as to discretion: "The meaning of this proposition is not that the court may arbitrarily or capriciously perform one contract and refuse to perform another; but that the court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plain- tiff's favor." See the discussion in Pomeroy, Spec. Perf. sees. 35-46. 2 Semmes v. Worthington, 38 Md. 298, 325; see also Browne v. Browne, 1 H. & J. 430, 435-436; Laurence v. Dorsey, 4 H. & McH. 205, 207. 3 Waters v. Howard, 8 G. 262, 283; Simmons v. Hill, 4 H. & McH. 252, 258. 4 Geiger v. Green, 4 G. 472, 476; Hennessey v. Woolworth, 128 U. S. 438, 442. §656-657 Specific performance. 764 unless the court is satisfied that the application to it is fair, just and reasonable in every respect, it refuses to interfere, but leaves the party to other remedies for redress. 5 §657. Discretion regulated by established rules. — The discretion exercised by the court is not an arbitrary one, but a sound judicial discretion regulated by fixed and estab- lished rules. 1 The court is controlled by the established doc- trines and settled principles upon the subject. 2 Adherence to principle may compel the court to overlook the hardship of particular cases. 3 Although the application is always ad- dressed to the discretion of the court, yet it is said that where the case is clearly and fairly established no court of equity could stop short of a decree for the full performance of the con- tract. 4 And where a contract respecting real property is in writing, and is certain, fair in all its parts, for an adequate con- sideration and capable of being performed, it is as much a matter of course for a court of equity to decree specific per- formance of it, as it is for a court of law to give damages for its breach. 5 5 Semmes v. Worthington, 38 Md. 298, 325; O'Brien v. Pentz, 48 Md. 562, 578; Kraft v. Egan, 78 Md. 36, 41; Waters v. Howard, 1 Md. Ch. 112, 116-117; Gough v. Crane, 3 Md. Ch. 119, 134; Philpot v. Elliott, 4 Md. Ch. 273, 276. 1 Griffith v. Fredk. Co. Bank, 6 G. & J. 424,439; Waters v.Howard,8 G. 262, 283; Maughlin v. Perry, 35 Md. 352, 357; Emmert v. Stouffe', 64 Md. 543, 554. See also Tyson v. Watts, 1 Md. Ch. 13, 15; Pope Mfg. Co. v. Gormully, 144 U. S. 224, 237; Nickerson v. Nickerson, 127 U. S. •668, 675-676. In Waters v. Howard, 8 G. 262, 283, it is said that the court "may ■exercise a sound, reasonable discretion, governed by rules and princi- ples, as far as may be, yet granting or withholding relief, where these rules and principles will not furnish any exact measure of justice, ac- cording to the circumstances of each case, or where the decree, under •the circumstances, would be inequitable;" see the remarks on pages 283-284. In Maughlin v. Perry, 35 Md. 352, 357, it is said that the •discretion "is guided by well established rules regarding the infirmities of all human transactions, and designed to sustain the substantial merits of the case, and promote the ends of justice between the parties." 2 Semmes v. Worthington, 38 Md. 298, 325. , 3 Brewer v. Herbert, 30 Md. 301, 312. 4 Shepherd v. Bevin, 9 G. 32, 40. 5 Popplein v. Foley, 61 Md. 381, 385; Cochran v. Pascault, 54 Md. 1, 765 Specific performance. §658-659' §658. Character of the plaintiff's case.— Relief by way of specific performance being in the exercise of an extra- ordinary function of the court 1 — in some cases an extreme medicine of the law- — the plaintiff must make out a clear case in order to obtain the interposition of the court. The court will not make a decree in a doubtful case. 3 A plaintiff, calling upon the court to enforce the specific performance of a con- tract, must come with a much stronger case than if he were acting defensively, and merely resisting such an application' made by the adverse party. 1 Grounds of defence are open to a defendant, in resisting an application, which would not avail a plaintiff seeking the aid of the court to enforce a perform- ance. 5 §659. Performance by plaintiff; tender. — It is an established principle that when a party comes into a court of equity and asks for a specific performance he must make it appear that he is able and willing to perform his part of a con- tract imposing mutual obligations. Unless the plaintiff is ready and willing to perform his part he cannot ask the court 18; Brewer v. Herbert, 30 Md. 301, 312; Artz v. Grove, 21 Md. 456, 471; Smoot v. Rea, 19 Md. 398, 405; see also Pomeroy, Spec. Perf. sees. 9-10, 35-46. iCrane v. Gough, 4 Md. 316, 332; Tyson v. Watts, 1 Md. Ch. 13, 15; Gough v. Crane, 3 Md. Ch. 119, 134; Semmes v. Worthington, 38 Md, 298, 325. 2 Shriyer v. Seiss, 49 Md. 384, 388. 3 Penn v. McCullough, 76 Md. 229, 231; Shriver v. Seiss, 49 Md. 384, 388. ^Waters v. Howard, 1 Md. Ch. 112, 116; Tyson v. Watts, 1 Md. Ch, 13, 15- In Crane v. Gough, 4 Md. 316, 332, it was said: "There are many cases where a court of equity will not exert its extraor- dinary functions to enable a party to acquire possession of a thing, but in which, nevertheless, it will refuse to disturb the possession when it has been obtained without its agency;" see also pages 329, 331. Com- pare Tuck v. Bowie, 1 Md. 87, 98; Haines v. Haines, 4 Md. Ch. 133. 135-136. 5 Kraft v. Egan, 78 Md. 36, 39; Gough v. Crane, 3 Md. Ch. 119, 133; see page 134 of this latter case in respect to the character of proof of the contract required of a defendant when he seeks to establish a part performance thereof. §659 Specific performance., 766 to decree a performance by the defendant. 1 The party seeking the execution of a contract must be able to show that he has fully, not partially, performed everything to be done on his part. 2 Thus, a vendee seeking a specific performance of a con- tract of sale must aver a compliance on his part with the terms of the contract, and offer to pay the purchase money. 3 The technical rules governing pleas of tender in actions at law are, however, inapplicable; to entitle the purchaser to demand a •deed, it is sufficient that he is ready and offers to comply with the contract on his part, and has the ability to perform it. 4 1 Carswell v. Walsh, 70 Md. 564, 507; Perm v. McCullough, 76 Md. 229, 231-232; Beard v. Linthicum, 1 Md. Ch. 345, 350; Fry, Spec. Perf. sees. 922, 948; Pomeroy, Spec. Perf. sees. 323-338; see also Rice v. D'Arville, 162 Mass. 559, 561, in which it was said that the fact that the plaintiff in default offered a bond for the performance of his con- tract made no difference; a bond is "an agreement which usually has to be enforced by a law suit." In Oliver v. Palmer, n G. & J. 426, 446, it is said that it is "one of the oldest and soundest principles of equity, that he who goes into a court of chancery invoking its interposition in his- behalf, must al- lege in his bill that he has done, or has offered to do, or is ready and willing to do, all that on his part is necessary to entitle him to the re- lief which he seeks, or he must set forth adequate reasons why he should be excused frqm doing so." 2 0'Brien v. Pentz, 48 Md. 562, 577-578; Fry, Spec. Perf. sec. 923; see also Mills v. Matthews, 7 Md. 315, 324; Small v. Owings, 1 Md. Ch. 363, 37i ; Alexander v. Ghiselin, 5 G. 138, 183. As to the failure to perform a nugatory act required by a con- tract, see Coale v. Barney, 1 G. & J. 324, 340. In Buchanan v. Lor- man, 3 G. 51, 79, it was said that "chancery requires no act to be done in vain." See Fry, Spec. Perf. sec. 935. As to performance of covenants which are conditions precedent to the right of renewal of leases, see Worthington v. Lee, 61 Md. 530, 538, 540; and post, sec. 662, note 4. Compare Michael v. Morey, 26 Md. 239, 264, as to the enforce- ment of marriage settlements by a party in default. 3 Buchanan v. Lorman, 3 G. 51, 79. 4 Smoot v. Rea, 19 Md. 398, 409-410; Maughlin v. Perry, 35 Md. 352, 358; in the latter case the plaintiffs filed their bill, tendering themselves .ready to comply with the stipulations in the contract. The court said, "the mere fact that the money was not paid, when such an offer is tendered to the court, is immaterial." Compare Kelsey v. Crowther, 162 U. S. 404, 408-409; Cheney v. Libby, 134 U. S. 68, 81; Pomeroy! Spec. Perf. sees. 360-364. 767 Specific performance. §660-661 §660. Partial performance by plaintiff.— Where the terms of an agreement have not been strictly complied with by the plaintiff, or are incapable of being strictly complied with, still if there has not been gross negligence in the plaintiff, and it is conscientious that the agreement should be performed, and if compensation may be made for any injury occasioned by the non-compliance with the strict terms, courts of equity will interfere and decree a specific performance. 1 The doctrine of courts of equity is not forfeiture, but compensation, and noth- ing but such a decree will in such cases do entire justice be- tween the parties. 2 §661. Caches on the part of the plaintiff.— Specific performance is relief which will not be granted unless the party seeking it comes promptly, and as soon as the nature of the case will permit; he cannot call upon the court unless he has shown himself ready and desirous, prompt and eager. 1 The delay of either party to a contract in not performing its terms on his part, or in not prosecuting his right to the interference of the court, by the institution of an action, or in not diligently prosecuting his action when instituted, may constitute such laches as will disentitle him to the aid of the court, and so amount, for the purpose of specific performance, to an aban- donment on his part of the contract. 2 1 Wilson v. Herbert, 76 Md. 489, 499-500; Banks v. Haskie, 45 Md. 207, 224-225; Maughlin v. Perry, 35 Md. 352, 358-359; see also Smoot v. Rea, 19 Md. 398, 406; German Sav. Inst. v. De La Vergne Co., 70 Fed. Rep. 146. See the facts in Wilson v. Herbert, 76 Md. 489, 499, in which the ten days' notice required by the contract was not particularly given, and under the circumstances was not necessary. 2 Banks v. Haskie, 45 Md. 207, 225 ; Maughlin v. Perry, 35 Md. 352, 359; Wilson v. Herbert, 76 Md. 489, 499. [§661.] iPenn v. McCullough, 76 Md. 229, 231-232; Fry, Spec. Perf. sec. 1102; compare Coale v. Barney, 1 G. & J. 324, 342; Davison v. Da- vis, 125 U. S. 90, 95; McCabe v. Matthews, 155 U. S. 550, 555-556. 2 Fry, Spec. Perf. sec. 1100. In Somerville v. Trueman, 4 H. & McH. 43, a decree was passed for the specific performance of a contract to convey land, where the contract had been fully executed on the part of the vendee and possession was had by him, although more than seventy years had elapsed from the making of the contract. In Haffner v. Dickson, 2 §662 Specific performance. 76S- §662. Time as of the essence of the contract. — In equity, time is not generally deemed as being of the essence of the contract. 1 In perfected contracts, ordinarily, the fact that the time for performance has passed will not be regarded as a reason for withholding specific execution. 2 Where the rights and remedies of the parties are mutual, the court may enforce a contract where there has not been a literal compli- ance with its terms, without inexcusable laches on the part of the plaintiff. 3 In these cases the court examines the stipula- tions of the contract, and considers the nature and circum- stances of the transaction. The object is to ascertain the lead- ing and controlling intention of the contracting parties and to- carry it into effect. In some cases the time at which an act is to be done, or a payment made, is the important and indis- pensable condition which the parties had in view, and the con- trolling consideration for making the contract; in other cases these are merely circumstances which relate to the method of attaining the purposes of the contract, and are not of a vital character. 4 In a sale of land the mere non-payment of the H. & J. 46, specific performance of a bond for conveying a tract of land, executed in 1764, was decreed on a bill filed twenty-eight years, afterwards. See also Saunders v. Simpson, 2 H. & J. 81; Beall v. Prather, 1 H. & J. 210. The delay was held too great in Ridgway v. Ridgway, 69 Md. 242, 247; Nelson v. Hagerstown Bank, 27 Md. 51, 75. See also Coale- v. Barney, 1 G. & J. 324, 342; Williams v. Mayor, &c, 6 H. & J. 529. As to relationship between the parties as an excuse for laches,, see Coale v. Barney, 1 G. & J. 324, 343; Ridgway v. Ridgway, 69 Md. 242, 247; Townsend v. Vanderwerker, 160 U. S. 171, 185-186. J Smoot v. Rea, 19 Md. 398, 406-407; Maughlin v. Perry, 35 Md. 352,. 357-359; see also Myers v. Silljacks, 58 Md. 319, 329, 332; Mayor, &c. r v. Raymo, 68 Md. 569, 573; Gilman v. Smith, 71 Md. 171, 173; and see in general Fry, Spec. Perf. sec. 1072, and the consideration of the subject in Pomeroy, Spec. Perf. sees. 370-433. 2 Coleman v. Applegarth, 68 Md. 21, 27-28. 3 Maughlin v. Perry, 35 Md. 352, 357; on page 359 it is said that "courts of equity have regard to time, so far as it respects the good faith and diligence of the parties. But if circumstances of a reason- able nature have disabled the party from a strict compliance, or if he- comes, recenti facto, to ask for a specific performance, the suit is treated with indulgence and generally with favor by the court." See Fry, Spec. Perf. sec. 1103. 4 Wilson v. Herbert, 76 Md. 489, 497; see the facts here and the in- 769 Specific performance. §662-663 purchase money on the day it was due does not generally of itself deprive a purchaser of his right to insist on a specific per- formance of a contract of sale, for the reason that in such a case time is not ordinarily of the essence of the contract, the pay- ment of interest in the meantime being considered as a com- pensation to the vendor. 5 But a vendee may lose his right to a specific performance by gross laches and unreasonable delay in paying the purchase money. 6 §663. When time is of the essence.— But while the general rule is that time is not of the essence of the contract, yet there are well defined exceptions. If the parties have ex- pressly treated time as of the essence of the agreement, or if it necessarily follows from the nature and circumstances of the agreement that it should be so regarded, courts of equity will not lend their aid to enforce specifically the agreement, re- gardless of the limitation of time. 1 Where there is a want of mutuality in the contract time is essential as well in equity as at law, because it is not the province of a court of equity more than a court of law to relieve parties from the substantial per- stances cited by the court. Compare especially Scarlett v. Stein, 40 Md. si 2, 525-526. In Banks v. Haskie, 45 Md. 207, 224-225, it was held that under a covenant for renewal of a lease for ninety-nine years if made "at any time during the continuance of this present demise," the owner of a leasehold interest is entitled to a renewal of the lease, although the ap- plication is not made during the continuance of the lease, provided the application be made in a reasonable time thereafter; but gross laches in making the application would be a bar to relief. In Myers v. Silljacks, 58 Md. 319, 333-334, gross laches and other circumstances prevented a decree for specific performance. See also Worthington v. Lee, 61 Md. 530, 538, 540. 5 Derrett v. Bowman, 61 Md. 526, 528; Wilson v. Herbert, 76 Md. 489, 498; on page 499 of the latter case it is said that this is one of the cases to which the maxim may justly be applied that "the doctrine "of equity is not forfeiture, but compensation." See also Smoot v. Rea, 19 Md. 398, 406; Gilman v. Smith, 71 Md. 171, 173. 6 Smoot v. Rea, 19 Md. 398, 406; Derrett v. Bowman, 61 Md. 526, 528. iColeman v. Applegarth, 68 Md. 21, 28; Maughlin v. Perry, 35 Md. 352, 359; see also Derrett v. Bowman, 61 Md. 526, 528; Myers v. Sill- jacks, 58 Md. 319, 332-333; Reed v. Chambers, 6 G. & J. 490, 494-495; Fry, Spec. Perf. sees. 1075-1099. 49 * §663-664 Specific performance. 770 formance of their contracts. 2 But even when time is made material, by express stipulation, the failure of one of the par- ties to perform a condition, within the particular time limited, will not in every case defeat the right to a specific performance, if the condition be subsequently performed without unreason- able delay and no circumstances have intervened that would render it unjust or inequitable to give such relief. 3 §664. Contracts respecting chattels. — As a general rule courts of equity will not decree the specific performance of a contract for the sale of goods and chattels, for the reason that an action at law for the breach of the contract affords as complete a remedy for the purchaser as the delivery of the goods. 1 Damages at law, calculated on the market price of the goods and chattels bargained for, furnish, in ordinary cases, an adequate redress to the purchaser for the breach of the bargain by the vendor. 2 The rule does not depend upon any distinction between realty and personalty, but because courts of law in such cases are generally competent to afford a com- plete remedy by damages. 3 2 Maughlin v. Perry, 35 Md. 352, 357; in this case a landlord rented property to a tenant for a period, and covenanted to sell the same to the tenant for certain sum at any time before the expiration of the lease. Under the circumstances of the case it was held, page 360, that the time was material, and that the tenant was bound to make his elec- tion before the lease expired. In Coleman v. Applegarth, 68 Md. 21, 28, time was held to be of the very essence of the agreement; the agreement in considera- tion of five dollars gave an option to purchase a lot of ground for a certain sum at any time before a certain date. When the time limited expired, the contract was at an end, and the right of option was gone. See also the facts in Gilman v. Smith, 71 Md. 171; and compare Kel- sey v. Crowther, 162 U. S. 404, 408-409. 3 Cheney v. Libby, 134 U. S. 68, 78; see the peculiar facts here, where there was a scheme by the defendant to bring about the non-perform- ance of the contract by the plaintiff. iGottschalk v. Stein, 69 Md. 51, 55-56; see also Waters v. Howard, 1 Md. Ch. 112, 118; Fry, Spec. Perf. sec. 78; Pomeroy, Spec. Perf. sec. 11. 2 Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 299. 3 Sullivan v. Tuck, 1 Md. Ch. 59, 63; Triebert v. Burgess, 11 Md. 452, 464; German Home v. Hammerbacker, 64 Md. 595, 608. 771 Specific performance. §665 §665. Exceptions to the rule as to chattels.— But there are many exceptions to this, general rule, founded principally upon the inadequacy of the remedy at law in the particular case, or the special and peculiar nature and value of the subject-matter of the contract. Thus in a case where it would be impossible, or at all events, extremely difficult, for a court of law to give the plaintiff adequate damages, specific performance may be decreed. 1 Whenever the party cannot have at law a full and satisfactory remedy, a court of equity will grant relief. 2 Thus it is well settled that where there is an agreement to buy a specific chattel for a specific purpose, and this purpose can only be answered by the delivery of the chattel itself; or where from the nature of the subject-matter of the agreement, the measure of damages must necessarily be uncertain; or where damages will not be as beneficial to the purchaser as the performance of the contract, equity will in- terfere, and decree the specific performance of the contract, because in such cases an action at law for the breach of the contract will not afford a complete and adequate remedy. 3 1 Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 299-300; in this case the allegation was that the coal tar contracted to be supplied by the defendant for the period of five years was indispensable to the business of the plaintiff, "and that the latter cannot otherwise obtain a supply in the city of Baltimore, and that if the defendant were per- mitted to withhold the supply, the plaintiff would be subjected to great additional expense and labor in procuring the material from distant cities. This gives the material a special and peculiar value to the plain- tiff in Baltimore and makes it specially inequitable in the defendant to refuse to perform its agreement." See the instances stated on pages 299-300. In Sullivan v. Tuck, r Md. Ch. 59, 64, it is said that "wherever a violation of the contract cannot be correctly estimated in damages, and the calculation is to proceed upon conjecture, or wherever from the nature of the contract a specific performance is indispensable to justice, this court will not be deferred from interfering, because per- sonal property is the subject of the agreement." 2 German Home v. Hammerbacker, 64 Md. 595, 608; Triebert v. Burgess, n Md. 452, 464; Sullivan v. Tuck, 1 Md. Ch. 59, 63. 3 Gottschalk v. Stein, 69 Md. 51, 56. In Fry, Spec. Perf. sec. 79, it is said: "When the chattel in ques- tion is unique, when there is, over and above the market value, that which has been called the pretium affectionis, the court, whether the plaintiff's right has arisen from contract or not, has interfered and §665-666 Specific performance. 772 A contract to sell a specific debt is an illustration of this prin- ciple. Thus where the contract was to sell certain promissory notes of an insolvent firm, the damages at law for a breach would be uncertain, because they would depend upon the un- certain personal ability of the makers of the notes to pay the amount due; the leg*al remedy would thus fall short, and would ' not therefore be as beneficial as a specific performance of the contract. 1 §666. Contracts to devise. — A contract to devise real estate, if shown to be in all respects fair, just and reasonable, founded on sufficient consideration, and if there be no doubt on the proof as to any of its terms, may be enforced by a spe- cific performance, by way of conveyance by trustee appointed for the purpose, as against the heirs or devisees of the party obligating himself to devise. 1 Such contracts are within the statute of frauds, and there are considerations which should subject them to a more rigid application of the statute than other contracts. 2 In cases where the property has been de- not left him to his common law remedy.'' Some of the cases are grounded on tort, and others on contract. The jurisdiction may be exercised also in cases of chattels, which, though not unique, possess a special and peculiar value to the plaintiff; sec. 85. See also Pomeroy, Spec. Perf. sees. 12-16; Gough v. Crane, 3 Md. Ch. 119, 137. 4 Gottschalk v. Stein, 69 Md. 51, 56-57; but if the makers of the nqtes were perfectly solvent, there would be no difficulty in determin- ing the measure of damages; here the action was by the vendee against the vendor. The court cites instances of the specific performance of contracts for the sale of a certain specific debt, and of uncertain fu- ture dividends out of a bankrupt estate. As to contracts for the sale of stocks, see Pomeroy, Spec. Perf. sees. 17-19; Ross v. Union Pac. R. Co., 1 Woolw. 26, 32-34; New England Trust Co. v. Abbott, 162 Mass. 148, 154; Cook on Stock, &c, sees. 337-338; Rider v. Gray, 10 Md. 282, 300. 1 Semmes v. Worthington, 38 Md. 298, 318; Wilks V. Burns, 60 Md. 64, 70-71; see the limitation upon the rule as declared in this latter case. See also Frisby v. Parkhurst, 29 Md. 58, 68, and Whitridge v. Parkhurst, 20 Md. 62, 85. Compare Busey v. McCurley, 61 Md. 436, 443-444, 448, stated in West Boundary Co. v. Bayless, 80 Md. 495, 504-505; Simmons v. Hill, 4 H. & McH. 252, 255-256; Browne v. Browne, 1 H. & J. 430: Colegate D. Owings' case, 1 Bl. 370, 402-403. 2 Mundorff v. Kilbourn, 4 Md. 459, 463; see also Semmes v. Wor- thington, 38 Md. 298, 326. 773 Specific performance. §666-667 vised to other parties, the utmost certainty is required, as by the enforcement of the contract, the court undertakes to set aside a solemn testamentary act of the deceased party. 3 The most stringent doctrines of the court should be applied in such cases, especially where the alleged agreement is not in writ- ing. 4 §667. Contracts to create lien. — Under the maxim that equity regards as done that which was agreed to be done, a court of equity may specifically execute a contract for a mort- gage or other equitable lien on real or personal property, 1 provided it can be done consistently with the rights and equi- ties of others, and in a reasonable time after the alleged prom- ise was made. 3 A contract which creates a specific lien on real property has a superior equity to the general lien of a subse- quent judgment. 3 But such a contract cannot be enforced against subsequent creditors, 4 or purchasers for value without notice. 5 A mortgage defectively executed may be treated as an agreement intended to secure a debt, and its execution may be coerced according to the design of the parties. 6 A parol 3 Semmes v. Worthington, 38 'Md. 298, 318, 322; Wilks v. Burns, 60 Md. 64, 68; Mundorff v. Kilbourn, 4 Md. 459, 463-464; on page 319 of the first mentioned case, it is said, "seeing to what standard the proof must be measured, we are of opinion that the plaintiff has failed to relieve his case of all rational doubt as to the factum of the contract alleged;" and see pages 324-325. Compare Williams v. Ship- ley, 67 Md. 373, 382. 4 Mundorff v. Kilbourn, 4 Md. 459, 464. 1 Alexander v. Ghiselin, 5 G. 138, 181; see Brantly's notes to this case, and the facts as stated in Nelson v. Hagerstown Bank, 27 Md. Si, 73; Sullivan v. Tuck, 1 Md. Ch. 59, 62; Triebert v. Burgess, 11 Md. 452, 464; Phoenix Ins. Co. v. Ryland, 69 Md. 437, 446; Winn v. Albert, 2 Md. Ch. 169, 175. See the facts in Cole v. Cole, 41 Md. 301; Sander- son v. Stockdale, 11 Md. 563, 571-572; Girault v. Adams, 61 Md. 1; G. Ober & Sons Co. v. Keating, 77 Md. 100, 102. 2 Nelson v. Hagerstowti Bank, 27 Md. 51, 70. 3 Moale v. Buchanan, 11 G. & J. 314, 326; see also Alexander v. Ghise- lin, 5 G. 131, 181. 4 Nelson v. Hagerstown Bank, 31 Md. 51, 72-74; compare Sullivan v. Tuck, 1 Md. Ch. 59, 62; Thomas v. Farmers' Bank, 32 Md. 57, 69-70. 5 Gill v. McAttee, 2 Md. Ch. 255, 267-268; compare Price v. McDonald, 1 Md. 403, 414; Brown v. Deford, 83 Md. 297, 310. 6 Tiernan v. Poor, 1 G. & J. 216, 227-228; see also Carson v. Phelps, §667-668 Specific performance. 774 contract to execute a mortgage of personal property may be specifically enforced, 7 if based upon a valuable consideration and if not required by the statute of frauds to be in writing. 8 §668. Certain other contracts. — Certain classes of contracts are, from their nature, such that they cannot properly be decreed to be specifically performed. 1 Thus contracts for hiring and service, of a personal and confidential character, cannot be enforced; 2 so also a contract to perform as an ac- tress. 3 A contract for the reference of a dispute to arbitra- tion cannot be enforced;* nor a contract to build a railroad; 5 40 Md. 73, 99; Dyson v. Simmons, 48 Md. 207, 214-215; Price v. Mi- Donald, 1 Md. 403, 414-415; Moncrieff v. Goldsborough, 4 H. & McH. 281, 282-283; Valentine v. Seiss, 79 Md. 187, 190; post, sec. 678, note 1. 'Alexander v. Ghiselin, 5 G. 138, 182; Triebert v. Burgess, 11 Md. 452, 464; Sullivan v. Tuck, 1 Md. Ch. 59, 62; in this latter case the de- fendant's testator entered into a contract with the plaintiffs, by which they were to become his agents for the sale of his crops, advance him money and accept his drafts, for the payment of which he pledged his crops on hand and the growing crops of the year 1847. Plaintiffs made advances, and, upon the death of the testator, filed their bill for the specific enforcement of the contract, claiming a lien upon the property. It was held that the contract should be specifically per- formed. Compare Brown v. Deford, 83 Md. 297. 8 Triebert v. Burgess, n Md. 452, 464. 1T .n Fry, Spec. Perf., the following classes of contracts are con- sidered: where the contract is such as the court cannot perform, sees. 90-93; where the performance of the contract would be useless, sees 94-97; where the court would be unable to enforce its judgment, sees. 98-109; where the enforced performance would be worse than the non- performance, sees. 110-115. See also Pomeroy, Spec. Perf. sees. 16, 20, 303-312. 2 Fry, Spec. Perf. sec. no; Pomeroy, Spec. Perf. sees. 22, 310. 3 Burton v. Marshall, 4 G. 487, 490-493; compare Hahn v. Concordia ■ Society, 42 Md. 460, 464-465. 4 Contee v. Dawson, 2 Bl. 264, 276; compare Emery v. Owings, 7 G. 488, 499-500; Wallingsford v. Wallingsford, 6 H. & J. 485, 490; Fry, Spec. Perf. sees. 1600-1603. > In Somerville v. Trueman, 4 H. & McH. 43, 47, it was said that "this court never has decreed the performance of an award, un- less on consideration of a subsequent agreement to perform it." Com- pare Witz v. Tregellas, 82 Md. 351, 362-363; Fry, Spec. Perf. sees. 1586-1599; Pomeroy, Spec. Perf. sees. 21, 291. 6 Texas R. Co. v. Marshall, 136 U. S. 393, 407. As to contracts for building and construction, see Pomeroy, 775 Specific performance. §668-669 nor a perpetual contract; 6 nor to convey property which has no existence. 7 Specific performance has been decreed of a con- tract to insure; 8 of a covenant for further assurance; 9 of con- tracts to compromise; 10 of a railroad's contracts for running arrangements, including the use of its track, and connections. 11 §669. Mistake in the contract. — It is a well estab- lished rule that in suits for the specific performance of agreements, even when written, the defendant may, by means of parol evidence, show that through the mistake of both or either of the parties, the writing does not express the real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter, or as to its terms. In short, the court will not grant its affirmative remedy to com- pel the defendant to perform a contract which he did not in- tend to make, or which he would not have entered into had its true effect been understood. 1 There are many cases in which Spec. Perf. sec. 23; Fry, Spec. Perf. sees. 98-106; Ross v. Union Pac. R. Co., 1 Woolw. 26, 37-48; West Boundary Co. v. Bayless, 80 Md. 495, 498-501, 505- 6 Texas R. Co. v. Marshall, 136 U. S. 393, 407; see also Rutland Marble Co. v. Ripley, tj U. S. 339, 358. 'Kennedy v. Hazelton, 128 U. S. 667, 671; here the contract was to assign to the plaintiff any patents the defendant might obtain for cer- tain improvements. 8 Phoenix Ins. Co. v. Ryland, 69 Md. 437, 446, 448; in this case the en- try of an insurance risk was coerced. Compare Thomas v. Von.Kapff, 6 G. & J. 372. "Cochran v. Pascault, 54 Md. 1, 16. In Dean v. Adler, 30 Md. 147, 154, specific performance of a certain covenant was refused because the lessor had no power to make a bind- ing covenant of that character. In Lynn v. Mt. Savage Iron Co., 34 Md. 603, 638, it was held that specific performance could not be had of the covenant there, not running with the land. 10 Fry, Spec. Perf. sec. 1578. "Union Pac. R. Co. v. Chicago R. Co., 163 U. S. 564, 600-603. In Wadsworth v. Manning, 4 Md. 59, 69, it was said: "We re- gard the agreement of date, the first day of December, 1849, as estab- lishing a partnership between the complainant and those who at that time constituted the firm of Stimpson, Manning & Co., and did this appear to us to be a proper case, we would decree a performance of it"; see Fry, Spec. Perf. sees. I54°-I545; Pomeroy, Spec. Perf. sec. 290. iKraft v. Egan, 78 Md. 36, 39; in this case the vendor sued the vendee, §669-670 Specific performance. 776 parol evidence has been received at the instance of the plain- tiff, to rectify a contract in writing, and in which the contract so rectified has 'been specifically enforced. 2 In such cases the mistake must be made out in the most clear and unequivocal manner, 3 and the proof must be full, satisfactory and conclu- sively convincing to justify the court's interposition.* Before the agreement will be reformed, and executed as reformed, the court must be perfectly satisfied what the real intention of the parties was, or otherwise it will not interfere. 5 §670. Execution of contract prevented by fraud. — That a court of equity will decree the specific performance of a contract where the execution of the contract was prevented by fraud is very clearly laid down. 1 Where the plaintiff seeks a decree for the specific performance of a contract which he alleges the defendant has fraudulently withheld or fraudu- lently refused to execute, the court may enforce the production of the contract if withheld, or compel its execution if the execu- and the latter in his answer alleged that the written agreement did not correctly state the contract between the parties, and that the contract had been signed by mistake, and it was so held by the court; see also the instance on page 41. As to mistakes set up by the defendant, see Pomeroy, Spec. Perf. sees. 243-258. 2 Moale v. Buchanan, n G. & J. 314, 325; Popplein v. Foley, 61 Md. 381, 386-387; Wood v. Patterson, 4 Md. Ch. 33s, 339; see Brantly's note to this case for the Maryland authorities upon the subject of mistake. See also Atlantic Coal Co. v. Md. Coal Co., 62 Md. 135, 142; Phoenix Ins. Co. v. Ryland, 69 Md. 437, 446; Wesley v. Thomas, 6 H. & J. 24, 28; Gough v. Crane, 3 Md. Ch. 119, 135; Bickham v. Gough, 4 H. & McH. 17, 19-20; Hall v. Clagett, 2 Md. Ch. 151, 152; Philpot v. Elliott, 4 Md. Ch. 273; Fry, Spec. Perf. sees. 811-817; Pomeroy, Spec. Perf. sees. 259-266. In Popplein v. Foley, 61 Md. 381, certain contracts for the lease of lots were wanting in certainty in that they omitted to state the length of the terms. It was alleged that the omission was by mistake. It was held that the mistake was satisfactorily proved by the parol evi- dence, and that the lessors were entitled to a decree reforming the con- tracts, and directing their specific performance as reformed. sHall v. Clagett, 2 Md. Ch. 151, 153; Philpot v. Elliott, 4 Md. Ch. 273. 275. 4 Phoenix Ins. Co. v. Ryland, 69 Md. 437, 446. 5 Philpot v. Elliott, 4 Md. Ch. 273, 275. 1 German Home v. Hammerbacker, 64 Md. 595, 608. 777 Specific performance. §670-671 tion has been delayed; and this without regard to the question whether or not its provisions are such as the court could de- cree to 'be specifically performed. 2 Upon clear proof that a contract has been made to do something, the consummation of which involves the execution of a written instrument, which is afterwards refused to be made, the court will coerce the ex- ecution of the written contract which the parol evidence has shown was agreed upon. 3 §671. Specific performance of gifts. — Equity pro- tects a parol gift of land, by decreeing a specific performance, equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property by the ex- penditure of labor or money. 1 The proof must be clear, defi- nite and conclusive as to the fact of the gift, and of those acts done on the faith of it which render inequitable any attempt by the donor to avoid the gift. Where the proof is thus clear, 2 Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 298; compare Gough v. Crane, 3 Md. Ch. 119, 129. 3 Phoenix Ins. Co. v. Ryland, 69 Md. 437, 446; in this case the execu- tion of an entry in an open insurance policy was decreed. 1 Hardesty v. Richardson, 44 Md. 617, 624; in this case a father bought a farm for his son with the distinct understanding that his son should at once take possession, hold and use it as his own. The son was for several years in exclusive possession and enjoyment of the farm. He insured the improvements in his own name, and made alterations and improvements on it, with the approbation of his father, who represented to other parties that he had given the farm to his son. A specific per- formance was decreed. The case is cited in Riggles v. Erney, 154 U. S. 244, 253. In Duckett v. Duckett, 71 Md. 357, 360, the facts were very simi- lar to those in the case last above stated. The father also made a will devising to his son the land verbally given to him. It was held that the son was entitled to compensation for the improvements made by him, but that whether he was entitled to a decree for the immediate conveyance of the property would not be decided upon demurrer to the bill. Compare Dugan v. Gittings, 3 G. 138, 156-157; Waters v. How- ard, 8 G. 262, 282-283; Black v. Cord, 2 H. & G. 100, 101-103; Stoddert v. Tuck, 4 Md. Ch. 475, 483. With respect to gifts under marriage contracts, see also post, sec. 710. , ' I §671-672 Specific performance. 778 and all other conditions are shown to exist to entitle the party to the assistance of a court of equity, that court will not hesi- tate to lend its aid, simply because the proof may rest entirely in parol. 2 §672. Compensation in lieu of specific perform- ance. — Where specific performance cannot be decreed because of uncertainty in the terms of the agreement, insuffi- ciency of proof to clearly establish the precise contract alleged, or by reason of the statute of frauds being relied on in defence, a court of equity will, when there is no remedy at law, or it is uncertain or embarrassed, or under circumstances of special equity, render relief by way of compensation to the extent of money actually paid upon the alleged contract, and the value of beneficial and lasting improvements. 1 But the power to grant 2 Hardesty v. Richardson, 44 Md. 617, 621. As to enforcing voluntary settlements against the settler, at the instance of a wife or child, see Haines v. Haines, 6 Md. 435, 444; Cox v. Hill, 6 Md. 274, 287; Michael v. Morey, 26 Md. 239, 264-265. iGirault v. Adams, 61 Md. 1, 12; Powell v. Young, 45 Md. 494, 497; Green v. Drummond, 31 Md. 71, 8s; Nelson v. Hagerstown Bank, 27 Md. 51, 76; Rider v. Gray, 10 Md. 282, 300; Bowie v. Stonestreet, 6 Md. 418, 431. See also Shepherd v. Bevin, 9 G. 32, 40-41; Thomas v. Von Kapff, 6 G. & J. 372, 382. In Rider v. Gray, 10 Md. 282, 300, it was said that compensation has been granted in cases for the transfer of stock, in which class of contracts specific performance is not generally decreed; see ante, sec. 665, note 4. In Girault v. Adams, 61 Md. 1, it was alleged that the plaintiff loaned money to the defendant under an express agreement that the plaintiff should be secured by a mortgage on certain property upon which the money was expended. It was held that the precise con- tract as alleged was not so satisfactorily established as to justify a de- cree for specific performance; but compensation was given by direct- ing a sale of the property to satisfy the loan, unless repaid within a certain period. In Green v. Drummond, 31 Md. 71, the plaintiff purchased property jointly with the ancestor of the defendants under a parol agreement between them, but before the deed was executed, the an- cestor died. The agreement being a parol one, no action could be brought thereon at law, against the defendants. The court granted relief by way of a decree against the personal representatives of the ancestor, as a general creditor; stated in Drummond v. Green, -35 Md. 779 Specific performance. §672 relief by way of compensation, as a general rule, exists only as ancillary or incidental to the power to grant other relief; and it is only under special circumstances, and upon peculiar equities, as for instance, in cases of fraud, or where the party has dis- abled himself, by matters ex post facto, from a specific perform- ance, or where there is no adequate remedy at law, that the court awards pecuniary compensation in lieu of other relief. 2 148, and Schroeder v. Loeber, 75 Md. 195, 200. Cited in Garrett v. Lake Roland R. Co., 79 Md. 277, 297, per Bryan, J. In McNamee v. Withers, 37 Md. 171, 177, it is said if one person expends his money in making beneficial improvements on the land of another, upon the faith of a parol contract by the latter to convey, and if specific performance of the contract cannot be decreed because of the uncertainty in the proof of its terms, a court of equity will decree compensation to the extent of the value of such improvements, and in some cases will grant relief by declaring the same to be an equitable Hen upon the property; see the requirements as to the proof; citing King's Heirs v. Thompson, 9 Peters, 204, which is stated in Shep- herd v. Bevin, 9 G. 32, 41. See also Bowie v. Stonestreet, 6 Md. 418, 433; Duckett v. Duckett, 71 Md. 357, 360. See also the instances in Nelson v. Hagerstown Bank, 27 Md. 51, 76; Bowie v. Stonestreet, 6 Md. 418, 430-431; Ellicott v. White, 43 Md. 145, 153. As to compensation when a defendant has disabled himself in whole or in part from performing the contract, see Townsend v. Van- derwerker, 160 U. S. 171, 180-182. In Powell v. Young, 45 Md. 494, 498, the vendor disabled himself from performing the contract, acting fraudulently with his brother; upon a bill by the purchaser, it was held that the contract could not be specifically enforced, but the vendor and his brother, by whose fraud the specific performance of the contract was rendered impossible, were decreed to repay the sum paid to the vendor, with interest from the date of payment. As to compensation when specific performance is decreed al- though the plaintiff is not able to fully perform his part of the con- tract, see ante, sec. 660. 2 Busey v. McCurley, 61 Md. 436, 448; West Boundary Co. v. Bay- less, 80 Md. 49s, 506; Powell v. Young, 45 Md. 494, 497; Green v. Drummond, 31 Md. 71, 84; Rider v. Gray, 10 Md. 282, 300. In Powell v. Young, 45 Md. 494, 497, the expression is "if there be no remedy at law, or if it is uncertain or embarrassed." In Rider v. Gray, 10 Md. 282, the plaintiff paid a sum of money to the defendant in part performance of the contract, and thereafter sought its specific performance by the defendant; the court held the contract to be lacking in mutuality, and unenforceable, but decreed a refund of the amount paid, and that the interest of the defendant in §673 Specific performance. 780 §673. Other matters respecting compensation.— Where the object of the bill is to compel a specific performance, and that is the special relief prayed, but the bill also contains a prayer for general relief, the court may, in a proper case, de- cree compensation under the general prayer. 1 In some cases the question of the amount of compensation is directed to be tried upon an issue of quantum damnificaius; and in others by reference to a master; but where the measure of compensa- tion is matter of construction, or where it is dependent upon data plainly apparent to the court, no such reference is neces- sary. 2 Where compensation is granted for purchase money expended, the measure of compensation is the amount of the money with interest thereon from the time of payment. 3 In some cases the decree for compensation makes the plaintiff a general creditor of the defendant; 4 and in other cases a spe- cific lien may be given against a particular property. 5 the property concerned should be held as security for the repay- ment. See the facts in Busey v. McCurley, 61 Md. 436, as stated in West Boundary Co. v. Bayless, 80 Md. 495, 504-505. i-Powell v. Young, 45 Md. 494, 496-497; compensation in this case was not beyond the general scope and object of the bill, but arose out of the alleged contract and part performance thereof by the plain- tiff. See also Girault v. Adams, 61 Md 1 . 1, 10; compare Bowie v. Stonestreet, 6 Md. 418, 433, in which the defendant did not make a claim for compensation in the answer. 2 Busey v. McCurley, 61 Md. 436, 449; Rider v. Gray, 10 Md. 282, 300. In Green v. Drummond, 31 Md. 71, 86, as there was an absence of satisfactory evidence with regard to the precise amount, the case was referred to the auditor to state an account. In Drummond v. Green, 35 Md. 148, 153, on a second appeal, it was said that if the proof in the case on the first appeal had been sufficient to establish the pre- cise amount due, the court of appeals would have decreed the payment of the same, instead of remanding the cause. 3 Green v. Drummond, 31 Md. 71, 86; Powell v. Young, 45 Md. 494, 500; Rider v. Gray, 10 Md. 282, 300; Bowie v. Stonestreet, 6 Md. 418, 432-433- 4 As in Green v. Drummond, 31 Md. 71, 86-87; Powell v. Young, 45 Md. 494, 496, 500; Bowie v. Stonestreet, 6 Md. 418, 433. 5 As in Rider v. Gray, 10 Md. 282, 301;. Girault v. Adams, 61 Md. 1, 13; McNamee v. Withers, 37 Md. 171, 177; Duckett v. Duckett, 71 Md. 357, 360. 781 Specific performance. §674 §674. Who may sue and be sued. — The incapac- ity to contract on the part of either of the parties to a contract furnishes ground on which that party may resist specific per- formance; and, on the principle of mutuality, it may also fur- nish a defence to the other party though himself perfectly com- petent. The questions as to the capacity of persons to con- tract, as raised in actions for specific performance, are for the most part identical with the questions as discussed at common law. 1 An executory contract entered into by an infant can not be decreed to be specifically performed, unless it be con- firmed by Mm after arrival at full age. 2 The court has refused to enforce a contract made with an imbecile. 3 A married woman may obtain a decree for specific performance against her husband upon an ante-nuptial agreement;* and a decree 1 Fry, Spec. Perf. sees. 270-271; Pomeroy, Spec. Perf. sees. 53-55; as to the capacity of parties to contract, see Brantly on Contracts, 79-94; as to mutuality, see post, sees. 685-686. As to ultra vires in this connec- tion see Fry, Spec. Perf. sees. 487-495; Pomeroy, Spec. Perf. sec. 56. As to parties in cases of specific performance, see ante, sec. 64. 2 Brawner v. Franklin, 4 G. 463, 469; Moale v. Buchanan, 11 G. & J. 314, 317. 327- 3 Reinicker v. Smith, 2 H. & J. 421, 424. Compare Park Presby- terian Church v. Forrest, circuit court of Baltimore city, opinion of Dennis, J., reported in Daily Record, February 26, 1896. See code, art 16, sec. 116, which provides for the confirmation of any contract for the sale of land, &c., on behalf of any infant, idiot or person non compos mentis, and the execution of a deed according to the contract; ante, sec. 397, note 1. ■ Code, art. 16, sec. 85, provides: "where an infant, or person non compos mentis, is entitled to any, real or personal property in this State bound by any contract, or where an infant or a non compos mentis claims any right in such property under any contract, the court, in either case, shall have the same power to decree the execution of such contract, or to pass any just and proper decree that the court would have if all the parties were of full age and sound mind; provided, that in all decrees for specific performance of a contract against an infant, such infant may, at any time within six months after he arrives at full age, have review of such decree; and if such infant dies under age, his heir or proper representative may have a review of such decree either within six months after the death of such infant, or within six months after such heir or representative attains full age." *Crane v. Gough, 4 Md. 316, 331, 334. See also Bowie v. Stonestreet, 6 Md. 418, 430; Stockett v. Holliday, 9 Md. 480, 498; Schroeder v. Loeber, 75 Md. 195, 199-200; Wallingsford v. Wallingsford, 6 H. & J. 48S, 490- . §674-675 Specific performance. 782 may be entered against her upon a contract for the conveyance of her real estate if properly executed under the statute. 6 A married woman has been held entitled to maintain a suit upon a contract made between her husband and her father for her benefit. 6 A creditor before judgment, and before he has a cer- tain claim upon the property of his debtor, has no right to call for the specific execution of the debtor's contracts for the ben- efit of the creditor. 7 §675. Allegations in the bill. — In cases for specific performance the bill must accurately state the terms of the con- tract, so that it may appear to the court to possess all the ele- ments necessary to entitle the plaintiff to relief; this applies, for ■. example, 'in cases where a bill is filed by a purchaser, or some one in privity with him, having knowledge of the contract. 1 But where the plaintiffs are strangers to the contract, and have not full and particular knowledge of its terms, such strictness is not required. 2 It is necessary that the bill should fully and exactly diisclose the nature and extent of the legal rights and in- terests of those against whom the restraining and coercive power of the court is invoked. 3 5 Klecka v. Ziegler, 81 Md. 482; compare Burton v. Marshall, 4 G. 487, 493; Miller v. Williamson, 5 Md. 219, 234; Steffey v. Steffey, 19 Md. 5, 12-13; Berry v. Cox, 8 G. 466, 471-472. e McNamee v. Withers, 37 Md. 171, 179. 'Griffith v. Fredk. Co. Bank, 6 G. & J. 424, 437-438. !Light St. Bridge Co. v. Bannon, 47 Md. 129, 143; Semmes v. Wor- thington, 38 Md. 298, 318; Ellicott v. White, 43 Md. 145, 150; O'Brien v. Pentz, 48 Md. 562, 577; Carswell v. Walsh, 70 Md. 504, 507; Allen v. Burke, 2 Md. Ch. 534, 538-539; Atlantic Coal Co. v. Maryland Coal Co., 62 Md. 135, 142. As to allegations in a bill involving the title to real estate, see post, sec. 690, note 3. 2 Light St. Bridge Co. v. Bannon, 47 Md. 129, 143; especially where the only defects in the averments of the bill have been or may be sup- plied by the proof. 3 Worthington v. Lee, 61 Md. 530, 536; in this case the allegations in the bill for a specific performance of a covenant for the renewal of a lease were held not sufficiently specific and definite in reference to the parties and their rights in the property involved; page 535. 783 Specific performance. §676-677 §676. Proof of the contract. — In respect to the character of proof required to establish a contract sought to be enforced, it is the duty of the plaintiff to make out the case set up in the bill with such distinctness, certainty and legality in all its parts that the court may have no difficulty in deciding exactly what the contract was. 1 The proof must be clear and explicit, leaving no room for reasonable doubt, 2 and must in every essential particular correspond with the terms of the contract set up in the bill. 3 §677. Frame Of decree.— Where it appears that each party must do some act, one decree may be passed, in favor of each party for that to which he is entitled; as that the one convey the property/ and the other pay the purchase money. 1 The 1 Girault v. Adams, 61 Md. i, 10; Fardy v. Williams, 38 Md. 493, 502; Ellicott v. White, 43 Md. 145, 150. 2 Semmes v. Worthington, 38 Md. 298, 318; Alexander v. Ghiselin, 5 G. 138, 182; Gill v. McAttee, 2 Md. Ch. 255, 262; see also Wilks v. Burns, 60 Md. 64, 68; Penn v. McCullough, 76 Md. 229, 231; Dalzell v. Dueber Watch Co., 149 U. S. 315, 326; Nickerson v. Nickerson, 127 U. S. 668, 677. In Myers v. Forbes, 24 Md. 598, 611, quoting Stoddert v. Tuck, S Md. 18, 28, it was said: "it is not only necessary to prove that an agreement was made, but the terms of the agreement must be so clear- ly and fully shown as that the court can have no difficulty in knowing what the terms are, so as to be certain of carrying into effect the con- tract made by the parties. Passing a decree for specific execution upon proof short of this, instead of executing the agreement of the parties, would be making one for them, which the court certainly has no authority to do.'' Compare Emery v. Owings, 7 G. 488, 499. 3 Semmes v. Worthington, 38 Md. 298, 318; Carswell v. Walsh, 70 Md. 504, 507; Ellicott v. White, 43 Md. 145, 150; O'Brien v. Pentz, 48 Md. S62, 577; Mundorff v. Kilbourn, 4 Md. 459, 462; Atlantic Coal Co. v. Maryland Coal Co., 62 Md. 13S, 142; Carr v. Hobbs, 11 Md. 285, 294. In Beard v. Linthicum, 1 Md. CI1.-345, 349, it was said that the "identical contract in all its parts as set up in the bill must be proved"; see also page 348. In Price v. Tyson, 3 Bl. 392, 398, it is said that the defendant may set forth the agreement which was really entered into between them, and the plaintiff may then amend his bill and take a decree accordingly, thereby waiving all claim founded on the contract as set forth in his bill. [§677.] iDorsey v. Campbell, 1 Bl. 356, 359; Etchison v. Dorsey, 1 Bl. S3S, S36-S37; Colegate D. Owings' case, 1 Bl. 370, 404; a cross bill is not §677 Specific performance. 784 decree may direct the vendee to pay or hiring into court the purchase money, and the vendor to execute a deed for the property; and may provide that in default of payment of the purchase money, the land shall be sold to discharge the claim. 2 The court will not give all the benefit of a contract to one party, without securing the consideration stipulated for by the other party. 3 Thus a decree founded upon an agreement to convey land in consideration of a release of a judgment should pro- vide for the transfer of the property as well as the execution of a release. 4 When specific performance cannot be granted, the decree may dismiss the bill without prejudice, so that the plaintiff may pursue any remedy he may have at law. 5 in general necessary. See also Cheney v. Libby, 134 U. S. 68, 83-84; Harris v. Morris, 4 Md. Ch. 529, 534. In Etchison v. Dorsey, 1 Bl. 535, 536-537, a decree was passed directing the defendant to convey certain land on payment by the plaintiff of a certain sum, but did not order the plaintiff to pay the said sum, as might have been done. Upon application of the defend- ant, after the expiration of the time in which the decree could be al- tered, for an order to compel payment by the plaintiff, it was held that the defendant could only obtain relief by a bill in the nature of a cross bill. The decree may be enforced by attachment, or by injunction to deliver possession; Garretson v. Cole, 1 H. & J. 370, 386-387. Compare ante, sec. 528. In Dorsey v. Campbell, 1 Bl. 356, 363, a fieri facias was issued to enforce payment. 2 See Carey's Forms, No. 829, page 679. See the form of decree in Gump v. Sibley, 79 Md. 165, 166. Code, art. 16, sec. 80, provides that "in all cases where the court shall decree that a deed of any kind shall be executed, a trustee to exe- cute such deed may be appointed, and until such trustee shall ex- cute a deed, the decree itself, if passed in the county where the land lies, shall have the same effect that the deed would if executed." Simi- lar provisions are made with respect to decrees directing leases; code, art. 16, sees. 93, 94. Compare Garretson v. Cole, 1 H. & J. 370, 386. A trustee may be appointed where there is a decree for the specific performance of a contract to devise; see ante, sec. 666, and note 1. s Simmons v. Hill, 4 H. & McH. 252, 257. 4 Gurley v. Hiteshue, 5 G. 217, 225. 5 As in Beall v. Prather, 1 H. & J. 210, 223-224; see also Schwanebeck- v. Smith, 77 Md. 314, 321; and compare ante, sec. 267; act of 1896, ch. 229, stated ante, sec. 268. 785 Specific performance. §678-679 §678. Miscellaneous. — Special rules govern applica- tions for the specific performance of covenants for the renewal of ninety-nine year leases, owing to the peculiar nature and purposes of such instruments. 1 Upon the principle that where equitable jurisdiction has once attached in a case, it will be maintained for the final adjudication of all rights involved, 2 the court, after decreeing the specific execution of an entry in an insurance policy, has administered full relief by also de- creeing the payment of the loss. 3 Requisites of an enforceable contract. §679. In general. — With respect to the essential ingre- dients of a contract sought to be specifically enforced it is said that no rule is better established than that every agreement to merit the interposition of a court of equity in its favor, must 'See Banks v. Haskie, 45 Md. 207, 224; Myers v.' Silljacks, 58 Md. 3!9. 33 I_ 333; Worthington v. Lee, 61 Md. 530, 538; see also ante, sec. 622, note 4. In Pfeaff v. Jones, 50 Md. 263, 270.it is said that courts of chancery had the power to compel the specific execution of contracts defectively executed, prior to the act of 1785, in virtue of their general equitable jurisdiction, and that power and jurisdiction still remain unimpaired; citing Wicks v. Chew, 4 H. & J. 543, 547, in which it was said that the acts of assembly enabled a party acquiring equitable rights, under a deed not operative in law for want of recording, to perfect those rights, by applying to the chancellor to order the original instrument to be recorded, and thus to give it the effect which by law it would have had if recorded in due time, instead of going into chan- cery to enforce a specific performance, or compel a conveyance. Com- pare ante, sec. 667, and note 6. 2 Phelps, Jur. Eq. sec. 179, page 260. 3 Phoenix Ins. Co. v. Ryland, 69 Md. 437, 449; compare Owings v. Baldwin, 8 G. 337, 356-357. In Beard v. Linthicum, 1 Md. Ch. 345, 348, it was said that the court, if it acts at all, "must act upon the entire contract as laid in the bill. It must be executed in all its parts specifically and rigorously" ; similarly in Waters v. Howard, 1 Md. Ch. 112, 117; Ridgeway v. To- ram, 2 Md. Ch. 303, 311; compare O'Brien v. Pentz, 48 Md. 562, 577- 578; Fry, Spec. Perf. sec. 821. But where the question is only as to the extent of the relief, the plaintiff may be permitted to recover only part of what he claims; Drury v. Conner, 6H. & J. 288, 293, citing Graham v. Yates, 6 H. & J. 229; compare Small v. Owings, 1 Md. Ch. 363, 367. 50 §679-680 Specific performance. 786 be fair, just, reasonable, bona fide, certain in all its parts, mu- tual, useful, made upon a good or valuable consideration, not merely voluntary; consistent with the general policy of a well regulated society, and free from fraud, circumvention, or sur- prise, or at least such an agreement must, in its effect, ulti- mately tend to produce a just end. If any of these ingredients are wanting, or if that object be not in view, courts of equity will not decree a specific performance. 1 It is also said that the contract must be made under circumstances commending it to the favorable consideration of the court; 2 and must be such that the performance of it may be conscientiously required. 3 It must also be capable of being specifically performed. 4 t! §680. Contract must be in force. — There must, of course, be a concluded contract, not wanting in any of the ele- ments necessary to such an instrument 1 . Thus where an offer was made and accepted, as a mere basis for further negotia- tions, 2 and where it was doubtful whether the language used was expressive of an agreement, 3 there could be no decree. If the contract has been rescinded, there can be no decree for its specific performance.* If the contract has been merged in 1 GrifKth v. Frederick Co. Bank, 7 G. & J. 424, 439; see also Stod- dert v. Tuck, 5 Md.- 18, 35; Gelston v. Sigmund, 27 Md. 334, 343; Smith v. Crandall, 20 Md. 482, 500; Schwanebeck v. Smith, 77 Md. 314, 320; Kraft v. Egan, 78 Md. 36, 40; Hopkins v. Roberts, 54 Md. 312, 317; Reese v. Reese, 41 Md. 554, 559. In Mundorff v. Kilbourn, 4 Md. 459, 464, it was said that "all agreements to be executed in equity must be certain and defined; equal and fair; and proved as the law requires; and that it was enough to doubt upon any one of these points to refuse relief." Quoted in Wilks v. Burns, 60 Md. 64, 68. 2 Kraft v. Egan, 78 Md. 36, 40; O'Brien v. Pentz, 48 Md. 562, 577; compare the facts in Wadsworth v. Manning, 4 Md. 59, 69-70. 3 Carberry v. Tannehill, 1 H. & J. 224, per Hanson, Ch. 4 Smoot v. Rea, 19 Md. 398, 405; Shriver v. Seiss, 49 Md. 384, 388; see also Van Bibber v. Reese, 71 Md. 608, 619. [§680.] iFry, Spec. Perf. sec. 277; Pomeroy, Spec. Perf. sec. 58. 2 Canton Co. v. Northern Central R. Co., 21 Md. 383, 396-397. 3 Ogden v. Ogden, 1 Bl. 284, 289; as in Prutzman v. Pitesell, 3 H. & J. 77. 81. *Penn v. McCullough, 76 Md. 229, 232, 234; compare Derrett v. Bowman, 61 Md. 526, 528-529, in which it was argued that the pur- 787 Specific performance. §680-681 a subsequent deed containing inconsistent provisions, the ■original contract becomes void, and no action for specific per- formance can be maintained upon it. 5 §681. Contract must be fair.— The contract must be fair, just and reasonable in all respects. 1 A decree for specific performance will not be made where the contract sought to be enforced is hard or unreasonable in itself. 2 The court will not be active in specifically enforcing claims not under the actual circumstances just between the parties. 3 In such cases the plaintiff is left to his remedy at law. 4 The fairness or hardship chaser had voluntarily surrendered the property. See also Fry, Spec. Perf. sec. 1020. In Wilks v. Burns, 60 Md. 64, 66, it was said that the court would ascertain "whether the end and object which induced the parties to enter into that contract have not yet been attained, or, whether, having been accomplished, the obligations imposed by its stipulations have ceased to be operative and cannot therefore be specifically enforced." 5 West Boundary Co. v. Bayless, 80 Md. 495, 5°7-5°9; the rule may be otherwise if it appears that it was the intention that the deed should •be only a part of the execution of the contract; page 507. iGriffith v. Fredk. Co. Bank, 6 G. & J. 424, 439; Duvall v. Myers, 2 Md. Ch. 401, 403; Waters v. Howard, 1 Md. Ch. 112, 116-117; Tyson v. Watts, 1 Md. Ch. 13; Geiger v. Green, 4 G. 472, 475; Smoot v. Rea, 19 Md. 398, 405; Kraft v. Egan, 78 Md. 36, 40; Ellicott v. White, 43 Md. 145, 150; O'Brien v. Pentz, 48 Md. 562, 577; Shriver v. Seiss, 49 Md. 384, 388. See the instances in Gurley v. Hiteshue, 5 G. 217, 224; Perkins . v. Wright; 3 H. & McH. 324, 326; Carberry v. Tannehill, 1 H. & J. 224; Pope Manfg. Co. v. Gormully, 144 U. S. 224, 236-237; Dalzell v. Dueber Watch Co., 149 IX S. 315, 323. 2 Perkins v. Wright, 3 H. & McH. 324, 326; "or where from a ma- terial change of circumstances since the contract, the performance would be attended with peculiar hardship to the defendant." 3 Gough v. Crane, 3 Md. Ch. 119, 134. *Perkins v. Wright, 3 H. & McH. 324, 326; Waters v. Howard, 1 Md. Ch. 112, 116-117; Gough v. Crane, 3 Md. Ch. 119, 134. In Fry, Spec. Perf. sees. 387-388, it is said in substance that there are many instances in which, though there is nothing that actually amounts to fraud, there is nevertheless a want of that equality and fairness in the contract which are essential to its specific performance. In cases of fraud, the court may rescind a contract; but there are many cases in which the court in its exercise of the jurisdiction in specific performance will stand still and not interfere. The unfairness may §681-682 Specific performance. 788- of a contract, like all its other qualities, must be judged of at the time it was entered into, and not by subsequent events. If it was then fair in all its parts, it is immaterial that by force of subsequent circumstances it has become less beneficial to one party, unless such change is in some way the fault of the party seeking its specific execution. 5 A fluctuation in the value of the property after the date of the contract would not prevent a decree for specific performance. 6 §682. Contract must be bona £de. — The contract must have no circumstances of suspicion as to its bona fides. 1 A misrepresentation, whether fraudulent or innocent, having relation to the contract, made by one of the parties to the other of them, is a ground for refusing specific performance. 2 Actual fraud presents to the party defrauded a complete defence to an action of specific performance. 3 be either in the contract itself, or in matters extrinsic and circum- stances under which it was made. As to cases involving hardship, although the plaintiff may be free from the least impropriety of con- duct, see sees. 417-437; compare Pomeroy, Spec. Perf. sees. 179-191. 5 Cochran v. Pascault, 54 Md. 1, 18; Brewer v. Herbert, 30 Md. 301, 312; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 473; Rutland Marble Co. v. Ripley, 77 U. S. 339, 357; Pomeroy, Spec. Perf. sees. 177-178. e Cochran v. Pascault, 54 Md. 1, 17-18; see the quotations here at length. iO'Brien v. Pentz, 48 Md,. 562, 577; Kraft v. Egan, 78 Md. 36, 40. In McShane v. Hazlehurst, 50 Md. 107, 119, it is said that where a party has been induced to enter into a contract of sale by the fraudu- lent misrepresentations of the other party, or his agent, of material facts upon which he relied and had a right to rely, a court of equity will grant him relief by refusing to decree a specific performance or by annulling the contract. 2 Fry, Spec. Perf. sec. 650; the subject is elaborately considered here and in Pomeroy, Spec. Perf. sees. 209-228. 3 Fry, Spec. Perf. sec. 703; "it is conceived that in no case could a party guilty of fraud in the performance of a contract ask the court to interfere for the purpose of enforcing its further performance"; sec. 704. See also Pomeroy, Spec. Perf. sees. 267-279. In Gurley v. Hiteshue, 5 G. 217, 223-224, it is said that "a court of equity, professing, as it does, to lend its aid exclusively to cases in which a claim can be conscientiously enforced, will never coerce the specific performance of a contract for a party who has not acted fairly, openly and without suppression of any important fact, or the expres- 789 Specific performance. §683 §683. Contract must be certain. — That the contract sought to be specifically enforced must be definite and certain in its terms, and free from all ambiguity, has been established by many cases. 1 It is indeed said that the contract must be free from all shade or color of ambiguity. 2 If uncertain or ambiguous, a specific performance will not be decreed. 3 Rea- sonable certainty in the description of property, is all that the law requires; thus a decree will not be refused merely because the agreement does not state in what city, county or State the land agreed to be conveyed lies, provided the description of the premises is not thereby rendered altogether indefinite. 4 An agreement for the assignment of a particular house, or the erection and purchase of a house, must be sufficiently definite to guide the court in the direction to be given for the specific performance, or at any rate that it may be made certain and definite upon proper inquiry. 5 sion of any falsehood. Whether with a fraudulent design, or inno- cently, yet if a false impression has been conveyed and made the basis of the contract, this extraordinary jurisdiction of the court will not be exercised by coercing a specific performance." See the instance in Clary v. Grimes, 12 G. & J. 31, 35-36; compare Berry v. Cox, 9 G. 466, 471-472. 1 Geiger v. Green, 4 G. 472, 476; Waters v. Howard, 8 G. 262, 277; Tyson v. Watts, 1 Md. Ch. 13, 15; Mundorff v. Kilbourn, 4 Md. 459, 464; Stoddert v. Tuck, 5 Md. 18, 34-35; Carr v. Hobbs, 11 Md. 285, 294; Shriver v. Seiss, 49 Md. 384, 388; O'Brien v. Pentz, 48 Md. 562, 577; At- lantic Coal Co. v. Maryland Coal Co., 62 Md. 135, 142; compare Young v. Frost, 5 G. 287, 312-313; Simmons v. Hill, 4 H. & McH. 252, 258; Canton Co. v. Northern Central R. Co., 21 Md. 383, 396-397; Van Bibber v. Reese, 71 Md. 608, 619; Fry, Spec. Perf. sees. 380-386. 2 Wilks v. Burns, 60 Md. 64, 68. 3 Waters v. Howard, 8 G. 262, 277; "for the court may enforce pre- cisely what the parties never did intend or contemplate." See also Peabody Heights Co. v. Willson, 82 Md. 186, 203. 4 Kraft v. Egan, 76 Md. 243, 252-253; in this case an objection that the contract for the sale of the property did not state the' city or State in which it was situated, was not sustained. See the other objections and the instances stated by the court. Compare Steffey v. Steffey, 19 Md. 5, 12; Huntt v. Gist, 2 H. & J. 498, 505, (in which a bond was given to convey 120 acres out of a tract of 275 acres, without locating or identi- fying the 120 acres) ; Dorsey v. Wayman, 6 G. 59, 66-67; Taney v. Bach- tell, 9 G. 205, 210. See also Fry, Spec. Perf. sees. 342-346; Pomeroy, Spec. Perf. sees. 152-153; Preston v. Preston, 95 U. S. 200, 201-202. 6 Busey v. McCurley, 61 Md. 436, 446; West Boundary Co. v. Bay- less, 80 Md. 495, 505- §684 Specific performance. 790 §684. Instances of uncertainty.— Specific perform- ance between landlord and tenant has been refused, because of the want of certainty, in cases where the contract for a lease of land in Baltimore city was silent as to the term for which the lease was to be made; 1 where a contract to lease did not fix the rent to be paid; 2 where the agreement was that the tenant should give the landlord the same rent the latter might be able to obtain from other parties, as that could not be ascertained. 8 A contract for the sale of land provided for the payment of "the market price for said ground as it shall appear on the date of said sale;" the court has no means to ascertain the market price with any degree of certainty.* Where the contract did not fix the price of certain land, but left it to arbitrators, and the price was to be paid within a certain time but had not been de- termined at the time of the suit, the contract was unenforcea- ble; 5 where an agreement to give a mortgage did not describe any property designed to be mortgaged; 6 but in such case an objection that no particular time was limited for the payment of the mortgage was not sustained. 7 iMyers v. Forbes, 24 Md. 598, 611; see upon this point, also, Popp- lein v. Foley, 61 Md. 381, 385-386; compare Allen v. Burke, 2 Md. Cfr. 534. 538-539- In Spear v. Orendorf, 26 Md. 37, 42-43, the contract alleged by a. tenant was the option of extending the lease "two or three years"; this- was not held to be uncertain. 2 Howard v. Carpenter, 11 Md. 259, 278; stated in Myers v. Forbes, 24. Md. 598, 611. 3 Gelston v. Sigmund, 27 Md. 334, 341, 343; stated in Schwanebeck v. Smith, 77 Md. 314, 320. *Schwanebeck v. Smith, 77 Md. 314, 319-320; see also the case stated on page 320. In Kraft v. Egan, 76 Md. 243, 251, the contract named the price,, and acknowledged the receipt by the vendors of one hundred dollars, "and thirty-nine or forty-nine hundred dollars more, making say four thousand dollars, or five thousand dollars, shall be paid within thirty- days." An objection that the sum was uncertain was made, but was- not considered by the court. 5 Griffith v. Fredk. Co. Bank, 6 G. & J. 424, 440-441; see Fry, Spec. Perf. sees. 3S3-367;'Pomeroy, Spec. Perf. sees. 148-151; Town of Bristol v. Bristol Water Works, 19 R. I. — . •Sanderson v. Stockdale, 11 Md. 563, 571-572. 'Triebert v. Burgess, 11 Md. 452, 463-464; because a reasonable time. 791 Specific performance. §685 §685. Contract must be mutual.— Unless the essen- tial ingredient of mutuality is found in a contract, a court of equity will not compel its specific performance. 1 Wherever, whether from personal incapacity to contraot or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapa- ble of enforcing it against the other. 2 Mutuality of a contract means an obligation on each party to do, or permit to be done, something in consideration of the act or promise of the other. 3 The contract must be mutually binding on each. 4 Both par- ties must have a right to compel a specific performance. 5 In cases of inequality of obligation it is proper to refuse a specific performance and leave the plaintiff to seek his compensation in the discretion of the court, would be allowed. Compare Roberge v. Winne, 144 N. Y. 709, 713-714. In Jones v. Parker, 163 Mass. 564, 566-567, a contract ''reasonably to heat and light" certain demised premises was specifically enforced. 1 Geiger v. Green, 4 G. 472, 476-477; Stansbury v. Fringer, 11 G. & J. 149, 152; Tyson v. Watts, I Md. Ch. 13, 15-16; Beard v. Linthicum, 1 Md. Ch. 345, 350; Duvall v. Myers, 2 Md. Ch. 401, 405; O'Brien v. Pentz, 48 Md. 562, 577; Atlantic Coal Co. v. Maryland Coal Co., 62 Md. 135, 142; Kraft v. Egan, 78 Md. 36, 40. 2 Fry, Spec. Perf. sec. 460; an infant cannot sue, for he cannot be sued, for a specific performance; sec. 461. See Pomeroy, Spec. Perf. sees. 163-164; Rutland Marble Co. v. Ripley, 77 U. S/339, 359. In Pomeroy, Spec. Perf. sees. 167-174, are considered "the limi- tations and exceptions, of great importance, which very much narrow" the application of the rule. In Tyson v. Watts, 1 Md. Ch. 13, 18, the bill was by an assignee of one of the original parties to the agreement; see the observation of the chancellor with respect to this as affecting the mutuality of the contract at the time of suit. As to whether the contract should necessarily be mutual at the time it was entered into, or whether it is sufficient if it be mutual at the time of the decree, see Fry, Spec. Perf. sec. 463. 3 Spear v. Orendorf, 26 Md. 37, 43; Canton Co. v. B. & O. R. Co., 79 Md. 424, 429. 4 Canton Co. v. B. & O. R. Co., 79 Md. 424, 429; Billingslea v. Ward, 33 Md. 48, 53; Geiger v. Green, 4 G. 472, 476; see the instances in Hopkins v. Roberts, 54 Md. 312, 317, and Coleman v. Applegarth, 68 Md. 2r, 27. 'Geiger v. Green, 4 G. 472, 476; Tyson v. Watts, 1 Md. Ch. 13, 15-16; Duvall v. Myers, 2 Md. Ch. 401, 404. §685 Specific performance. 792 at law. 6 Where the contract is lacking in mutuality, the fact that a payment has been made by the party claiming its specific performance cannot vary the construction of the instrument, or supply essentials in which it may be deficient, although such fact is entitled to weight in the final disposition of the case. 7 6 Tyson v. Watts, I Md. Ch. 13, 17. In Gelston v. Sigmund, 27 Md. 334, 344, and Duvall v. Myers, 2 Md. Ch. 401, 405, it was said that it "would not be equity, that a party not bound by the agreement itself should be permitted at his option, and when he finds it to his advantage to do so, to com- pel the other party to perform, when, if the advantage was the other way, he could not himself be coerced to performance on his part." See also Geiger v. Green, 4 G. 472, 476. In Crane v. Gough, 4 Md. 316, 331, it is said that "in cases where a party seeks the specific performance of a contract which imposes all its obligations and confers none of its benefits on one of the parties, a court of equity may very properly refuse to decree its execution. But in cases where the party charged admits the contract and professes a willingness to perform it, courts of equity, if its terms be not immoral or opposed to the policy of the law, never interfere in his behalf." As to the mutuality of a contract signed by only one of the par- ties to it, see Duvall v. Myers, 2 Md. Ch. 401, 406; Rider v. Gray, 10 Md. 282, 287, per the lower court; Fry, Spec. Perf. sees. 470-472. 7 Rider v. Gray, 10 Md. 282, 298. In Duvall v. Myers, 2 Md. Ch. 401, 405, it is said that a party not bound by the agreement itself is not entitled to enforce performance against the other contracting party, by expressing his willingness in his bill to perform his part of the agreement. His right to the aid of the court does not depend upon his subsequent offer to perform the contract upon his part, but upon its originally obligatory character. Quoted in King v. Warfield, 67 Md. 246, 249-250. In Geiger v. Green, 4 G. 472, O. granted to the plaintiff "the privilege of digging and moving the ore on that part of my place * * at twenty-five cents per ton for the privilege of ground; leave also to build a house on said land, the workmanship to cost $100, the materials to be got on my land" at the plaintiff's expense. This agreement was held to be lacking in mutuality; it granted a mere privilege to be exercised or not at the plaintiff's pleasure, imposing no corresponding obligations. The plaintiff might use the mine or might refuse to do so, and O. had no power to enforce an observance of the contract, which thus bound one party while it left the other unfettered. There were no mutual or reciprocal engagements. In Spear v. Orendorf, 26 Md. 37, 44, it was said that the paper here "was a mere license, without any considera- tion paid or promised to be paid;' - see also the remarks upon the case in Tyson v. Watts, 1 Md. Ch. 13, 17-18; Tyson v. Watts, 7 G. 124, 155- 157. In Tyson v. Watts, 1 Md. Ch. 13, the object of the defendant in 793 Specific performance. §686 §686. Mutuality in conditional contracts.— 'Mu- tuality does not, however, imply that every stipulation is abso- lute and unqualified. 1 The contract may be a conditional one; and if the condition is performed, or if its performance is waived, the contract may become absolute, and then rests upon the same footing for all purposes as if it had been originally made positively and without reference to any contingency. Thus, the contract may be conditional upon a vendor being able to deliver a good title. When the agreement shows that the vendor has not, at the time, a clear and unencumbered title, but is to acquire.it, and then convey, if he is able to give a clear title at the time when by the equities of the particular case he is required to execute the conveyance in order to entitle himself to the consideration, there will be no obstacle to a spe- cific enforcement of the vendor. 2 The contract may be of such a nature as to give to the one party a right to the performance which it does not give to the other; as for instance, where a lessor covenants to renew upon the request of his lessee; or where the contract is in the nature of an undertaking. But making the contract was to have the minerals on his farm worked as well as explored, and by the contract he gave full power to P. to make «xploration and to work the mines; but the only engagement by P. was limited to exploration, and he was not bound to work the mines. The contract was held deficient in reciprocity of obligation. On ap- peal, in Tyson v. Watts, 7 G. 124, 156-157, the decree of the chancellor was affirmed, and it was said that if P. had refused to work the mines it would be impossible without the interpolation of new conditions and stipulations to coerce its execution. See the somewhat similar con- tract, held unenforceable, in Rider v. Gray, 10 Md. 282. Certain contracts were held wanting in mutuality in Artz v. Grove, 21 Md. 456, 473; Billingslea v. Ward, 33 Md. 48, 53; Duvall v. Myers, 2 Md. Ch. 401, 406; Canton Co. v. Northern Central R. Co., 21 Md. 383, 397-399- 2 Spear v. Orendorf, 26 Md. 37, 43; Canton Co. v. B. & O. R. Co., 79 Md. 424, 429. 2 Canton Co. v. B. & O. R. Co., 79 Md. 424, 429-431; see the instances stated here; it was further held that the railroad company having en- ' tered upon the property, and taken possession of it, and having com- mitted such acts of ownership as could be referable only to an entry and possession under the contract, such entry and possession consti- tuted a waiver of the condition as to the ability of the Canton company to convey a good title. See also post, sec. 696. §686-687 Specific performance. 794 these are merely cases of conditional contracts; and when the condition has been performed, as for instance, in the case above stated, by a request to renew, the contract becomes absolute and mutual, and capable of enforcement alike by either party. 8 §687. Contract must be for valuable considera- tion. — In order to justify a decree for specific performance, it must appear that the contract is founded upon a valuable con- sideration. 1 Chancery will not decree a specific performance of a mere voluntary covenant or agreement without considera- tion. 2 Marriage is regarded as a valuable consideration in the 3 Fry, Spec. Perf. sec. 465; other apparent exceptions are noted in cases where there is a waiver, sec. 468; where in cases under the statute of frauds a party who has not signed the contract may enforce it against one who has, sec. 470; where the vendor has only a partial in- terest, sec. 473; see Pomeroy, Spec. Perf. sec. 169. In Spear v. Orendorf, 26 Md. 37, a tenant sought specific per- formance of a parol agreement to lease certain property for "one year with the privilege of extending the same two or three years." The court said (pages 43-44). that "the option of extending the term two or three years was a privilege to be exercised by the tenant during the term, not to be.fixed by him as a part of the lease. Such privileges are not uncommon, and though dependent on the will of one of the par- ties, they do not impair the mutuality of the contract. * * * If the landlord had executed the lease, the tenant would have been bound to- pay the rent; on the other hand, if the tenant paid the rent on the foot of the agreement, the landlord was bound to execute the lease." In Gelston v. Sigmund, 27 Md. 334, 341, 343-344, a tenant sought the specific performance of an agreement with the landlord "to let hinu retain the possession of th'e property from" a certain date and upon cer- tain terms. This was wanting in mutuality, there being no obligation- on the tenant to continue in possession of the premises; the contract left him the option to accept or refuse the lease. The agreement was therefore wanting in mutuality and could not be enforced at the options of a party who was not himself bound. iGeiger v. Green, 4 G. 472, 475; Tyson v. Watts, 1 Md. Ch. 13, 15; O'Brien v. Pentz, 48 Md. 562, S77; Smoot v. Rea, 19 Md. 398, 405; Kraft v. Egan, 78 'Md. 36, 40. 2 Hannan v. Towers, 3 H. & J. 147, 149; Black v. Cord, 2 H. & G. 100, 103; Tiernan v. Poor, 1 G. & J. 216, 228; Shepherd v. Shepherd, 1 Md. Ch. 244, 246; Haines v. Haines, 4 Md. Ch. 133, 136; Snyder'v. Jones, 38 Md. 542, 552; compare Tubman v. Anderson, 4 H. & McH 357, 359- In Dugan v. Gittings, 3 G. 138, 156, it was said that "a mere ver- 795 Specific performance. §687-688 formation of a contract, and is considered as equivalent to the payment of the purchase money in a pecuniary contract. 3 If there be a contract, express 4 or implied, 5 apparently, that a • person is to obtain land from another, and the former expends money in improvements on the faith of the contract, this act constitutes a valuable consideration on which to ground a claim for specific performance, 6 or at least to sustain a decree for compensation. 7 §688. Inadequacy of price. — Inadequacy of price alone, unattended by fraud or circumstances of suspicion, is- not sufficient to prevent specific performance. On the con- trary, the parties have a right to make their own contract, and mere inadequacy is no ground of objection where the contract is fair and voluntary. A sale may be made under a pressing necessity on the part of the vendor, but in the absence of fraud, equity could interpose no relief. 1 The court does not affect to- weigh the actual value, nor to insist upon the equivalent in con- tracts, where each party has equal competency. Improvidence or inadequacy of consideration do not influence the court against enforcing a specific performance where no undue ad- vantage is taken. 2 In an agreement made by a parent with a bal, voluntary, executory agreement, although founded on the meri- torious consideration of love and affection, cannot be enforced by a court of equity." See also Browne v. Browne, I H. & J. 430, 438-439. 3 Dugan v. Gittings, 3 G. 138, 156-157; Waters v. Howard, 1 Md. Ch, 112, 116; Stoddert v. Tuck, 4 Md. Ch. 475, 483; Waters v. Howard, 8 G. 262, 277; Crane v. Gough, 4 Md. 316, 333-334. Compare Tuck v. Bowie, 1 Md. 87, 96-97; Michael v. Morey, 26 Md. 239, 263-264. 4 As in Shepherd v. Bevin, 9 G. 32, 37-38. 5 As in Haines v. Haines, 6 Md. 435, 443, affirming Haines v. Haines, 4 Md. Ch. 133, 136; compare Brown v. Sutton, 129 U. S. 238, 243. 6 Shepherd v. Bevin, 9 G. 32, 42; Haines v. Haines, 4 Md. Ch. 133. 136; compare Hall v. Hall, 1 G. 383, 392-393; Hannan v. Towers, 3 H. & J. 147. 152. 7 Duckett v. Duckett, 71 Md. 357, 360. a Shepherd v. Bevin, 9 G. 32, 39. See in general Fry, Spec. Perf. sees. 438-455; Pomeroy, Spec. Perf. sees. 192-196. 2 Young v. Frost, 5 G. 287, 313; Shepherd v. Bevin, 9 G. 32, 39; Frank- lin Tel. Co. v. Harrison, 145 U. S. 459, 473- In Hannan v. Towers, 3 H. & J. 147, 151, it is said that any con- sideration, however small, will be sufficient to uphold an agreement; §688-690 Specific performance. . 796 child, a slight consideration will be sufficient to support it; but the consideration, however slight, must be performed. 3 Any- supposed inadequacy of price, in the absence of fraud, would have little influence in the interpretation of such a contract.* §689. Contract must be legal.— The illegality of a con- tract, or of any part thereof, is of course a bar to its specific performance. What constitutes illegality is a subject regu- lated in part by statute law, in part by considerations of public policy and in part even by the rules which the courts have adopted for the general protection of all suitors. 1 Contracts relating to land. §690. Objections to the title. — When a decree of spe- cific performance of a contract for the sale of land is sought against a vendee who declines to complete the purchase, be- cause of an alleged defect in the title, the question arises as to the character of title he may be required to accept. An ac- tion of specific performance is the usual method of testing the validity of titles objected to by purchasers. The law has wisely not required that titles to real estate shall be absolutely perfect and free from every possible doubt. 1 Ordinarily a chancery court will not compel a purchaser to pay the pur- quoted in Stewart v. Redditt,, 3 Md. 67, 80; Drury v. Briscoe, 42 Md. 154, 163. See also Robinson v. Robinson, 4 Md.Ch. 176, 188; reversed in Wilson v. Farquharson, 5 Md. 134, 138-139. 3 Simmons v. Hill, 4 H. & McH. 252, 258; Shepherd v. Bevin, 9 G. 32, 39-40; see Pomeroy, Spec. Perf. sec. 197, and note 2. •'Haines v. Haines, 6 Md. 435, 440. 1 Fry, Spec. Perf. sees. 477, 479; Pomeroy, Spec. Perf. sees. 280-287. See Lynn v. Mt. Savage Iron Co., 34 Md. 603, 632, in which it was questioned whether the court would specifically enforce a cove- nant tending to prevent competition in trade. The court refused to enforce speculative contracts in fluctuating continental currency; Perkins v. Wright, 3 H. & McH. 324, 327; Chapline v. Scott, 4 H. & McH. 91, 92-93; Lawrence v. Dorsey, 4 H. & McH. 205, 209; Hopkins v. Stump, 2 H. ,& J. 301, 304. See also Crane v. Gough, 4 Md. 316, 331; Bodman v. Murphy, 35 Md. 154, 162; Pope Mnfg. Co. v. Gormully, 144 U. S. 224, 233-236. [§690.] *Bay v. Posner, 78 Md. 42, 46. 797 Specific performance. §690-691 chase money and accept a defective title. 2 When the contract is general, the vendee is not bound to accept anything short of an unincumbered legal estate in fee. 3 §691. Incumbrances on the property.— Where the vendee is entitled to a conveyance of an estate free of all in- cumbrances, he cannot be required to accept the title until the incumbrances are removed; but this is a matter of his own election. 1 Thus a subsisting unpaid mortgage must be dis- charged before the purchaser can be required to pay the pur- chase money. 2 He is not bound to take an estate fettered with incumbrances, by which he may be subjected to litigation to 2 Jones v. Belt, 2 G. 106, 123. 3 Owings v. Baldwin, 8 G. 337, 350-351; if the vendor has no more than an equitable title, the contract is not binding upon the purchaser at law, nor in equity if the vendor cannot procure the legal title. In Gill v. Wells, 59 Md. 492, 501, the court cites Waterman on Spec. Perf. sec. 410, which is to the effect that "the evidences of his title being matters peculiarly within the knowledge of the vendor, when he contracts to convey a clear title, he must aver and prove, in a suit brought by him against the vendee, * * that he is able and willing to give such a title as would be satisfactory to persons of or- dinary prudence." In Cochran v. Pascault, 54 Md. 1, 16, a quotation is made to the effect that if the title prove bad and the defect can be cured by the vendor, the purchaser may file a bill in equity for a specific performance of the covenant for further assurance. And a vendor who has sold a bad title will under a covenant for further assurances be compellable to convey any title which he may have acquired since the conveyance, although he actually purchased such title for a valuable consideration. In Jones v. Belt, 2 G. 106, 123, it was said: "What interest the vendor has in setting up a defect in his own title, as a bar to a con- veyance called for by the vendee, who is willing to accept such de- fective title, it is difficult to conceive.'' 1 Bryant v. Wilson, 71 Md. 440, 443, citing Buchanan v. Lorman, 3 G. 51, 77, Owings v. Baldwin ,8 G. 337, 350, and Dorsey v. Hobbs, 10 Md. 412, 417; see the first mentioned case as to the insertion of a covenant against incumbrances in the deed; compare Showman v. Miller, 6 Md. 479, 487. See also Linthicum v. Thomas, 59 Md. 574, 577, 582; and compare ante, sec. 502. 2 Marburg v. Cole, 49 Md. 402, 414. See Posner v. Bay, 79 Md. 30, 34-35, as to the payment of incumbrances out of the purchase money; compare Seldner v. McCreery, 75 Md. 287, 296-297. In Brewer v. Herbert, 30 Md. 301, 314, it was said that cases of §691-692 Specific performance. 798 procure his title; 3 nor to accept anything short of an unincum- bered legal estate in fee.* If the property is subject to cove- nants and conditions restricting the character of its use, the contract will not be enforced. 5 §692. Reasonable doubt respecting the title.— The general rule is that the purchaser will not be compelled to take a title which is not free from reasonable doubt, and which might in reasonable probability expose him to the hazards of litigation. 1 Whatever may be the private opinion of the court as to the validity of the title, yet if there be a reasonable doubt either as to matter of law or matter of fact involved in it, the purchaser will not be forced to take it. 2 No general rule can be laid down with respect to what doubts will be sufficient to prevent the granting of a decree. Every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from anxiety, lest annoy- ing, if not successful, suits, be brought against him, and prob- high authority are to be found in which a pecuniary charge, against which adequate security has been given, has been held not to con- stitute a defect in title. 3 Buchanan v. Lorman, 3 G. 31, 77. *Gill v. Wells, 59 Md. 492, 493-494. °Newbold v. Peabody Heights Co., 70 Md. 493, 499; on page 501 it is said that a restrictive covenant may be enforced, and relief fur- nished ''either by way of injunction, or upon application for specific performance, according to the circumstances of the case calling for the exercise of equitable jurisdiction." See also Peabody Heights Co. v. Willson, 82 Md. 186, 204, 208; Halle v. Newbold, 69 Md. 265, 269. 1 Emmert v. Stouffer, 64 Md. 543, 554; Second Univ. Society v. Du- gan, 65 Md. 460, 473; Lurman v. Hubner, 75 Md. 268, 272; Trustees v. Rother, 83 Md. 289, 295. See in general Pomeroy, Spec. Perf. sees. 198-208. In Gill v. Wells, 39 Md. 492, 494, it is said that the rule that the title must be free from reasonable doubt is comparatively modern, for it was at one time held to be the duty of the courts in all cases of specific • performance to decide either for or against the validity of the title and compel the purchaser to take it as good or dismiss the bill on the ground that it was bad; see the further remarks here. Compare Levy . v. Iroquois Co., 80 Md. 300, 304; Trustees v. Rother, 83 Md. 289, 296; Fry, Spec. Perf. sec. 881. 2 Levy v. Iroquois Co., 80 Md. 300, 304. 799 Specific performance. §692-694 ably take from him or his representatives land upon which money was invested. He should have a title which shall enable him not only to hold his land, but to hold it in peace; and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. 3 The intention of a contract of sale is to get a title, not a law-suit. 4 §693. The same subject continued.— But a threat, or even the possibility of a contest, will not be sufficient. The doubt must be considerable and rational, such as would and ought to induce a prudent man to pause and hesitate; not based on captious, frivolous and astute niceties, but suoh as to produce bona fide hesitation in the mind of the chancellor. 1 There must be ground for reasonably anticipating that if the title be forced upon him, he will in consequence be involved in litigation. 2 If the objection is based upon matter of fact, some reasonable ground of evidence must be shown in support of the objection. 3 §694. Adverse interests of persons not parties.— The decree being a judgment in personam, and not in rem, "binds only those who are parties to the suit and those claiming 3 Gill v. Wells, 59 Md. 492, 495; see also Levy v. Iroquois Co., 80 Md. .300, 304; Herzberg v. Warfield, 76 Md. 446, 449. 4 GurIey v. Hiteshue, 5 G. 217, 224-225. In Williams v. Mayor, &c, 6 H. & J. 529, 534, the chancellor said that ''no person will be compelled to accept a conveyance, and forced to pay a consideration, when the title is clearly not in the person con- tracting to sell or lease, or when well founded doubts are entertained of its validity." iGill v. Wells, 59 Md. 492, 495; Bay v. Posner, 78 Md. 42, 46-47; Levy v. Iroquois Co., 80 Md. 300, 305; Herzberg v. Warfield, 76 Md. 446, 449. See in general Fry, Spec. Perf. sees. 890-891. 2 Herzbe'rg v. Warfield, 76 Md. 446, 449. In Owings v. Baldwin, 8 G. 337, 355, it was said that the mere commencement of a suit for the recovery of the whole or a part of the land sold, after the filing of a bill for the specific execution of the con- -tract of sale, is not of itself sufficient to prevent the vendee being de- creed to accept the title; provided it appears to the satisfaction of the court that the suit so commenced cannot be successfully prosecuted; compare Levy v. Iroquois Co., 80 Md. 300, 305. 3 Levy v. Iroquois Co., 80 Md. 300, 304. §694 Specific performance. 800 under them; and in no way decides the question in issue as against the rest of the world. 1 Therefore, doubts on the title of an estate are liable to be discussed between the owner of the estate and some third person not before the court, and not bound by its decision. If there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the court con- siders this to be a circumstance which renders the bargain a hard one for the purchaser, and one which in the exercise of its discretion it will not compel him to execute. 2 In this con- nection it is to be noted that a purchaser may be compelled to take a title acquired by the vendor by adverse possession; 3 but the rule in respect to reasonable doubt applies with em- phasis where the vendor has no record title whatever, but re- lies upon adverse possession.* 1 Gill v. Wells, 59 Md. 492, 494; Levy v. Iroquois Co., 80 Md. 300, 304; Trustees v. Rother, 83 Md. 289, 296; see Fry, Spec. Perf. sec. 881; ante, sec. 653. In Trustees v. Rother, 83 Md. 289, 292, it was contended that certain trusts raised by deeds were void, and that certain heirs took no interest. The court said that "we do not deem it necessary or proper to decide that question, as the parties to the deeds are not represented in this case;" and see page 295. Compare Handy v. Waxter, 75 Md. 517, 523-524; Newbold v. Peabody Heights Co., 70 Md. 493, 503. In Fry, Spec. Perf. sec. 897, it is said that recent legislation in England "affords machinery under which, in some cases at least, the person making an adverse claim may be brought into the litigation, and that which in his absence might have remained doubtful, may receive judicial determination. It seems worthy of consideration whether this principle could not be further extended." 2 Gill v. Wells, 59 Md. 492, 494-495; Emmert v. Stouffer, 64 Md. 543, 554; Trustees v. Rother, 83 Md. 289, 296; Fry, Spec. Perf. sec. 881. Compare Ebling v. Dreyer, 149 N. Y. 460, 471, where it was held that the possibility that the court might thereafter, when parties now unborn are before it, construe a statute in a different manner, was so remote as not to be a ground for refusing specific performance. ' See also Daniell v. Shaw, 166 Mass. 582. 3 Bay v. Posner, 78 Md. 42, 49. Compare Second Univ. Society v. Dugan, 65 Md. 460, 473; Lurman v. Hubner, 75 Md. 265, 272-273; Gump v. Sibley, 79 Md. 165, 169; Owings v. Baldwin, 8 G. 337, 351-352; and see ante, sec. 501, note 3. ^Trustees v. Rother, 83 Md. 289, 295-296; in this case it is said, page 292: "It may be true that the appellant has a perfectly good title by ad- versary possession to this lot, but the question is whether it has been 801 Specific performance. §695 §695. Waiver by purchaser; certain objections. — A purchaser originally entitled to examine the vendor's title may subsequently waive that right, either expressly or by im- plication. If, after the defect in the title is known, he continues in possession committing acts of ownership, it will be held that there has been a waiver of Objections, and an acceptance of the title. 1 The questions involved in decisions upon the validity of titles in cases of specific performance embrace a large variety of subjects, and are not within the scope of this volume. Cer- tain instances are, however, stated in the note. 2 so established by the evidence as to justify us in decreeing a specific per- formance of the contract." And on page 295 it is said: "We do not determine that the appellant has not acquired a good title by adverse possession, but only that it is not free from reasonable doubt, so far as the evidence in the record discloses." Compare McPherson v. Schade, 149 N. Y. 16, 22. 1 Canton Co. v. B. & O. R. Co., 79 Md. 424, 431-433; one who enters and continues in possession under a contract of sale, cannot be al- lowed, whilst affirming the contract, to repudiate it by refusing to pay the purchase money, and cannot be permitted to show an outstanding title. See also Van Bibber v. Reese, 71 Md. 608, 620; Myers v. Sill- jacks, 58 Md. 319, 333-334; Williams v. Mayor, &c, 6 H. & J. 529, 535, (bill by landlord against tenant in possession.) 2 Among the cases where the objections have been held not sufficient to prevent a specific performance are the following: (see also ante, sec. 501) : where a judgment was standing against the vendor, from which, however, an appeal had been taken and bond filed; Brewer v. Herbert, 30 Md. 301, 313-314. Where attachments were laid in the hands of a trustee vendor under certain circumstances; Herzberg v. Warfield, 76 Md. 446, 449. Where mortgage notes of released mort- gages were not produced; Marburg v. Cole, 49 Md. 402, 413-414. Where a will under which property was sold was probated in common form and might thereafter be caveated; Seldner v. McCreery, 75 Md. 287, 295-296. Where the grantor of the vendor was a married woman, who had acquired title during coverture; Nicholson v. Condon, 71 Md. 620, 623. Compare also Levy v. Iroquois Co., 80 Md. 300, 305; Van Bibber v. Reese, 71 Md. 608, 619. Among objections held sufficient to prevent a decree for specific performance was where a legal title was purchased, but the vendor had only an equitable one; O wings v. Baldwin, 8 G. 337, 350; and see pages 353-354, on another point. Where the property was subject to restric- tions as to the mode of improvement and the use of the property; Newbold v. Peabody Heights Co., 70 Md. 493, 503; Peabody Heights Co. v. Willson, 82 Md. 186, 204. Where the title of the vendors would be defeated if a supposed will were admitted to probate; Emmert v. 51 §696-697 Specific performance. 802 §696. When vendor should be able to convey. — The ability of the vendor to convey should exist when his duty by the contract arises to convey; or at the time of a decree for conveyance, where time is not of the essence of the con- tract. 1 If the contract is conditional upon the vendor being able to deliver, and the condition has been performed, the con- tract becomes absolute, and rests upon the same footing for all purposes as if it had been originally made positively and with- out reference to any contingency. Therefore when an agree- ment shows that the vendor has not at the time of the contract a clear title, but is to acquire it and then convey, if he is able to give a clear title at the time when, by the equities of the partic- ular case, he is required to convey, in order to entitle himself to the consideration, there will be no obstacle to a specific en- forcement. 2 §697. Inability of vendor to convey precisely as agreed. — A vendee in an unexecuted contract is entitled to have that for which he contracts before he can be compelled to part with the consideration he agreed to pay. 1 Where there is a substantial defect with respect to the nature, character, situ- Stouffer, 64 Md. 543, 554; stated in Seldner v. McCreery, 75 Md. 287, 296. Where it did not appear from the record that the plaintiff had a title free from reasonable doubt in respect to adversary possession; Trustees v. Rother, 83 Md. 289, 295. iBuchanan v. Lorman, 3 G. 51, 77; Dorsey v. Hobbs, 10 Md. 412, 417; Foley v. Crow, '37 Md. 51, 59; compare Brewer v. Herbert, 30 Md. 301, 314; Cochran v. Pascault, 54 Md. i, 17; Linthicum v. Thomas, 59 Md. 574, 582; Owings v. Baldwin, 8 G. 337, 351; Gilman v. Smith, 71 Md. 171. In Gill v. Wells, 59 Md. 492, 502-503, it was held that the title was defective, but could be cured by a deed from certain persons; but al- though such a deed would enable the vendor to sell the land thereafter, it was too late to obtain the deed for the purpose of enforcing the con- tract involved in the suit. "Canton Co. v. B. & O. R. Co., 79 Md. 424, 429-430. See also ante, sec. 686. [§697.] iBuchanan v. Lorman, 3 G. 51, 77; Dorsey v. Hobbs, 10 Md. 412, 417; Foley v. Crow, 37 Md. 51, 59; Gill v. Wells, 59 Md. 492, 493; Herzberg v. Warfield, 76 Md. 446, 449. In Canton Co. v. B. & O. R. Co., 79 Md. 424, 429, it was said that if a person sells that which he has not the power to convey, he 803 Specific performance. §697 ation, extent or quality of the estate, which is unknown to the vendee, and in regard to which he is not put upon inquiry, a specific performance will not be decreed. 2 But it does not necessarily follow from this general rule that there is no case of specific execution at the instance of the vendor, unless he has ability to convey in strict and exact compliance with the contract as to the quantity or extent of the subject-matter sold. 3 There are many cases where, owing to special circumstances, the vendor may obtain specific performance of a contract in equity, although he may not be able to convey to the vendee to the full extent bargained for. In a case where the vendor is unable, from any cause not involving mala fides on his part, to convey each and every parcel of the land contracted to be sold, and the part that cannot be conveyed is of small importance, or is immaterial to the purchaser's enjoyment of that which may be conveyed to him, there the vendor may insist on perform- ance, with compensation to the purchaser, or a proportionate abatement from the agreed price. But this cannot be done where the part is a considerable portion of the entire subject matter, or is material to the enjoyment of the other part. 4 Any misdescription of the estate or interest or extent or value of the property in a material and substantial point, so far affect- ing the subject-matter of the contract, that it may reasonably be supposed that but for such misdescription the contract would never have been made, at once releases the purchaser from the bargain. 5 cannot compel a purchaser to perform by taking less than he contracted to receive. 2 Ellicott v. White, 43 Md. 145, 153; in this case, pages 150-151, the con- tract was that the vendee should receive a deed in fee for certain prop- erty; the contract sought to be enforced, however, was that the vendee should take a lease; specific performance was therefore denied; com- pare Rayner v. Wilson, 43 Md. 440, 445. 3 Foley v. Crow, 37 Md. 51, 60; compare Rayner v. Wilson, 43 Md. 440, 443-444- 4 Foley v. Crow, 37 Md. 51, 60; see the instances stated here; and compare the rule as stated in Keating v. Price, 58 Md. 532, 535. In Foley v. Crow, 37 Md. 51, 63, specific performance was de- creed of three lots of the four agreed to the sold, with an abatement from the contract price for the four lots. Compare Carmody v. Brooks, 40 Md. 240, 244-245; see also ante, sees. 499 and 506. 5 Gunby v. Sluter, 44 Md. 237, 247, quoted in Keating v. Price, 58 Md. 532, 536. §698-699 Specific performance. 804 §698. Interest and expenses in certain cases. — -Where a contract provided that an adjustment of expenses should be made as of a certain date, at which time the money was to be paid, and the vendee resisted a suit for specific performance, 'but was decreed to perform the contract, the vendor was entitled to interest on the purchase money from the date fixed. 1 In a case where the purchaser was a tenant of the vendor, the former was ordered to pay interest from the time named for payment, less a credit of the rent paid after that date. 2 Where possession was taken under a contract, in- terest was payable from the date at which the possession. be- gan. 3 Where an agreement required the vendor to furnish a marketable title, but did not provide for submitting the valid- ity of the title to the court, and a bill was filed by him against the vendee and the court held that the contract should be spe- cifically performed, the costs were 'ordered to be paid by the vendee. 4 §699. Contract binding- against heirs, &c. — Whenever the specific execution of a contract or covenant re- specting lands would have been decreed as between the orig- inal parties, it will be decreed as between all persons claiming under them in privity of estate, or of representation, or of title, unless other controlling equities have intervened. And this without regard to the form or technical character of the con- tract. 1 iPosner v. Bay, 79 Md. 30, 34; "the vendee doubtless felt justified in having the title passed upon by the court, but it was at the risk of being compelled to pay the interest" from the date fixed, if he failed to sustain his position. 2 Wilson v. Herbert, 76 Md. 489, 500.. 'Canton Co. v. B. & O. R. Co., 79 Md. 424, 434; compare Williams' case, 3 Bl. 186, 216, as to an occupation rent in such a case. 4 Posner v. Bay, 79 Md. 30, 34; "vendees might prefer, in all important transactions, to have judicial determinations of the validity of titles, if they are to be made at the expense of the vendors." Compare Fry, Spec. Perf. sec. 896. [§699.] iWorthington v. Lee, 61 Md. 530, 535; see ante, sec. 64; Smoot v. Rea, 19 Md. 398, 412; Light St. Bridge Co. v. Bannon, 47 Md. 129, 144; Etchison v. Dorsey, 1 Bl. 535. 536; Hardesty v. Richardson, 44 Md. 617, 618; Partridge v. Dorsey, 3 H. & J. 302, 320-321 ; Williams v. Mayor, &c, 6 H. & J. 529, 535. Under code, art. 16, sec. 80, where the court decrees that a deed S05 Specific performance. §700-701 The statute of frauds. §700. The statute as a defence; exceptions.— By the fourth section of the statute of frauds it is provided that no action shall be brought whereby to charge any person upon any contract or sale of any lands, tenements or hereditaments, or any interest in or concerning them, "unless the agreement upon which such action shall be brought or some memoran- dum or note thereof, shall be in writing," and signed. A plain- tiff seeking a performance of a contract in relation to land must therefore prove, first, that there was in fact a contract concluded between the parties; and second, that there is a sufficient note or memorandum of the contract to satisfy the .statute. 1 A contract may, however, be taken out of the opera- tion of the statute in certain classes of cases. These are, first, where the sale is made by the court as vendor; 2 second, where the parol contract is admitted, and the statute is not relied on; 3 third, in certain cases of fraud; 4 and fourth, by part perform- ance. 5 §701. Waiver of the Statute. — The court will enforce the specific performance of a contract within the statute, not in writing, where it is fully set forth in the bill, and is confessed Dy the answer of the defendant and the statute is not relied upon as a defence. In such a case relief is granted upon the ground that as the statute was intended to prevent fraud and perjury, there can be no danger of either where the con- tract is fully set forth in the bill and confessed in the answer; or upon the ground that the defendant has waived the benefit of the statute. 1 shall be executed, a trustee to execute it may be appointed; see the section in full, ante, sec. 677, note 2. In Dugan v. Gittings, 3 G. 138, 148, a trustee was appointed to convey for infant defendants. J Fry, Spec. Perf. sec. 496; see in general upon the statute Brantly on •Contracts, 41-57. 2 See ante, sec. 486, and note 5; sec. 453, and note 2. 3 See post, sec. 701. 4 See ante, sec. 670; Fry, Spec. Perf. sees. $67-577; Pomeroy, Spec. Perf. sees. 142-144. 5 See post, sec. 703. [§701.] * Albert v. Winn, 5 Md. 66, 72; Winn v. Albert, 2 Md. Ch. 169, 173-174; Small v. O'wings, I Md. Ch. 363, 366; Jones v. Slubey, 5 H. & J. §702-703 Specific performance. 806 §702. Pleading the statute. — Where a plaintiff sets up an agreement in his bill, which would be invalid by the statute of frauds unless in writing, and the defendant by his answer denies the agreement, it is not necessary for the defendant, in addition, to plead the statute or insist upon it as a bar. 1 But if the parol agreement alleged by the bill should be admitted by the answer, yet if the answer insists upon the statute of frauds as a defence, there can ordinarily be no decree. 2 §703; The doctrine of part performance. — The part performance of a contract by one of the parties to it may, in the contemplation of equity, preclude the other party from setting up the statute; and thus render the contract, although merely resting in parol, capable of being enforced by way of specific performance. 1 Where the statute is relied on as a bar, there can be no decree for specific performance but by proof of part performance; except in certain cases of fraud. 2 The doctrine of part performance has been applied chiefly to parol 372, 383; Ogden v. Ogden, i Bl. 284, 288; Lingan v. Henderson, 1 Bl. ' 236, 248. See also Worley v. Walling, 1 H. & J. 208, 209; Simmons v. Hill, 4 H. & McH. 252, 257; Six v. Shaner, 26 Md. 415, 443; Artz v. Grove, 21 Md. 456, 470; Graham v. Yates, 6 H. & J. 229; Drury v. Con- ner, 6 H. & J. 288, 293; Pomeroy, Spec. Perf. sees. 140-141; Browne, Stat. Frauds, sec. 498; ante, sec. 253, and notes 5-7. In Winn v. Albert, 2 Md. Ch. 169, 173-174, the chancellor con- sidered the reason given for the rule, that the agreement although orig- inally by parol became in compliance with the statute by being evidenced in writing by the answer under the signature of the defendant; and held 'that this reason could not be sustained. See the remarks in Albert v. Winn, 5 Md. 66, 72. In Artz v. Grove, 21 Md. 456, 470, the reasoning of the chancellor is indirectly approved. iBillingslea v. Ward, 33 Md. 48, 51; Semmes v. Worthington, 38 Md. 298, 317; Small v. Owings, 1 Md. Ch. 363, 366. Compare Wolf v. Cor- by, 30 Md. 356, 360. 2 Jones v. Slubey, 5 H. & J. 372, 383; Ogden v. Ogden, 1 Bl. 284, 288 - r Winn v. Albert, 2 Md. Ch. 169, 174; Hamilton v. Jones, 3 G. & J. 127, 132-133- [§703] !Fry, Spec. Perf. sec. 578. 2 See Owings v. Baldwin, 8 G. 337, 356; Frostburg Co. v. Thistle, 20- Md. 186, 189; Smith v. Crandall, 20 Md. 482, 500; ante, sec. 670. See Hall v. Hall, 1 G. 383, 387-391, for quotations to the effect that part performance may take a case out of the statute. 807 SPECIFIC PERFORMANCE. §703-704 contracts relative to the possession, use or tenure of land. 3 It has also been applied to contracts not to be performed within one year from the making thereof. 4 But it is said that the equity of part performance, to entitle a party to specific execution of contracts within the statute, does not extend to contracts within the clause in reference to agreements not to be performed within a year from the making thereof, when such contracts, not being evidenced by 'writing, relate to per- sonal service, or the subject-matter of them is the sale and delivery of mere personal chattels. 5 The doctrine of part per- formance is peculiar to courts of equity; at law it is not re- garded as taking a case out of the statute of frauds. 6 There is a tendency of late to a stricter construction of the statute, and an indisposition to except cases from its operation beyond well settled decisions. 7 The court is never anxious to grasp at slight circumstances to rescue a case from the operation of the stat- ute; nor does it indulge in any latitude of construction where there is any equivocation or uncertainty in the case presented. 8 §704. Basis of the doctrine. — The statute was enacted to provide as far as possible against the perpetration of frauds; and courts of equity never allow its provisions to be perverted and made instrumental in the accomplishment of fraud. They decree the specific execution of agreements where there has been a performance on one side, because the refusal to per- form on the other side is a fraud, and they will not permit the statute designed to prevent fraud to be used as an instrument for perpetrating a fraud. 1 To withhold relief in such a case, 3 Maddison v. Alderson, L. R. 8 App. Cas. 467, 480. 4 Harwood v. Jones, 10 G. & J. 404, 417. 5 Equitable Gas Co. v. Balto. Coal Tar Co., 63 Md. 285, 297. °Dugan v. Gittings, 3 G. 138, 162; Tuck v. Bowie, 1 Md. 87, 94. 7 Ridgway v. Ridgway, 69 Md. 242, 244, (1888) ; in Shepherd v. Shep- herd, 1 Md. Ch. 244, 247, (1848), and Beard v. Linthicum, 1 Md. Ch. 345, 347-348, (1848), the same observation was made; see also Gough v. Crane, 3 Md. Ch. 119, 133; Stoddert v. Tuck, 5 Md. 18, 33 r 34, 36-37; Semmes v. Worthington, 38 Md. 298, 319. 8 Shepherd v. Bevin, 9 G. 32, 43; Semmes v. Worthington, 38 Md. 298, 327; Smith v. Crandall, 20 Md. 482, 501. 1 Cole v. Cole, 41 Md. 301, 304; Ridgway v. Ridgway, 69 Md. 242, 244; Harwood v. Jones, 10 G. & J. 404, 417; Md. Savings Inst. v. Schroeder, §704-705 Specific pebfobmance. 808 \yould be to suffer a party seeking to shelter himself under the statute of frauds, himself to commit fraud, 2 by securing to himself the benefit of what has been done in part performance. 3 The right to specific performance in such a case is not founded upon the theory that part performance is a compliance with the statute; but upon the ground that such part performance takes the case entirely out of the statute. 1 §705. Proof of the parol contract. — If the defend- ant in his answer denies making the parol contract alleged, the plaintiff must fully establish the contract as alleged, and also such acts of part performance of the contract as will take the case out of the statute. 1 In most of the cases upon this subject, the defendant has denied making the contract alleged by the plaintiff, and questions have therefore arisen upon two points; first, the proof of the contract; and second, the character and proof of the acts of part performance. With respect to the parol contract, it is held there must be clear, definite and satis- factory proof of the terms of the contract of which part per- formance is alleged. 2 The existence of the identical contract 8 G. & J. 93, no; Hall v. Hall, i G. 383, 387; Small v. O wings, 1 Md. Ch. 363, 369; Frieze v. Glenn, 2 Md. Ch. 361, 364; see also Townsend v. Vanderwerker, 160 U. S. 171, 184; Green v. Drummond, 31 Md. 71, 83-84; Hardesty v. Richardson, 44 Md. 617, 624; Fry, Spec. Perf. sees. 585-591; Pomeroy, Spec. Perf. sees. 103-104, 106. 2 Hamilton v. Jones, 3 G. & J. 127, 131-132. 3 Riggles v. Erney, 154 U. S. 244, 254. "The fraud does not consist in availing himself of the statute to protect himself; but in using it to appropriate to himself what justly belongs to another;" Green v. Drum- mond, 31 Md. 71, 84. 4 Owings v. Baldwin, 1 Md. Ch. 120, 122; compare Small v. Owings, 2 Md. Ch. 363, 367; Moale v. Buchanan, 11 G .& J. 314, 323; Crane v. Gough, 4 Md. 316, 332-333- iSemmes v. Worthington, 38 Md. 298, 317; Billingslea v. Ward, 33 Md. 48, 51. The plaintiff must allege in the bill the making of the parol con- tract and the acts of part performance upon which he intends to rely; Small v. Owings, 1 Md. Ch. 363, 368-369. In Moale v. Buchanan, 11 G. & J. 314, 323-324, it is said that the fact that the agreement was partly by parol and partly in writing can make no difference where part performance is relied on. 2 Ridgway v. Ridgway, 69 Md. 242, 245; C. & O. Canal Co. v. Young, 3 Md. 480, 490; Gough v. Crane, 3 Md. Ch. 119, 133; Smith v. Crandall, 809 Specific performance. §705-706 stated in the bill must be shown, and each and every part of the agreement set up in the bill should be clearly established by the proof. 8 Where there is a variation between the con- tract alleged and that proved, and there is any uncertainty in the mind of the court as to what the terms of the parol contract were, its interference will be refused, unless in certain cases of immaterial variation. 4 §706. Character of acts of part performance.— The act relied upon as part performance must of itself furnish evidence of the identity of the contract. It is not enough that it is evidence of some agreement, but it must relate to and he unequivocal evidence of the particular agreement charged in the bill, and be done solely with a view to the performance j20 Md. 482, 500-501; Shepherd v. Shepherd, i Md. Ch. 244, 245; Small v. Owings, 1 Md. Ch. 363, 370-371 ; Billingslea v. Ward, 33 Md. 48, 52 ; Owings v. Baldwin, 1 Md. Ch. 120, 123-125; Stoddert y. Tuck, 5 Md. 18, 34, 371 Wingate v. Dail, 2 H. & J. 76; Hopkins v. Roberts, 54 Md. 312, 317. See the remarks in Pomeroy, Spec. Perf. sees. 136-137. In Semmes v. Worthington, 38 Md. 298, 327, it is said that "the •contract must be clear and definite and the acts done must be equally clear and definite;" quoting Shepherd v. Bevin, 9 G. 32, 43-44; see also Reese v. Reese, 41 Md. 554, 559; Hall v. Hall, 1 G. 383, 393. 3 Beard v. Linthicum, 1 Md. Ch. 345, 348; Mundorff v. Kilbourn, 4 Md. 459, 462; Smith v. Crandall, 20 Md. 482, 500. In Wingate v. Dail, 2 H. & J. 76, quoted in Stoddert v. Tuck, 5 Md. 18, 34, it was said that specific performance would never be de- creed "where it remains uncertain whether or not there was any con- tract, and even if there was a- contract, it does not appear clearly what was the engagement" of the plaintiff; see also Worley v. Walling, 1 H. & J. 208, 209-210. In Smith v. Crandall, 20 Md. 482, 501, it was said that "the con- tract must first be established; failing in this, these superadded consid- erations" of part performance could have no avail; compare Whitridge v. Parkhurst, 20 Md. 62, 85. But a decree may be passed for a specific performance to a less extent than that stated as the contract; as in Graham v. Yates, 6 H. & J. 229; Drury v. Conner, 6 H. & J. 288, 293. See also ante, sec. 678, note 3. 4 Fry, Spec. Perf. sees. 634, 639. In Gough v. Crane, 3 Md. Ch. 119, 134, it is said that where de- fendants set up a parol contract and part performance to take a case out of the statute, there should be the same clear, definite and unequivo- cal proof of the contract set up in the answer as would be required of them if they, as plaintiffs, were asking for its specific performance. §706 Specific performance. 810 of the particular agreement. 1 The act must be part perform- ance of the identical contract alleged, 2 and refer exclusively to the agreement. 3 The act must be such as the party would not have done, unless on account of that very agreement and with a direct view to its performance.* If the acts might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance. 5 If the act performed is an equivocal act it will afford no proof of an agreement. The act performed should in itself tend to show not only that there has been an agreement, but also to throw light on the nature thereof, so that neither the fact of an agreement, or even the nature of that agreement, rests solely upon parol evidence, the parol evidence being only auxiliary to the internal evidence afforded by the circumstances of the case itself. 6 The act must not be merely introductory or ancillary to the agreement, but a part execution of the substance of the agreement, unequivocally referring to and resulting from the agreement. 7 And the act must be of a substantial nature, and such that the party would sustain an injury amounting to a fraud by a refusal to execute the agreement. 8 1 Semmes v. Worthington, 38 Md. 298, 326-327; C. & O. Canal Co. v. Young, 3 Md. 480, 490; Smith v. Crandall, 20 Md. 482, 500-501; Shep- herd v. Bevin, 9 G. 32, 43-44; Beard. v. Linthicum, 1 Md. Ch. 345, 348; O wings v. Baldwin, 1 Md. Ch. 120, 123, 125; Shepherd v. Shepherd, 1 Md. Ch. 244, 246; Rosenthal v. Freeburger, 26 Md. 75, 80; Ridgway v. Ridgway, 69 Md. 242, 245. See also in general Fry, Spec. Perf. sees. 581-585; Pomeroy, Spec. Perf. sees. 107-109. 2 C. & O. Canal Co. v. Young, 3 Md. 480, 490; Smith v. Crandall, 20 Md. 482, 500; Billingslea v. Ward, 33 Md. 48, 52; Duvall v. Myers, 2 Md. Ch. 401, 406; Gough v. Crane, 3 Md. Ch. 119, 133; Owings v. Bald- win, 1 Md. Ch. 120, 123; Frostburg Coal Co. v. Thistle, 20 Md. 186, 190. 3 Mundorff v. Kilbourn, 4 Md. 459, 462; Whitridge v. Parkhurst, 20 Md. 62, 85-86; Smith v. Crandall, 20 Md. 482, 500; Billingslea v. Ward, 33 Md. 48, 52; Shepherd v. Shepherd, 1 Md. Ch. 244, 245. 4 Owings v. Baldwin, 1 Md. Ch. 120, 123; Beard v. Linthicum, 1 Md. Ch. 345, 350; Small v. Owings, 1 Md. Ch. 363, 369; see the facts in Hamilton v. Jones, 3 G. & J. 127, 132. 'Rosenthal v. Freeburger, 26 Md. 75, 80. e Stoddert v. Tuck, 4 Md. Ch. 475, 482; and see Stoddert v. Tuck, 5 Md. 18, 34. 'Small v. Owings, 1 Md. Ch. 363, 369; Hall v. Hall, 1 G. 383, 391. 8 Semmes v. Worthington, 38 Md. 298, 327; Small v. Owings, I Md. Ch. 363, 369; Hall v. Hall, 1 G. 383, 391. 811 Specific performance. §707 §707. Possession of land. — When possession is as- sumed as an act of part performance it must appear that the land has been delivered and the possession taken in pursuance of the contract and so retained and continued. 1 The posses- sion must be referable to, the contract, and not to a distinct title. 2 Mere occupancy, not shown to be in pursuance of the, contract, does not constitute part performance. 3 The posses- sion, moreover, must appear to be a notorious and exclusive one; a mere technical possession, not open to the observation of the neighborhood, is not sufficient. 4 a Frostburg Coal Co. v. Thistle, 20 Md. 186, 190; compare Billingslea v. Ward, 33 Md. 48, 54; Reese v. Reese, 41 Md. 554, 559- See in general Fry, Spec. Perf. sees. 601-606; Pomeroy, Spec. Perf. sees. 115-118. In Riggles v. Erney, 154 U. S. 244, 254, it is said: "While acts done prior to the contract, or preparatory thereto, such as delivering abstracts of titles, measuring the land, drawing up deeds, etc., are not regarded as sufficient part performance, it is otherwise with such acts as taking open possession of the land sold, or making permanent or val- uable improvements thereon, or doing other acts in relation to the land manifestly inconsistent with any other theory than that of carrying out the parol undertaking." Compare Pomeroy, Spec. Perf. sec. no. As to making improvements on land as an act of part perform- ance, see Hannan v. Towers, 3 H. & J. 147, 152; Pomeroy, Spec. Perf. sees. 126-131. 2 Moale v. Buchanan, n G. & J. 314, 323; O wings v. Baldwin, 1 Md. Ch. 120, 122; see also Howard v. Carpenter, n Md. 259, 277-278. In Owings v. Baldwin, 8 G. 337, 347-348, 356, it was held that where possession of land was delivered not under the contract sought to be specifically enforced, but under a subsidiary agreement, the ori- ginal contract still remaining unrescinded, there was no such part per- formance as would remove the bar of the statute. 3 Hopkins v. Roberts, 54 Md. 312, 316-317. In Semmes v. Worthington, 38 Md. 298, 326, it was said that "the partial and subordinate possession that was held by the plaintiff, under the peculiar circumstances of the case, was, to make the most of it, an equivocal act, susceptible of a variety of interpretations and affording no evidence whatever of the particular contract alleged, and to allow such act, even if the contract were otherwise established, to remove the bar of the statute, would operate as a virtual repeal of it as applied to cases like the present." See also page 330, per Miller, J.; Billingslea v. Ward, 33 Md. 48, 54; Morris v. Harris, 9 G. 19, 30. 4 Frostburg Coal Co. v. Thistle, 20 Md. 186, 190; such a possession if held sufficient for a decree to enforce the contract, would manifestly afford an opportunity and encouragement for dishonest testimony. See also Pomeroy, Spec. Perf. sees. 120-121. §708-709 Specific performance. 812 §708. Possession by tenant. — If one who is already in possession of land as tenant, verbally contracts with the owner for a new term, his merely continuing in possession after the making of the alleged contract is not an act of part perform- ance tinder the rule so as to justify a decree for a lease accord- ing to the contract; in such a case the continued holding is properly referable to the old tenancy, and. does not necessarily imply any new agreement between the parties. 1 Even pay- ment of additional rent may be an equivocal circumstance ; but where a bill alleged that the landlord had accepted the addi- tional rent "upon the foot of the agreement," this was held a sufficient allegation of part performance. 3 §709. Payment and possession.— The payment by the purchaser, to the vendor, of a part, or even the whole, of the purchase money, is not an act of part performance which will of itself take the parol contract out of the statute. 1 But per- formance of the consideration, and change of possession under the contract, when combined, have always been regarded as re- lieving a parol agreement in respect to land from the operation of the statute. 2 1 Spear v. Orendorf, 26 Md. 37, 44; Rosenthal v. Freeburger, 26 Md. 75, 80; see the remarks and facts in these cases. Compare Semmes v. Worthington, 38 Md. 298, 329-330, per Miller, J.; Myers v. Forbes, 24 Md. 598, 612. See also Pomeroy, Spec. Perf. sec. 124. In Drury v. Conner, 6 H. & J. 288, 292, a vendee was in pos- session of the land at the time of the contract, and continued to retain possession; it was said that this amounted to an actual delivery. 2 Spear v. Orendorf, 26 Md. 37, 44-45. [§7°9-] 1 Fry, Spec. Perf. sees. 613-616; the best of the three different ■explanations of this doctrine is said to be that the payment of money is an equivocal act, and not in itself, until the connection is established by parol testimony, indicative of a contract concerning land. See the consideration of the matter in Pomeroy, Spec. Perf. sees. 112-114, and Browne, Stat. Frauds, sees. 461-464. The rule has been recognized in Artz v. Grove, 21 Md. 456, 471; Hopkins v. Roberts, 54 Md. 312, 316-317. 2 Dugan v. Gittings, 3 G. 138, 157; Bechtel v. Cone, 52 Md. 698, 707- 708; Gough v. Crane, 3 Md. Ch. 119, 131. See also Drury v. Conner, 6 H. & J. 288, 292; Mousley v. Wilson, 1 Md. Ch. .388, 390; Haines v. Haines, 6 Md. 435, 440; Hannan v. Tow- ers, 3 H. & J. 147, 151-152; Townsend v. Vanderwerker, 160 U. S 171, 183. 813 Specific performance. §710-711 §710. Marriage as. part performance. — Where a ver- bal contract is made in relation to, or upon the consideration of, marriage, the marriage alone is not considered a part per- formance upon which the court may decree the specific execu- tion of the contract, 1 for to hold this would be to overrule the statute, which enacts that every agreement in consideration of marriage, to be binding, must be in writing. 2 A promise made in anticipation of a marriage, followed by the marriage, is the exact case contemplated by the statute. 3 But where there is not only a marriage, but any further act done in reliance upon the promise sued upon, there a claim to specific execution may be sustained; 4 such an act is the delivery of possession of prop- erty. 5 §711. Proof of acts of part performance.— The acts of part performance must be clearly and definitely proved ; dis- 1 Pomeroy, Spec. Perf. sec. in; Ogden v. Ogden, i Bl. 284, 288; Gough v. Crane, 3 Md. Ch. 119, 128-129; Crane v. Gough, 4 Md. 316, 333- In Browne, Stat. Frauds, sec. 459, it is said: "It would certainly seem that where a party, to whom a marriage portion has been prom- ised, actually enters into the marriage upon the faith of the promise, this is such a change of condition on the faith of the agreement as an- swers all the requirements. * * But it appears to be firmly settled that the mere marriage will not be sufficient." 2 Fry, Spec. Perf. sec. 619; see also sees. 620-623; compare Gough v. Crane, 3 Md. Ch. 119, 129. 3 Pomeroy, Spec. Perf. sec. in. 4 Browne, Stat. Frauds, sec. 459, a; Fry, Spec. Perf. sec. 607; Pom- eroy, Spec. Perf. sec. 133, in which it is also said that the courts are perhaps not inclined in such cases to scrutinize these ancillary acts with severity, or to require that they should be in themselves of much importance. See the instances in Crane v. Gough, 4 Md. 316, 333-334, revers- ing Gough v. Crane, 3 Md. Ch. 119; Worley v. Walling, 1 H. & J. 208, 210; Stoddert v. Tuck, 5 Md. 18. Compare "consideration," ante, sec. 687, and "gifts," ante, sec. 671. 5 Dugan v. Gittings, 3 G. 138, 157; this case, as is said in Gough v. Crane, 3 Md. Ch. 119, 130, proves that "an agreement by parol made by a father with his daughter in consideration of her marriage, and as a marriage endowment, is founded on a valuable consideration, and that upon the consummation of the marriage, and the delivery of the prop- erty to the daughter," the case is taken out of the statute. §711 Specific performance. 814 tinct and unequivocal evidence is required. 1 The evidence of part performance of a parol contract under the statute of frauds need not be in writing. The statute was designed to exclude oral evidence of the agreement of sale, not oral evidence of the acts of part performance, or things done in execution of the agreement. 2 iBillingslea v. Ward, 33 Md. 48, 52, 54-55; Hopkins v. Roberts, 54 Md. 312, 317; Stoddert v. Tuck, 5 Md. 18, 37. See also Ridgway v. Ridgway, 69 Md. 242, 245; Semmes v. Worthington, 38 Md. 298, 319; Reese v. Reese, 41 Md. 554, 559. 2 Hall v. Hall, 1 G. 383, 388-389; compare Tuck v. Bowie, 1 Md. &7. 95- ' In Lenderking v. Rosenthal, 63 Md. 28, 32, work was com- menced under a contract before the contract had been actually exe- cuted, but not before all the material terms had been agreed upon, and with the understanding that the terms thus agreed upon were to be formally embodied in a written instrument and signed. It was said that "as a court of equity would have decreed specific execution after part performance of the agreement, we must therefore look to the contract both in its verbal and written state, in order to determine the rights of the parties thereunder. Mills v. Matthews, 7 Md. 315." CHAPTER XXXII. MISCELLANEOUS PROCEEDINGS. 712. Bill to perpetuate testi- 716. Possession and title. mony. 717. Guardianship. 713. Bill to take testimony de 718. Adoption. bene esse. 719. Special case stated. 714. Present use of the above 720. Declaratory decrees. bills. 721. Bill for account. 715. Bill quia timet; nature. Interpleader. 722. Jurisdiction; position of 724. Procedure; nature of de- plaintiff, cree. 723. Character of conflicting claims. Sale before final decree. 725. The code provision; pur- 727. Sale before appearance or pose. answer. 726. Notice to the parties in- 728. Discretion of court; proof. terested. 729. Miscellaneous. Vacation of fraudulent acts, by non-judgment creditors. 730. Independently of statute. 732. Purpose and scope of the 731. The present statutory pro- statute. visions. 733. Issues for jury trial. Confirmation of tax sales. 734. The code provisions. 736. Objections to the pro- 735. Effect of order of confir- ceeding; appeal. mation. Bill of discovery. 737. Nature and present use. 740. Answer to the bill. 738. Discovery and relief. 741. Miscellaneous. 739. When bill is maintaina- ble; frame thereof. ; 815 §712-713 Miscellaneous proceedings. 816 §712. Bill to perpetuate testimony. — A suit to per- petuate testimony could only be maintained where the plain- tiff had at the time some right, vested or contingent, to which the testimony would relate; but such right could not then be investigated, established or defended by an action at law. 1 The sole object of the suit is to assist other courts, and to preserve evidence to prevent future litigation. The bill should state the subject-matter in regard to which the plaintiff is desirous of giving evidence, and should show the plaintiff's interest therein, and the necessity of perpetuating the evidence. As no relief is sought by the bill none should be prayed. The bill should be under affidavit. 2 §713. Bill to take testimony de bene esse. — A suit to take testimony de bene esse is maintained, in aid of a pending action at law, to examine a witness who is very aged, or who is sick, or who is about to depart from the country, or a person who is the only witness to a material fact in the cause, although neither aged nor sick; the ground of , the proceeding being the evident danger lest the evidence should be entirely lost to the party by a delay. The bill differs materially frorn a bill to perpetuate testimony; while the latter can only be brought by a party who has no present immediate cause of action, the bill to take testimony de bene esse can only be maintained by one who has an existing cause of action or defence, and while the action at law is pending. The bill should be under affi- davit. 1 1 Pomeroy, Eq. Jur. sec. 21 1. 2 Story, Eq. PI. sees. 300-306; Story, Eq. Jur. sees. 1505-1512; Daniell, Ch. Pr. 1 572- 1 575; Beach, Eq. Pr. sec. 150. In the federal courts "any circuit court, upon application to it as a court of equity, may according to the usages of chancery, direct depo- sitions to be taken in perpetuam rei memoriam;" Rev. Stat. sec. 866; Fos- ter, Fed. Pr. sec. 279; Richter v. Union Trust Co., 115 U. S. 55, 56. [§713.] iPomeroy, Eq. Jur. sec. 213; Story, Eq. Jur. sees. 1513-1516; Story, Eq. PI. sees. 307-310; Daniell, Ch. Pr. 932-941. In the federal courts provision is made for bills of this character; Rev. Stat. sees. 863-865; U. S. equity rule 70; Foster, Fed. Pr. sec. 280. 817 Miscellaneous proceedings. §714-715 §714. Present use of the above bills. — Bills to perpetuate testimony or to take testimony de bene esse have rarely been used in Maryland. 1 Substantially the same pur- pose may be accomplished in cases at law under statutory pro- visions 2 and in equity by a petition in the cause, stating the circumstances. 3 It is provided by the equity rules that the ex- amination of witnesses de bene esse, or for the perpetuation of their testimony, when by law allowed, may be had before an examiner in the order and form prescribed by the equity rules for taking evidence before the examiner; and if no good ob- jection be made to such testimony in twelve months from the time of the return to court thereof, the court shall order the same to be recorded in perpetual memory. 4 §715. Bill quia timet; nature. — A bill quia timet, 1 or to remove a cloud upon the title of real estate, or a bill of peace, seeks to prevent future litigation by removing existing causes of controversy as to the title. It is brought in view of antici- pated wrongs or mischiefs, and the jurisdiction of the court is iln Lingan v. Henderson, i Bl. 236, 238, such a bill was filed; com- pare Alex. Ch. Pr. 76; and could have been used under the code of i860, art. 16, sec. 140. 2 Code, art. 35, sec. 27. 3 Alex. Ch. Pr. 76. (The case of Associate Congregation v. McCoy, circuit court of Baltimore city, docket 29 A 309, was one to perpetuate testimony. — Brewer.) 4 Equity rule 44; code, art. 16, sec. 224; this supersedes the provisions of the code of i860, art. 16, sec. 140, which provided that "a commission shall issue to perpetuate testimony, on a bill for that purpose, before any appearance of the party defendant, &c." The clause in the present code provision, art. 16, sec. 224, in reference to recording the testimony in the absence of good objection, was not found in the equity rule as adopted by the court of appeals, but was added thereto by the code of 1888, from the provision of the code of i860, art. 16, sec. 140, which was originally the act of 1779, ch. 8. [§7 I 5-] 1 Upon the general subject see Story, Eq. Jur. sees. 825-851; Pomeroy, Eq. Jur. sees. 1398-1399. In Drury v. Roberts, 2 Md. Ch. 157, 159, the term was used with reference to a bill for an injunction and receiver in a partnership controversy. See also Whitridge v. Durkee, 2 Md. Ch. 442, 443; Tes- sier v. Wyse, 3 Bl. 28, 36; Salmon v. Clagett, 3 Bl. 125, 182. 52 §715-716 Miscellaneous proceedings. 818 invoked because the party fears future injury to his rights and interests. 2 The ground of equity jurisdiction is that the plain- tiff, being in possession of the property, has no remedy at law. 3 §716. Possession and title.— Only those who have a clear, legal and equitable, title to land, connected with posses- sion, have a right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title. It is as a general rule necessary that the plaintiff shall be in the posses- sion of the property, and, except where the defendants are nu- merous, that his title if a legal one shall have been established at law, or be founded on undisputed evidence or long continued possession. 1 Possession must be affirmatively alleged and 2 Livingston v. Hall, 73 Md. 386, 395. In Textor v. Shipley, 77 Md. 473, 475, it is said that the object of the bill is to "protect the owner of the legal title from being disturbed in his possession, and from being harassed by suits in regard to his title by persons setting up unjust and illegal pretensions;" quoting Polk v. Pendleton, 31 Md. 118, 124; compare Holland v. Mayor, &c, 11 Md. 186, 197. 3 Polk v. Pendleton, 31 Md. 118, 124; Textor v. Shipley, 77 Md. 473, 475; see also Polk v. Rose, 25 Md. 153, 161-162. As to a bill of peace against a person reiterating an unsuccessful claim to real property, see Pomeroy, Eq. Jur. sec. 248; Story, Eq. Jur. sees. 852-860; Holland v. Challen, no U. S. 15, 19. iLivingston v. Hall, 73 Md. 386, 395; Helden v. Hellen, 80 Md. 616, 620; Textor v. Shipley, 77 Md. 473, 479; McCoy v. Johnson, 70 Md. 490, 492; Polk v. Pendleton, 31 Md. 118, 124; Crook v. Brown, 11 Md. 158, 173- In Textor v. Shipley, 77 Md. 473, 479, the principle as stated in the text is qualified by the addition of the words "as a general rule." Followed in Helden v. Hellen, 80 Md. 616, 620. In Gage v. Kaufman, 133 U. S. 471, 472, it is said that an allegation that the plaintiff is seized in fee simple is a sufficient allegation that he has the possession as well as the title. In Baumgardner v. Fowler, 82 Md. 631, 640, it is said that "courts have held that where the plaintiff has the legal title to lands that are wild, uncultivated and unoccupied, he may invoke the aid of a court of equity to remove a cloud upon his title, although he has no other than constructive possession resulting from legal ownership." See, the case of Steuart v. Meyer, 54 Md. 454, as stated in Textor v. Shipley, 77 Md. 473, 478-479; Frost v. Spitley, 121 U. S. 552, 556. 819 Miscellaneous proceedings. §716-717 shown 2 as well as legal title in the plaintiff. 3 If the possession is in another, the remedy is by an action of ejectment. 4 An owner in possession is entitled to relief against persons vexa- tiously using a pretended deed under a sale for taxes, interfer- ing with his tenants and throwing a cloud or suspicion over the title. 5 So also a bona fide assignee of a mortgage has a right to maintain a suit to relieve the mortgaged property from the cloud and embarrassment produced by the unfounded preten- sions of a purchaser at a tax sale, and his assignee. 6 The as- signee for the benefit of creditors of a mortgagor has been held entitled to file a bill against the mortgagee of a satisfied, al- though unreleased, mortgage. 7 §717. Guardianship. — Under the inherent jurisdiction of courts of equity over the persons and property of infants, ap- plications are sometimes made to these courts for the appoint- ment of guardians for infants. A court of equity can and will appoint a guardian of the person and estate of an infant where there is no other guardian, or none who will or can act. 1 The 2 Livingston v. Hall, 73 Md. 386, 396. 3 Textor v. Shipley, 77 Md. 473, 475; Dick v. Foraker, 155 U. S. 404, 414. *Helden v. Hellen, 80 Md. 616, 620; Textor v. Shipley, 77 Md. 473, 477. 479; and see Baumgardner v. Fowler, 82 Md. 631, 640-641. In Polk v. Pendleton, 31 Md. 118, as stated in Helden v. Hellen, 80 Md. 616, 621, "it was distinctly held that a party not in possession of the land, but claiming title to it under an execution sale, could not maintain a bill to have the adverse title of the party in possession claim- ing under a tax sale declared void or to have the question of title ad- judicated." B Polk v. Rose, 25 Md. 153, 161-162; the relief here was by injunction and cancellation of a deed from a tax collector. 6 Polk v. Reynolds, 31 Md. 106, 112; in this case the relief was the same as that in the case in note 5. 7 Brown v. Stewart, 56 Md. 421, 432; in this case the mortgagee was decreed to release the mortgage. In Wicks v. Westcott, 59 Md. 270, 277, it was said of a trustee's sale: "If the liens (on the property) are very numerous, or complicated, and the title clouded, so that it may be doubtful if any valuable interest is to be sold, a creditor might file a bill for the purpose of removing the cloud, and having the property sold by decree and the proceeds of sale marshalled." iPomeroy, Eq. Jur. sees. 1303-1310; Story, Eq. Jur. sees. 1327-1361; §717-718 Miscellaneous proceedings. 820 court of chancery alone had the power to appoint a guardian for female minors between the ages of eighteen and twenty-one years. 2 The application for the appointment of a guardian is made 'by an ex parte petition by next friend without any bill or suit. 3 Without further proceedings, the court may appoint a guardian, requiring him, before acting as such, to file a bond for a proper amount. 4 So also, in a pending suit, the court may appoint a guardian for an infant upon petition. 5 The infant then becomes a ward of the court. 6 §718. Adoption. — By the act of 1892, ch. 244, the chan- cery courts, upon the application of any person residing in the city or county where the application is made, have power to pass a decree declaring any minor child the adopted child of the petitioner, upon reasonable notice to the parent or guard- ian by summons, order of publication, or otherwise, provided the court shall become satisfied upon careful investigation that the best interests and welfare of such child will be thereby pro- moted. The effect of the decree is to entitle the adopted child to the same rights of inheritance and distribution as to the pe- titioner's estate and the same rights of protection, education, and maintenance as if born to the petitioner in lawful wedlock. 1 Schouler, Dom. Rel. sees. 288, 291; Corrie's case, 2 Bl. 488, 492-493, 500-502; compare Dorsey v. Gilbert, 11 G. & J. 87, 90. (In Baltimore city instances of the appointment of guardians by the chancery courts are: ex parte Elliott, circuit court of Baltimore city, docket 26 A, fol. 19; ex parte Gilmor, same court, docket 27 A, fol. 19; in circuit court No. 2 of Baltimore city, ex parte Kurtz, docket A. fol. no, 1896. — Brewer.)* 2 Corrie's case, 2 Bl. 488, 502; Waring v. Waring, 2 BL 673, 674-675; see also Greenwood v. Greenwood, 28 Md. 369, 387. 3 Corrie's case, 2 Bl. 488, 489-490; in this case the father was appointed guardian of his eight children upon one petition. 4 Corrie's case, 2 Bl. 488, 508-509; see the form of decree in this case. 5 Waring v. Waring, 2 Bl. 673, 675. "Compare Jenkins v. Whyte, 62 Md. 427, 432; Helms v. Franciscus, 2 Bl. 544, 577-578. *Act of 1892, ch. 244; amending code, art. 16, title "Chancery,"' sub-title "Infants," by adding six additional sections thereto; see the act for the provisions in full. Similar statutes are in force in some other States; see Schouler, 821 Miscellaneous proceedings. §719-720 §719. Special case stated. — The equity rules provide that any person interested, or claiming to be interested, in any question cognizable by a court of equity, as to the construction of any statute, deed, will or other instrument of writing, or as to any other matter falling within the original jurisdiction of such court, or made subject to the jurisdiction thereof by stat- ute, may state and raise such question before the court in the form of a special case stated, instead of formal pleading. Pro- visions are made for the entitling and docketing of such case, the averments to be made in the case, the hearing, the draw- ing of inferences, the decree, the right of appeal, the parties to the case and other matters. 1 §720. Declaratory decrees. — The statute provides 1 that "any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such legal character or right; and the court may, in its discretion, make therein a Dom. Rel. sec. 232; Humphrey, 137 Mass. 84, 85; Ballard v. Ward, 89 Pa. St. 358, 361-362. (Instances of the proceedings under the statute may be found in the case of ex parte Oppenheimer, circuit court of Baltimore city, docket 32 A fol. 338; in which case the court became ''satisfied, upon careful investigation," from testimony taken in open court; and in circuit court No. 2 of Baltimore city, ex parte Clarke, docket A, 1894, fol. 105. — Brewer). x Equity rules 47-49; code, art. 16, sees. 184-186. [§720.] iCode, art. 16, sec. 26. Other provisions are: "no court shall make any such declaratory decree where the plaintiff being, in the opinion of the court, able to seek further relief than a mere declaration of title, omits to do so;" sec. 27; "contingent characters or rights may be the subject of such a declaratory suit and decree, if they are actually disputed, but not other- wise;" sec. 29; sec. 28 relates to trustees; sec. 31 declares upon whom the decree shall be binding; by sec. 32, an appeal from the de- cree is allowed. The act of 1890, ch. 64, amends sec. 30 by adding provisions for a jury trial of questions, which, under the constitution, a party may be entitled to have submitted to a jury; this amendment being added probably in consequence of the decision of the court in McCoy v. John- son, 70 Md. 490, 492-493, to the effect that the right of trial by jury in such cases could not be abridged or taken away; as to issues for jury trial see ante, sees. 232-235. §720 Miscellaneous proceedings. 822 declaration that he is so entitled without any further or other relief being asked or given ;" but "no declaratory suit can be brought, nor decree passed, to establish a fact or facts that are without legal consequences." 2 It is only in those cases where equity would have jurisdiction, if some specific or ultimate relief were asked, that the court would be warranted in proceed- ing under the statute to make a declaratory decree. 3 The jur- isdiction can only be exercised in regard to such matters as are properly cognizable by a court of equity.* Jurisdiction under the statute should never be invoked for the purpose of having determined mere moot points, or mere abstract or ex- perimental questions. In all cases the court should see that there is a real bona fide question for controversy involved, as between the parties to the cause, and that there is an existing propriety for its immediate decision. 5 Whether or not the 2 Code, art. 16, sec. 30. 3 Pennington v. Pennington, 70 Md. 418, 431. *McCoy v. Johnson, 70 Md. 490, 493; in this case the bill asked the court to decree that the defendants had no title to certain land of which they held the paper title; this being a question for the determination of a court of law, the proceeding could not be sustained. B Pennington v. Pennington, 70 Md. 418, 430-431; Wethered v. Safe Deposit Co., 79 Md. 153, 164, in which the decree of the court below was reversed in so far as it passed a declaratory decree, because the appellate court was not convinced that it was a proper case to exercise its discretion by passing upon questions which had not then arisen and some of which might never arise; pages 163-164. In Wahl v. Brewer, 80 Md. 237, 243, it was held that where property is devised to one for life with remainders over, the question whether the remainders are vested or contingent will not be determined during the life of the life tenant, before the time for the distribution of the estate, when there is no necessity for a" present adjudication of the question. In Pennington v. Pennington, 70 Md. 418, 431, it was held that it did not appear that the plaintiff was able to seek other relief than a declaration of title and consequently it was proper for the court to as- sume jurisdiction. Courts never entertain a suit to give a construction to an instru- ment orto declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent and un- certain; Wahl v. Brewer, 80 Md. 237, 243, and cases cited. If there is no matter in dispute and the application is to do nothing more than to declare future rights, the court will not entertain jurisdiction; Devec- mon v. Shaw, 70 Md. 219, 235. 823 Miscellaneous proceedings. §720-721 jurisdiction shall be exercised in a proper case vests by the terms of the statute in the discretion of the court. 6 §721. Bill for account.— The general rule is that a suit in equity for an accounting may be maintained when the rem- edies at law are inadequate. 1 The instances in which the legal remedies are held to be inadequate, are said to be as follows : 2 first, where there are mutual accounts between the plaintiff and the defendant; that is, where each of the two parties has re- ceived and paid on account of the other; 3 second, where the accounts are all on one side, but there are circumstances of great complication, or difficulties in the way of adequate rem- edy at law; 4 and, third, where a fiduciary relation exists be- tween the parties, and a duty vests upon the defendant to ren- der an account. The latter class includes perhaps the larger number of instances, embracing suits against trustees, 5 be- 6 Code, art. 16, sees. 26, 31; McCoy v. Johnson, 70 Md. 490, 493; Weth- ered v. Safe Deposit Co., 79 Md. 153, 163; Pennington v. Pennington, 70 Md. 418, 430; Livingston v. Hall, 73 Md. 386, 392-393. iSee Adair v. Winchester, 7 G. & J. 114, 117; Oliver v. Palmer, 11 G. & J. 426, 443 ; Union Pass. R. Co. v. Mayor, &c, 71 Md. 238, 241 ; White v. White, 1 Md. Ch. 53, 55; Hughes v. Jones, 2 Md. Ch. 178, 188; Hertle v. Schwartze, 3 Md. 366, 383; Moreton v. Harrison, 1 Bl. 491, 499. In Union Pass. R. Co. v. Mayor, &c, 71 Md. 238, 240-241, the bill was for discovery and account; it was held that the fact that pre- cisely the same relief as was sought in the case could be obtained in an action at law by statute, did not oust the jurisdiction of the equity court, the principle being that where a court of equity has original jurisdiction, and a Statute confers upon the common law courts a sim- ilar power, the jurisdiction of equity is not thereby ousted. 2 This classification and statement are taken from Pomeroy, Eq. Jur. sec. 1421. See also in general Gibbs v. Clagett, 2 G. & J. 14, 17-20, per Bland, Ch., and the opinion of the court of appeals. The subject is treated at length in Story, Eq. Jur. chapter 8. 3 Gibbs v. Clagett, 2 G. & J. 14, 18, per Bland, Ch.; Oliver v. Palmer, n G. & J. 426, 443. 4 See Union Pass. R. Co. v. Mayor, &c, 71 Md. 238, 241. 5 Smith v. Townshend, 27 Md. 368, 387; as in Ringgold v. Ringgold, 1 H. & G. 11; Dennis v. Dennis, 15 Md. 73. «Glenn v. Hebb, 12 G. & J. 271, 273-274; Wilhelm v. Caylor, 32 Md. 151, and cases cited; McKaig v. Hebb, 42 Md. 227, 234-235. Compare Bevans v. Sullivan, 4 G. 383, 388; Heflebower v. Buck, 64 Md. 15, 21; White v. White, 4 Md. Ch. 418; Rosenzweig v. Thompson, 66 Md. 503- §721-722 Miscellaneous proceedings. 824 tween partners, 6 between principal and agent, 7 and other cases. 8 On a proper bill to account, after a decree to account, both parties are considered as actors, and therefore according as th,e balance may be shown, there may be a decree in favor of the plaintiff or of the defendant. 9 Thus upon a bill by one partner against his co-partners, after the termination of the partnership, all the parties are regarded as actors, and their rights must be adjudicated, as if each partner was a plaintiff, filing a bill against his co-partner. 10 Interpleader. §722. Jurisdiction; position of plaintiff. — Jurisdiction in cases of interpleader 1 is founded upon a conflict between 'Williams v. West, 2 Md. 174, 197. s As in cases between co-tenants; Hamilton v. Conine, 28 Md. 63s, 641; s,ee also Hughes v. Jones, 2 Md. Ch. 178, 188; Neale v. Hagthrop, 3 Bl. SSi, 561-562. 'Colegate D. Owings' case, 1 Bl. 370, 404; see also Griffith v. Bro- naugh, 1 Bl. 547, 548; Hall v. McPherson, 3 Bl. 529, 533-534- 10 Grove v. Fresh, 9 G. & J. 280, 296. As to the position of creditors as actors seeking payment out of funds in court, see Pierson v. Trail, 1 Md. 142, 143; Williamson v. Wilson, 1 Bl. 418, 434; Welch v. Stewart, 2 Bl. 37, 41 ; ante, sec. 386, note 5. In bills for account, there was an exception to the general rule that an answer under oath responsive to the bill was evidence for the defendant; see ante, sec. 160; the exception was that on a general bill to account, the answer was no evidence of disbursements; Ringgold v. Ringgold, 1 H. & G. 11, 81-82; McNeal v. Glenn, 4 Md. 87, 97; Glenn v. Randall, 2 Md. Ch. 220, 225. The statute of limitations is a bar to a bill for an account; Mc- Kaig v. Hebb, 42 Md. 227, 235; Wilhelm v. Caylor, 32 Md. 151, and cases cited; so also is the fact that the partners have stated an account between themselves; Stiles v. Brown, 1 G. 350, 356. Cases bearing upon various other points in bills for account are Stiles v. Brown, 1 G. 350; Glenn v. Hebb, 17 Md. 260; Hammond v. Hammond, 2 Bl. 306, 387-388; Calvert v. Carter, 18 Md. 73, 109. iUpon the general subject see Story, Eq. Jur. sees. 800-824; Daniell, Ch. Pr. 1560-1572; Beach, Eq. Pr. sees. 141-149, 638, 1014, 1034; Foster, Fed. Pr. sees. 88-89. In Story, Eq. PI. sec. 291, it is said that a bill of interpleader "is ordinarily exhibited where two or more persons claim the same debt, or duty, or other thing from the plaintiff by different or separate in- terests; and he, not knowing to which of the claimants he ought of right to render the same debt, duty or other thing, fears that he may suffer 825 Miscellaneous proceedings. §722 two or more persons severally claiming the same debt through separate and different interests, and the person liable to dis- charge the debt is unable to ascertain which of the claimants is entitled, and he is therefore threatened with two or more suits in respect of a subject-matter in which he claims no interest and in regard to which he is an indifferent stakeholder. 2 The position of the plaintiff should be one of continuous impartial- ity. 3 -His position is that of a stakeholder; he has no interest in the issue, and cannot be affected by the final decree in the injury from their conflicting claims, and therefore he prays that they may be compelled to interplead, and state their several claims, so that the court may adjudge to whom the same debt, duty or other thing belongs." In Langdell, Eq. PL sec. 162, it is said: "An interpleading suit in- volves two litigations, — one between the plaintiff and the defendants upon the question whether the defendants shall interplead, — the other between the different defendants, i. e., the interpleading itself." 2 Nat. Park Bank v. Lanahan, 60 Md. 477, 514; in this case a trustee for the benefit of creditors sought to compel certain creditors who had attached funds of the estate in his hands, to interplead with other cred- itors who filed their claims in the trust estate. It was held that the prin- ciple upon which jurisdiction in interpleader is exercised had no ap- plication to the case, where creditors were seeking to prosecute their legal rights in "a court of law; and that the trustee, entitled to commis- sions on a large sum of money in his hands, was not an indifferent stakeholder without any interest in the subject-matter in controversy. In Kerr v. Union Bank, 18 Md. 396, 402-403, it was held that although if at the time the bill was filed there was some plausible ap- prehension that the plaintiff would be involved in a' two-fold responsi- bility, yet as before final decree the cause of apprehension was re- moved, the bill should be dismissed. Compare Owings v. Rhodes, 65 Md. 408, 413. 3 Kerr v. Union Bank, 18 Md. 396, 404; Groves v. Sentell, 153 U. S. 465, 485; Killian v. Ebbinghaus, no U. S. 568, 571. In Ammendale Institute v. Anderson, 71 Md. 128, 130-131, the owner of a building erected for it by a contractor filed its bill of inter- pleader against certain mechanics' lien claimants and others, seeking to compel them to determine by litigation with each other the dividend they should receive from the fund due the contractor by the plaintiff. It was held that there was no foundation for a bill of interpleader, as the mechanics' lien claimants make their claim directly against the building, and have no concern with the state of the accounts between the contractor and the owner of the building. 4 Owings v. Rhodes, 65 Md. 408, 414. A bill in the nature of a bill of interpleader may lie when the §723 Miscellaneous proceedings. 826 §723. Character of conflicting claims.— The mere fact of a double claim is not in all cases and under all circum- stances the test of the right to file a -bill of interpleader. The possession of the fund or property in dispute may be of such character as to make the proceeding improper; as for exam- ple, the relation of principal and agent; or one by his own con- duct may put himself in such a position as to preclude his right to dispute the title of another; or parties may claim the same property under different titles not derived from the same com- mon source; in such cases the bill cannot be maintained. 1 plaintiff claims some interest for himself in the fund or matter. In Weikel v. Cate, 58 Md. 105, ill, W. held a judgment against S., who ob- tained a judgment against C, whereupon W. issued an attachment on the latter judgment and laid it in the hands of C. to attach the debt due by C. to S. By mistake a judgment of condemnation was entered against C, who was then threatened with execution on both judg- ments against him. C. thereupon filed his bill for injunction to re- strain the executions, and prayed that he might be permitted to bring into court the amount that he owed, to abide the result of the suit. This bill is in the nature of a bill of interpleader; compare Foster, Fed. Pr. sec. 89; Beach, Eq. Pr. sec. 149; Story, Eq. PI. sec. 297 b; Knighton v. Young, 22 Md. 359, 373; v"an Winkle v. Owen, 34 Atl. Rep. (N. J. Eq.) 400, 401; Killian v. Ebbinghaus, no U. S. 568, 572; Groves v. Sen- tell, 153 U. S. 465, 485-486. 1 Emerick v. New York Life Ins. Co., 49 Md. 352, 354; the court also said: "the appellant may be right in saying that the stakeholder must show that it has not been by any erroneous or wrongful act of his own that the double or conflicting claims have arisen;" and see also the ad- mission of counsel on page 355. In this case a husband took out a life insurance policy in favor of his wife; the policy was afterwards changed and made payable to his personal representatives. After the death of the husband, the wife alleged that the change was in fraud of her rights, and the proceeds were claimed both by the wife and the executor of the husband. The case was held proper for a bill of in- terpleader by the insurance company. In Zihlman v. Zihlman, 75 Md. 372, one of the defendants claimed the entire fund in the hands of the stakeholder, and the other claimed one-half of it. It was held proper to direct the undisputed one-half to be paid to the party claiming the entire fund, and leaving the other half to be disposed of by the future order of the court, although the other party claimed that the party claiming the entire fund was indebted to him for other matters, in no way connected with the fund, such indebt- edness constituting no lien upon the fund. In Union Bank v. Kerr, 2 Md. Ch. 460, 465-466, it is said that a 827 Miscellaneous proceedings. §724 §724. Procedure; nature of decree. — A bill of in- terpleader must pay into court the money which is due by the plaintiff, 1 and the plaintiff must file an affidavit that there is no collusion between him and any of the parties. 2 An injunc- tion may issue restraining proceedings against the plaintiff. 3 Provision is made for process by publication against non- residents. 4 A decree passed upon the filing of a bill of inter- pleader, ordering the plaintiff to pay money into court, and re- quiring the defendants to interplead and answer is interlocu- tory, settling the rights of no party, and is at all times prior to a final decree subject to revision and alteration, being merely auxiliary to further proceedings, and does not require a bill of review to vacate, amend or rescind the same. 5 bill of interpleader cannot be maintained after a verdict or judgment has been obtained in a suit against the plaintiff. In Fowler v. Lee, 10 G. & J. 358, 364, it was held that a judgment debtor seeking an injunction to restrain execution on the ground that he could not safely pay the debt, should file a bill of interpleader, and pay the debt into court, to be held for the benefit of the party showing his right to receive it. 1 Chase v. Manhardt, 1 Bl. 333, 345; Ammendale Institute v. Ander- son, 71 Md. 128, 130. Compare the procedure in Zihlman v. Zihlman, 75 Md. 372, 374. 2 Ammendale Institute v. Anderson, 71 Md. 128, 130; the bill is de- murrable if this affidavit is not filed with it. 3 As in Zihlman v. Zihlman, 75 Md. 372, 374; Barth v. Rosenfeld, 36 Md. 604, 609. 4 Code, art. 16, sec. no. provides that "where in a bill of interpleader some of the defendants are non-residents and such non-residents fail to answer, the court may order the answers filed by the other defend- ants to be taken as the answers of such non-resident defendants, or may as to such defendants direct testimony to be taken; provided no- tice of the substance and objects of the bill and answers be given as in other cases of non-residents. This section to apply to one or more defendants.'' Code, art. 16, sec. 112, as amended by the act of 1892, ch. 637, pro- vides for publication in interpleader suits against the unknown heirs or personal representatives, whether residents or non-residents, of per- sons who ought to be parties. The statute is quoted in full, ante, sec. 126, note 2. °Owings v. Rhodes, 65 Md. 408, 416; Barth v. Rosenfeld, 36 Md. 604, 616. In Owings v. Rhodes, 65 Md. 408, 413-415, it is said that from the nature of the procedure there must be a preliminary decree so that §725 Miscellaneous proceedings. 828 Sale before final decree. §725. The code provision; purpose. — Under a pro- vision of the code, courts of equity are authorized in certain the co-defendants may have an opportunity to properly present their conflicting claims; the court could not undertake to determine the validity of the claim in controversy before all evidence in support of those claims had been adduced. Where the claims of the co-defendants are referred to the auditor, and the court finally ratifies an account allowing a claim, the order of ratification is a final order. As a de- fendant after the decree is in the anomalous situation of plaintiff as well as defendant, he may file a supplemental bill to bring new defendants before the court, without making the other parties to the suit parties to it. See the procedure and facts here. In Emerick v. New York Life Ins. Co., 49 Md. 352, 353, the order of the court below required the parties to interplead; the appeal was taken from this order by one of the parties. Instances of interpleader suits are also found in Barth v. Rosen- feld, 36 Md. 604, 608-610; and see Cross v. Hecker, 75 Md. 574; Ditch v. Western Natl. Bank, 79 Md. 192, 209-212; Whitridge v. Barry, 42 Md. 140, 143, 150; Mears v. Moulton, 30 Md. 142; Emerick v. Coakley, 35 Md. 188. From the authorities, and in accordance with the practice, it appears that the bill should state the plaintiff's rights and thereby nega- tive any interest in the thing in controversy, and should state the several claims of the opposing parties, setting forth the claims specifi- cally so that they, may appear to be of the same nature and character. The prayer should be that the defendants may interplead and settle their demands between themselves. An injunction may be prayed to restrain any suit at law against the plaintiff. As stated in the text, the money must be brought into court, and there must be an affidavit by the plaintiff that there is no collusion between him and any of the par- ties. Upon the filing of the bill, the court may pass an order directing the payment of the money into court, and upon such payment ordering an injunction to issue (without the filing of a bond by the plaintiff) to restrain any suits at law, requiring the parties to interplead and direct- ing one of them to be plaintiff and the other defendant. The court in its discretion selects one party as plaintiff and the other as defendant. The party named as plaintiff files his bill, and the party named as de- fendant files his answer or other reply. If it appears from these pro- ceedings that it was proper to file the bill of interpleader, the court may then pass an order discharging the original plaintiff from further lia- bility in the case, and directing his costs and counsel fees to be paid out of the fund. This terminates the suit as to the original plaintiff, and the cause proceeds between the original defendants. As to security for costs against a non-resident named as plaintiff, see Beach, Eq. Pr. sec. 1034. As to form of bill, &c, see Carey's Forms, p. 548; see as to counsel fees, ante, sec. 568, note 3. 829 Miscellaneous proceedings. §725 cases to order a sale of real or personal property before the pas- sage of a final decree. 1 The Object of this provision is to em- power the court, in any case coming within its operation, to order a sale before the rights of the parties have been deter- mined by final decree. The effect of such an order is not to settle the rights of the parties, but to convert the property into money, when the court is satisfied that a sale will ultimately be decreed, and when in its discretion it shall consider such a course necessary for the preservation of the property and the interests of the parties litigant. 2 The object of the power is to prevent waste and depreciation of property, and to promote the interests of all parties concerned 3 and not of one party only.* The statute does not confer a new jurisdiction upon the court, but merely prescribes a summary remedy, or mode of proceed- ing, in cases over which the court had full jurisdiction inde- pendently of the statute. Sales made under the statute do not fall within the rules governing the exercise of a special and lim- ited jurisdiction conferred by statute. 5 1 Code, art. 16, sec. 192; (code of i860, art. 16, sec. 129); the section is as follows: "In all cases where a suit is instituted for the sale of real or per- sonal property, or where from the nature of the case a sale is the proper mode of relief, the court, in its discretion, may order a sale of the prop- erty before final decree, if satisfied clearly by proof that, at the final hearing of the case, a sale will be ordered, and order the money arising from such sale to be deposited or invested, to be disposed of as the court shall direct by the final decree." The section is a codification of the act of 1835, ch. 380, sec. 1; Dorsey's lessee v. Garey, 30 Md. 489, 499; the act was more elaborate in its provisions than the code of i860, art. 16, sec. 129, which was incor- porated without change in the code of 1888, art. 16, sec. 192. 2 Dorsey's lessee v. Garey, 30 Md. 489, 498; Kelly v. Gilbert, 78 Md. b 431. 435. 438. ^Washington R. Co. v. Southern R. Co., 55 Md. 153, 156; where these objects are not to be attained, the power should not be exercised. See the facts in Donohue v. Daniel, 58 Md. 595, 599-6oi. ^Cornell v. McCann, 37 Md. 89, 99; Kelly v. Gilbert, 78 Md. 431, 436, 438; the original act of 1835, ch. 380, sec. 1, provided for a sale "on such proof as to the court shall appear satisfactory of the propriety of a sale for the benefit of all the parties claiming a sale under their respective pretensions." 5 Dorsey's lessee v. Garey, 30 Md. 489, 496. In Dorsey v. Dorsey, 30 Md. 522, 528, it is said that a bill filed for §726-727 Miscellaneous proceedings. 830 §726. Notice to the parties interested.— An order of sale under the section is not a judgment or decree in such a sense as to require, for its validity, previous notice to the par- ties interested. Before passing such an order it is proper in most cases that notice should be given; and the absence of such notice, might be considered sufficient ground for a re- versal of the order on appeal. But an error in this respect, is not a jurisdictional one, and cannot be availed of in a collat- eral proceeding. 1 Even in the most pressing cases, however, where it is practicable or possible, all parties who may be af- fected by the sale should have an opportunity to be heard, and show cause against it, before the order is passed; otherwise great injustice might be done. 2 §727. Sale before appearance or answer. — When a case comes within the provisions of the statute, the power is conferred on the court, upon satisfactory proof as therein pre- scribed, to pass an order of sale at any time after the bill has been filed, without waiting for the appearance or answers of the defendants j 1 but this can only be done where from the nature of the proceedings, and the evidence disclosed by them, the court can see with certainty that the final decree in the cause will re- the sale of mortgaged real estate, is a suit instituted for the sale of real estate within the very terms of the statute; and that the provisions of code, art. 16, sec. 187, (code of i860, art. 16, sec. 125), are subordinate to the provisions of this section ; see ante, sec. 448 and note 4. horsey' s lessee v. Garey, 30 Md. 489, 498; Dorsey v. Dorsey, 30 Md. 522, 529; compare Dorsey v. Thompson, 37 Md. 25, 45, in which the court said that it did not see how the appellant could be benefitted by a reversal of the order under which sales were made, since the pur- chasers would be protected even if the order were reversed. "Cornell v. McCann, 37 Md. 89, 99; Kelly v. Gilbert, 78 Md. 431, 436. In Cornell v. McCann, 37 Md. 89, 99, it was held that as the defendants were not allowed a reasonable opportunity to resist the passage of the orders of sale, and as the orders themselves did not ap- pear to be proper, they should be reversed. [§'727.] iDorsey's lessee v. Garey, 30 Md. 489, 499; Dorsey v. Dorsey, 30 Md. 522, 528; in these cases some of the defendants were non-resi- dents of the State, against whom publication was made; before the ex- piration of the period limited for their appearance, the order of sale was passed. This procedure was allowable under the statute; see also Dor- sey v. Thompson, 37 Md. 25, 48. 831 Miscellaneous proceedings. §727-729 quire the property to be sold, and that there exists a necessity for an immediate sale. 2 §728. Discretion of court; proof. — The section provides that "the court, in its discretion, may order a sale." The order is an exercise of a purely discretionary power; 1 the discretion to be exercised, however, is not a mere ar- bitrary one, but is subject to review on appeal; and if improv- idently exercised, the action of the court below may be set aside on appeal in the same case. 2 But where the discre- tion has been exercised in a case within the jurisdiction of the court, and falling within the provisions of the code, the ques- tion as to whether it was judiciously exercised cannot be in- quired into in a collateral proceeding. 3 The court may order a sale "if satisfied clearly by proof that at the final hearing of the case, a sale will be ordered." There should be proof satis- factory to the court upon this point, 4 but what proof or how to be taken is not prescribed. 5 §729. Miscellaneous. — The power conferred by the sec- tion is of an extraordinary character and should never be exer- cised except in very plain and unquestionable cases. It should 2 Cornell v. McCann, 37 Md. 89, 99. iWashington R. Co. v. Southern R. Co., 55 Md. 153, 156. 2 Dorsey"s lessee v. Garey, 30 Md. 489, 499; Dorsey v. Dorsey, 30 Md. 522, 528; Kelly v. Gilbert, 78 Md. 431, 436; see also Cornell v. McCann, 37 Md. 89, 97, 99- 3 Dorsey's lessee v. Garey, 30 Md. 489, 499, 496. 4 Dorsey's lessee v. Garey, 30 Md. 489, 499. In Kelly v. Gilbert, 78 Md. 431, 436, a bill for sale was filed by one mechanics' lien claimant against the owner of the property and other lien claimants; the owner answered at once admitting the facts charged and consenting to a sale of the property and on the same day an order of sale was passed, before the other defendants had an opportunity of answering. It was held that the bill, and answer of the owner, under such circumstances, did not furnish such proof as the statute required; to so hold would put it in the power of one lien claimant, and the owner, to procure an order of sale by collusion. If an appeal had been taken from the order of sale, the court of appeals would have held that it was erroneously passed. B Dorsey v. Dorsey, 30 Md. 522, 528; see the facts here, pages 528- 529. §729-730 Miscellaneous proceedings. 832 appear beyond reasonable doubt, either by proof or from the very nature of the case itself, that a sale must inevitably be de- creed on final hearing, to justify the passing of the interlocu- tory order, especially if applied for by the plaintiff only, and be- fore the answer of the defendants. 1 And if, after the passage of an order of sale, it becomes apparent that a sale is no longer desirable, the court may suspend or rescind the order. 2 The order is an interlocutory and not a final one, 3 as it determines no right and does not establish the claims of the parties upon whose application it is passed; 4 but an appeal lies from the order directing a sale. 6 Vacation of fraudulent acts, by non-judgment creditors. §730. Independently of statute. — Except where changed by statute, it is an invariable rule that the holder of a debt cognizable at law cannot obtain relief in equity, until he has shown that his legal remedies are inadequate. If he seeks to subject real estate to the payment of his debt, he must ob- tain a judgment creating a lien upon it; if he is pursuing a personal estate, he must obtain a lien by an execution on his judgment. When he has by these means acquired an interest in his debtor's property, he will be in a condition to ask the aid of a court of equity, if, in other respects, he can show a case within its jurisdiction. 1 An instance of this general principle iCornell v. McCann, 37 Md. 89, 99; see also Kelly v. Gilbert, 78 Md. 431, 436; Washington R. Co. v. Southern R. Co., 55 Md. 153, 156; Donohue v. Daniell, 58 Md. 595, 600. 2 Washington R. Co. v. Southern R. Co., 55 Md. 153, 157. 3 Kelly v. Gilbert, 78 Md. 431, 438. 4 Washington R. Co. v. Southern R. Co., 55 Md. 153, 156. 'Code, art. 5, sec. 25; see ante, sec. 324; Washington R. Co. v. South- ern R. Co., 55 Md. 153, 157; but no appeal lies from an order refusing to order a sale, or from an order rescinding or suspending an order of sale. [§73c] iBalls v. Balls, 69 Md. 388, 389; Morton v. Grafflin, 68 Md. 545, 562; on page 563, it is said that the act of 1835, ch. 380, sec. 2, "re- moves the disability of non-judgment creditors to sue in a court of equity to subject a debtor's property, fraudulently conveyed away, to the payment of his debts; but leaves the law in all other cases wholly unaffected; so that the decisions of our own court, applicable to cases other than such as seek to set aside fraudulent conveyances, are as au- 833 Miscellaneous proceedings. §730-731 of chancery jurisdiction was where a creditor sought the aid of a court of equity to pursue real property fraudulently con- veyed away by a debtor; in such case a lien must first have been obtained by way of judgment against the debtor before his lands fraudulently granted could be reached; and in such a pursuit of personal property, a fieri facias also must first have been issued. 2 §731. The present statutory provisions. — But by the act of 1835, ch. 380, sec. 2, now art. 16, sec. 46, of the code, 1 the rule has been changed with respect to proceedings to va- cate certain acts. The statute provides that "in no case of a proceeding in equity to vacate any conveyance or contract, or other act, as fraudulent against creditors, shall it be necessary for any creditor or plaintiff in the cause to have obtained a judgment at law on his demand, in order to the relief sought in the case." This statute enables the creditor to> proceed at once in equity to vacate any conveyance, contract or other act made to his prejudice, and obtain through the decree the satisfaction of his debt, without first obtaining a judgment upon his demand. 2 The act obviated the necessity ofobtain- thoritative as ever." See in general upon this subject, Pomeroy, Eq. Jur. sec. 1415- 2 Birely v. Staley, 5 G. & J. 432, 452; Griffith v. Fredk. Co. Bank, 6 G. & J. 424, 437-439, 443-444; Richards v. Swan, 7 G. 366, 377; Wylie v. Basil, 4 Md. Ch. 327, 329; Swan v. Dent, 2 Md. Ch. 111, 117, 118; Mor- ton v. Grafflin, 68 Md. 54s, 562. See also Wanamaker v. Bowes, 36 Md. 42, 56. Exceptions to the rule are noted in Swan v. Dent, 2 Md. Ch. 111, 117, citing Birely v. Staley, 5 G. & J. 432, 452, and see also Wylie v. Ba- sil, 4 Md. Ch. 327, 329. 1 Code, art. 16, sec. 46; (code of i860, art. 16, sec. 35); the statute fur- ther provides: "either in his own behalf or in the behalf of any other creditors who shall claim to participate in the benefit of the decree in the case; but when the debt of such plaintiff shall not be admitted by the pleadings in the case on the part of the defendant interested in con- testing the same, the court shall on application of any of the parties, send to any court of law an issue for determining the fact of such indebtedness, subject to the rules usually applied to issues out of chan- cery." 2 Goodman v. Wineland, 61 Md. 449, 452; Wanamaker v. Bowes, 36 Md. 42, 56; Sanderson v. Stockdale, 11 Md. 563, 573; Postal Tel. Co. 53 §731-733 Miscellaneous proceedings. 834 ing a lien by way of judgment as preliminary to equitable re- lief. 3 §732. Purpose and scope of the statute.— The pro- tection of creditors from the hazards attending the delay of making their claims by judgment and execution was a leading object in the enactment of this statute. 1 It has , materially en- larged their rights and extended their remedies in equity cases, to which the statute is alone applicable. 2 It applies not only to conveyances, but to "any contract or other act" alleged to be fraudulent as against creditors. The language is very com- prehensive both as to the transactions which may be vacated as fraudulent, and as to the creditors who may institute pro- ceedings to vacate them ; "any creditor or plaintiff," including partnership creditors, may do so. S ' The statute, however, clearly has no application where the thing complained of has not been executed, but rests merely in contemplation or in- tention. 4 §733. Issues for jury trial. — The section provides that when the debt of the plaintiff is not admitted by the pleadings the court shall, on application of any of the parties, send to any court of law an issue for determining the fact, subject to v. Snowden, 68 Md. 118, 123; Christopher v. Christopher, 64 Md. 583, 588. 3 Richards v. Swan, 7 G. 366, 377; Schaferman v. O'Brien, 28 Md. 565, 574-575- a Goodman v. Wineland, 61 Md. 449, 452. 2 Wanamaker v. Bowes, 36 Md. 42, 56; at law the rule which existed in equity prior to the statute, still prevails; pages 56-57. 3 Sanderson v. Stockdale, 11 Md. 563, 574; the language, "any con- veyance, or contract or other act" includes any transfer, assignment or contract in fraud of creditors. See also Flack v. Charron, 29 Md. 311, 323- "Balls v. Balls, 6g Md. 388, 389-390, citing Uhl v. Dillon, 10 Md. 500, 503, and Hubbard v. Hubbard, 14 Md. 356, 359-360. In Balls v. Balls, 69 Md. 388, the bill alleged that the defendant debtor, for the purpose of defrauding the plaintiff, was about to convey to a third party all the defendant's property; the prayer was that the defendant be enjoined from so doing, and that a trustee be appointed to sell the property for the payment of the debt, and for general relief; the bill was dismissed. 835 Miscellaneous proceedings. §733-734 the rules usually applied to issues out of chancery. 1 Whether the verdict of the jury in such a case is conclusive has not been decided ; but the findings are at least entitled to great weight and ought to prevail whenever the court is not clearly convinced that they are erroneous. Mere doubts of their cor- rectness should not prevail against them. 2 Confirmation op tax sales. §734. The code provisions. — The code provides, in substance, that in all cases where lands held in fee simple or by lease have been sold according to law, or shall be sold for taxes in arrear, it shall be the duty of the collector of taxes to report the sale to the circuit court of the county or to the cir- cuit court of Baltimore city ; , and the court shall examine the proceedings, and if they appear to be regular, and the provis- ions of law in reference thereto have been complied with, shall order notice to be given by advertisement warning all persons interested in the property to show cause, if any they have, why the sale should not be ratified and confirmed. If no sufficient cause is shown, the sale shall be ratified and the purchaser, on payment of the purchase money, shall have a good title to the property sold; but if good cause be shown, the sale shall be set aside; and also makes further provisions. 1 iMorton v. Grafflin, 68 Md. 545, 563; as to issues for jury trial in gen- eral, see ante, sees. 232-235. 2 Goodman v. Wineland, 61 Md. 449, 454. [§734-] 1 Code, art. 8i, sec. 52; see it in full. The history of the statute is briefly as follows: the code of i860, . art. 81, contained no provisions of this character, they having been introduced in the counties of Maryland, by the act of 1867, ch. 186, sec. 1; ex parte Tax Sale, 42 Md. 196, 198; previous to which time the code provided that the collector should report the sale to the county com- missioners or appeal tax court; code i860, art. 81, sec. 61; this act of 1867 added a new section to article 81 of the code of i860. The act of 1870, ch. 312, repealed code of i860, irt. 81, sec. 63, by re-enacting the same so as to contain the same provisions as the abovt quoted act of 1867, ch. 186, sec. 1, and made the act applicable in terms both to Baltimore city and the counties, the sales being reported to the circuit court of said city; ex parte Tax Sale, 42 Md. 196, 199. The act of 1872, ch. 384, amended the code of i860, art 81, sec. 63; it provided also for the disposition of the proceeds of sale if the sale be §735-736 Miscellaneous proceedings. 836 §735. Effect of order of confirmation. — Before the passage of the original statute, the law was settled that in order to sustain a title derived under a sale by a tax collector, the onus was upon the purchaser to prove affirmatively that the proceedings by the collector were in conformity with the stat- ute, and that all its provisions had been in all respects substan- tially complied with. The statute was passed to relieve the purchaser of this otitis, and to give encouragement to pur- chasers at tax sales. The effect of the order of ratification is to change the burden of proof, by establishing for the purchaser a prima facie case, and to cast the onus of showing that the pro- visions of law have not been complied with, upon the person assailing the proceeding. The order of ratification however is not conclusive in support of the sale. Until proof of the ille- gality of the proceedings, the sale, if ratified, stands good and effective by operation of the statute; but upon proof of any such illegality, the whole proceeding is rendered void. 1 §736. Objections to the proceeding; appeal.— The law imposes upon the court, before granting the order for publication, the important duty of carefully examining the regularity of the collector's proceedings and of being satisfied not ratified; and further that the "sale shall not be set aside if the pro- visions of law shall appear to have been substantially complied with, and the burden of proof shall be on the exceptant to show the same to be invalid under the law;" stated in Guisebert v. Etchison, 51 Md. 478, 486. The act of 1874, ch. 483, amended the code of i860, art. 81, making the number of the section 51, the material change being the pro- vision that the purchaser shall "on payment of purchase money" have a good title to the property sold; stated in Steuart v. Myer, 54 Md. 454. 466. The code of 1888, art. 81, sec. 52, is substantially the same as the act of 1874, ch. 483, sec. 51; the first clause, however, providing for all cases where lands "have been sold according to law." 1 Guisebert v. Etchison, 51 Md. 478, 486, 488, and cases cited; Steuart v. Meyer, 54 Md. 454, 465-467; Cooper v. Holmes, 71 Md. 20, 26; Rich- ardson v. Simpson, 82 Md. 155, 159; Baumgardner v. Fowler, 82 Md. 631, 638; in this latter case, page 639, quotations are made to the effect that it is not competent for the legislature to make a tax deed conclusive evidence either of title in the grantee, or of the jurisdictional facts which would make out title. 837 Miscellaneous proceedings. §736-737 that he has performed all things required of him by the law in making the sale. Yet the order of publication is only prelim- inary, and all questions touching the validity of the sale prop- erly arise upon the final hearing for ratification. 1 If the court finds upon examination that the proceedings are not regular, it may set them aside without notice by advertisement, and thereupon the collector must proceed to make a new sale. 2 The statute confers upon the court a special and limited juris- diction which attaches upon the report of the collector. 3 No appeal from the action of the court is provided, and hence none can be given by construction; and this whether the order ratifies the collector's sale 4 or sets the same aside. 5 Bill of discovery. §737. Nature and present use. — A bill of discovery 1 is one far the discovery of facts resting in the knowledge of the 1 County Comms. \. Clarke, 36 Md. 206, 222; in this case land of a deceased person was sold under a decree in a creditors' bill case and thereafter a tax sale of the land was made by a collector; upon publica- tion of the order nisi in a proceeding to ratify the tax sale, creditors of the deceased excepted to the ratification. It was held that the court having acquired jurisdiction in the creditors' bill case, the collector could not proceed to sell, but should apply to the court for the pay- ment of the taxes. (In Baltimore city a somewhat similar case is ex parte Tax Sale Lot No. 139, circuit court No. 2, docket 4, A, fol. 74; see this case for an instance of the procedure in regard to exceptions. — Brewer). 2 Ex parte Tax Sale, 42 Md. 196, 201. In such cases the contest over the exceptions to the ratification may involve the interests of the owner of the property, seeking to re- deem; of the purchaser at the tax sale, seeking to hold his bargain; and of thetax authorities, seeking to sustain their proceedings and to avoid expenses. , 3 Steuart v. Meyer, 54 Md. 454, 466; Meyer v. Steuart, 48 Md. 423, 425; Guisebert v. Etchison, 51 Md. 478, 487. 4 Meyer v. Steuart, 48 Md. 423, 425; see also page 426. 5 Margraff v. Cunningham, 57 Md. 585, 589. (In Baltimore city when tax sales are reported for confirmation by the city collector the city pays the court costs of the proceedings to and including the report, and the purchaser pays the costs thereafter accruing. — Brewer.) [§737-] 1 See in general Wigram on Discovery; Story, Eq. PI. sees. 311-325; Daniell, Ch. Pr. 1556-1559; Langdell, Eq. PL sees. 167-181. The case of Price v. Tyson, 3 Bl. 392, 397-406, contains a lengthy §737-738 Miscellaneous proceedings. 838 defendant, or of deeds or writings or other things in his cus- tody or power, and seeking no relief in consequence of the discovery; though it may pray the stay of proceedings in an- other court till the discovery is made. The bill was commonly used in aid of the jurisdiction of some court of law, to enable the party who prosecuted or defended an action at law, to obtain a discovery, from the other party to the cause, of facts which were material to the prosecution or defence thereof. 2 The necessity for bills of discovery arose from the common law rule rendering parties to causes incompetent as witnesses; but as this rule has been abrogated, there is now seldom any occa- sion for their use. Yet they are sometimes used, and statutory provisions are in force for taking them pro confesso. 3 The jurisdiction of the equity courts to require a discovery is not taken away by the statutory provision authorizing courts of law to require answers to bills of discovery in actions at law; the principle being that where a court of equity has original jurisdiction, and a statute confers upon the common law courts a similar power, the jurisdiction of equity is not thereby ousted. 4 §738. Discovery and relief.— The bill may be for dis- discussion of the subject; §[1 of the -matters therein stated are not re- ferred to in these sections. 2 Story, Eq. PI. sec. 311, The bill may either be in aid of an action at law already begun, or about to be brought; Wolf v. Wolf, 2 H. & G. 382, 388, 389; Price v. Tyson, 3 Bl. 392, 397; in the latter case, page 399, it is said that "the bill does in effect perform the office of a summons for witnesses to attend and testify before the court by which the plaintiff's case is to be tried and determined. It collects evidence to be used in that court in like manner as the testimony of witnesses who may be brought before it;" compare Salmon v. Clagett, 1 Bl. 125, 144. It has also been used against garnishees in attachment cases; Devries v. Buchanan, 10 Md. 210, 215. 3 Code, art. 16, sees. 128, 172; stated in Salmon v. Clagett, 3 Bl. 125, 148; see also Oliver v. Palmer, 11 G. & J. 426, 445. *Union Pass. R. Co. v. Mayor, &c, 71 Md. 238, 240-241; the statute at law is code, art. 75, sec. 94. 839 Miscellaneous proceedings. §738-740 covery only, 1 or for discovery and relief. 2 A bill of discovery, properly so called, never prays for relief; but prayers for relief may be united with the prayer for discovery. If the bill cannot be maintained for relief it cannot be continued for discovery only. 3 And a bill of discovery only may be so amended, after the defendant has answered, as to prayer for relief. 4 §739. When bill is maintainable ; frame thereof.— The bill can only be maintained by a person showing an inter- est in himself in the subject-matter off the suit; 1 and only against a person interested in the cause, as other persons may be examined as witnesses without the bill of discovery. 2 Dis- covery will not as a rule be compelled from any persons who can be made witnesses in the cause in aid of which discovery is sought. 3 The disclosure called for must be pertinent and material to the plaintiff's case, and necessary in order to enable him to recover. 4 The bill should so state the nature of the case as to enable the court to judge of the alleged liability of the de- fendant; 5 and should allege that the facts of which the discov- ery is sought, are indispensable as proof to the complainant, and that he is unable to prove them except by the answer of the defendant. 6 §740. Answer to the bill. — The answer need not be confined to the special matter in inquiry, but may set forth any iAs in Price v. Tyson, 3 Bl. 392, 397; Wolf v. Wolf, 2 H. & G. 382; Broadbent v. State, 7 Md. 416. In Adams v. Whiteford, 9 G. 501, a defendant in a case at law filed a bill for discovery against the plaintiffs, with a view to defence in the action at law, and for an injunction restraining proceedings at law until such discovery should be made. 2 As in Union Pass. R. Co. v. Mayor, &c, 71 Md. 238. 3 Reddington v. Lana'han, 59 Md. 429, 439-440; compare Taylor v. Ferguson, 4 H. & J. 46, S3- "Price v. Tyson, 3 Bl. 392, 400. [§739-] 1 Story, Eq. PI. sec. 318. 2Price v. Tyson, 3 Bl. 392, 397. 3 Reddington v. Lanahan, 59 Md. 429, 440. "Salmon v. Clagett, 3 Bl. 125, 1441 as where an executor was re- quired to say whether he had a sufficiency of assets to satisfy the plain- tiff's claim. sprice v. Tyson, 3 Bl. 392, 397. •Oliver v. Palmer, 11 G. & J. 426, 445- §740-741 Miscellaneous proceedings. 840 pertinent matter in avoidance; otherwise the plaintiff might restrict the answer to any such facts as suit his purpose, thus distorting the true facts of the case. 1 The discovery obtained from the answer is only available against the answering de- fendant, and the answer of one defendant cannot be read as evidence against any other defendant. 2 A defendant is not bound to make any discovery that would subject him to the punishment of the law by a criminal prosecution, or that would cause him to incur any pains, penalties or forfeitures. The defendant in such a case is not compelled to confess either the offence charged or any fact that may aid in the prosecution of it. But it must appear that his answer may subject him to punishment, or he will be compelled to make the discovery prayed. 3 Similarly a defendant is hot compelled to make discovery of his title to property except where a privity is shown to exist between the title of the plaintiff and the de- fendant; a party has no right to a discovery except of facts and deeds and writings necessary to his own title, or under which he claims, for he is not at liberty to pry into the title of the adverse party. 4 Whether or not a defendant may be com- pelled to answer the discovery prayed for, may be tested by de- murrer. 5 §741. Miscellaneous.— When a bill of discovery only is filed, the case terminates'with the answer; there being no hear- iPrice v. Tyson, 3 Bl. 392, 399-400. 2 Reddington v. Lanahan, 59 Md. 429, 440. In Turner v. Knell, 24 Md. 55, 60, it was said that the answer of a defendant to a bill of discovery, if responsive, is evidence for the de- fendant, unless overcome by the testimony of two witnesses or of one witness with corroborating circumstances; see ante, sec. 160. 3 Wolf v. Wolf, 2 H. & G. 382, 387-389; Salmon v. Clagett, 3 Bl. 125, 145; in the former case it is said that it must appear from the bill or the defendant's plea, that the answer may subject him to punishment. Compare Legoux v. Wante, 3 H. & J. 184, 185, in which a party was allowed not to answer an interrogatory in regard to usury, the admission of which might subject him to a forfeiture or fine; see also Broadbent v. State, 7 Md. 416, 427; Singery v. Attorney-General, 2 H. & J. 487, 497; Jordan v. Trumbo, 6 G. & J. 103, 106. *Cullison v. Bossom, 1 Md. Ch. 95, 96. B Dennison v. Yost, 61 Md. 139, 142. 841 Miscellaneous proceedings. §741, ing upon the merits, as where relief is asked. 1 Cross bills for discovery only are not allowed, but instead thereof, the de- fendant may file interrogatories to the plaintiff. 2 A petition for discovery may be filed during the pendency of a cause, where the bill asks for relief only, instead of amending the bill. 3 The relevancy, legality and competency of any testimony brought out by a bill of discovery can only be determined with propriety by the court of common law for whose use the discovery has been required. 4 The costs upon the bill of dis- covery may be taxed in the case at law as a part of the costs of that case. 5 1 Price v. Tyson, 3 Bl. 392, 397. 2 Equity rule 26; code, art. 16, sec. 144. 3 Eschbach v. Lightner, 31 Md. 528, 535; in this case a petition was filed for a discovery of the existence of certain books as. a foundation for an order to produce them, and the court required the discovery to tie made. *Price v. Tyson, 3 Bl. 392, 406. 5 Price v. Tyson, 3 Bl. 392, 406; and see page 407. See also upon certain other matters Taggart v. Boldin, 10 Md. 104, 114; Korns v. Shaffer, 27 Md. 83, 89; Diffenbach v. Vogeler, 61 Md. 370, 378; Harris v. Alcock, 10 G. & J. 226, 250; Boyd v. Boyd, 6 G. & J. 25, 34, Cross v. McCIenahan, 54 Md. 21. APPENDIX CONTAINING GENERAL EQUITY RULES INDEX TO GENERAL EQUITY RULES BALTIMORE CITY EQUITY RULES BALTIMORE COUNTY EQUITY RULES CECIL COUNTY EQUITY RULES FREDERICK COUNTY EQUITY RULES MONTGOMERY COUNTY EQUITY RULES GENERAL EQUITY RULES PROMULGATED BY THE COURT OK APPEALS on June 2ist, 1883. (See index to these rules, post p. 864.) Rule 1; code, art. 16, sec. 117; act of 1890, ch. 424. The circuit courts for the several counties of this State, and the circuit court of the city of Baltimore, and the circuit court number two of the city of Baltimore, as courts of equity, shall be deemed and taken to be always open for the transaction of business therein; and the several regular terms of said courts for the return of process and other practical purposes, shall be of two months' duration, and shall commence in the counties on the first Monday of January, of March, of May, of July, of September, and of November of each year; and in Baltimore city shall commence on the second Monday of January, of March, of May, of July, of September, and of November of each year. Rule 2; code, art. 16, sec. 118. The several clerks of said courts shall receive and file all pa- pers pertaining to said courts respectively, and shall keep sub- stantial dockets, and make all proper entries therein, of papers filed, and of the proceedings of the said courts, as they occur, so that the docket entries shall always show, as near as possible, the real condition and progress of the proceedings. Rule 3; code, art. 16, sec. 119. All original proceedings in said courts shall be commenced by bill, or by special case stated, as hereinafter provided for; the term "bill" to embrace petition or information, where, by statute, or the established practice, petition or information be proper. 841 General equity rules. 845 Rule 4; code, art. 16, sec. 120. No order or process shall be made or issued upon any bill, petition or other paper, until such bill, petition or other paper, together with all the exhibits referred to as parts thereof, be actually filed with the clerk of the court. Rule 5. The process and mode of publication for giving notice to ap- pear, and for procuring the appearance of parties, shall be the same as that now provided by law, except as the same may be changed or modified by the following rules : Rule 6; code, art. 16, sec. 121; act of 1890, ch. 424. All process, other than process to give notice to, or to pro- cure the appearance of defendants, shall be made returnable to the first day of the term ensuing the date of such process ; and all process that may be issued for the appearance of parties, or to compel appearances, shall be made returnable in the several counties on the first Monday of the month ensuing the date of its issue, and in Baltimore city shall be made returnable on the second Monday of the month ensuing the date of its issue, but the plaintiff may, by special direction, require any process to be made returnable at the return day, next after the first re- turn day, for such process ensuing the issuance of the same. Rule 7; code, art. 16, sec. 122. Whenever a bill or petition is filed, the clerk shall issue the process, or order of publication thereon, for the appearance of the defendants, as of course; and whenever there are more than one defendant, summons may, upon the special direction of the plaintiff, be sued out separately for each defendant, except in case of husband and wife, or a joint summons against all the defendants may be issued. Rule 8; code, art. 16, sec. 123. The service of process to require appearance shall be by read- ing the summons, or other writ or order, to the party to be served therewith; or by delivering a copy of the same to such party; and in case the party be an infant or rum compos mentis, in addition to the service on such party, a copy of the process or order shall be left with the parent or guardian of the infant, 846 General equity rules. if there be one within the jurisdiction of the court, and with the committee or other person having the care of the person or es- tate of the party alleged to be non compos mentis; and such service shall be specially certified in the return by the officer making the service. Rule 9; code, art. 16, sec. 124. Upon return of process as served, or upon proof of due pub- lication of the order of publication as against non-resident de- fendants, the court shall, in case of infant or non-sane defend- ants, on application of the plaintiff, or any other party con- cerned, by order, either require the legal guardian or commit- tee of the infant or non-sane defendant (if there be such guar- dian or committee within the jurisdiction of the court) to ap- pear, answer and defend for such party, or appoint a guardian ad litem to answer and defend the suit for such party; and in appointing guardians ad litem no person shall be appointed who may have any interest whatever involved in the suit ad- verse to that of the person so under disability. In any case where it may be deemed necessary, the court, or judge thereof, may appoint a solicitor to appear and defend for any infant or non-sane defendant. All commissions for taking answers or to plead shall be and they are hereby abolished. Rule 10; code, art. 16, sec. 125. All infants and other persons under any disability to sue, may sue by their guardian or committee, if any, or by their prochein ami; subject, however, to such orders as the court or judge thereof may direct for the protection of infants and other per- sons ; but before the name of any person shall be used in any suit to be instituted as next friend of any infant or other party, or as relator in any information, such person shall sign a writ- ten authority to the solicitor for that purpose, and such au- thority shall be filed with the bill or other proceeding. Rule 11; code, art. 16, sec. 126. Defendants shall have fifteen days from the time of the return of process served within which to enter an appearance, before they shall be treated as in default for non-appearance; and from the time of appearance entered, said defendants shall have General equity rules. 847 twenty days within which to answer. And it shall be the duty of tlje clerk, in all cases in entering the appearance of defend- ants, to note in the margin of the docket the time of such ap- pearance entered; and if the appearance be by solicitor, and there be more than one defendant, the clerk shall note for which defendant the appearance is entered, and the court or judge thereof may, for special reason shown, extend or enlarge the time to answer, according to the nature and circumstances of the case. Rule 12; code, art. 16, sec. 127. Upon services of process, or notice given by publication, as the case may be, the adult defendants, not being insane, shall appear and file their answer, plea or demurrer, to the bill or petition, within the time allowed by this article, or by the terms of the order of publication, or special order for the extension of time; and in default of appearance, or of answer, plea or de- murrer, after appearance within the time allowed, the plaintiff may, at his election, obtain an order as of course, that the bill be taken pro confesso as against such defendants ; and thereupon the cause shall be proceeded with ex parte as against the defend- ants so in default; and the matter of the bill or petition may be decreed by the court or judge thereof at any time after the lapse of thirty days from the date of the order pro confesso, if there be no answer, plea or demurrer interposed, and the allegations of the bill or petition present a proper case for relief. But the court or judge thereof may, in all such cases, if it be deemed proper, order that the allegations of the bill or petition, or any of them, be supported by affidavit or deposition to be taken as may be directed. Rule 13; code, art. 16, sec. 131. Every bill or petition shall be expressed in terms as brief and concise as it reasonably can be, and shall contain no unneces- sary recitals of documents of any kind, in hcec verba, nor any impertinent matter, or matter scandalous and not relevant to the suit; and the same rule shall apply to all answers and pleas filed by defendants; and if this rule be violated, the unneces- sary or improper matter or averments may be stricken but at the cost of the party introducing the same. 848 General equity rules. Rule 14; code, art. 16, sec. 132. All bills and petitions in the introductory part thereof shall contain the names of all parties, plaintiffs and defendants, by and against whorn the suit is brought. The form shall be sub- stantially as follows : In the Circuit Court for County. A B, Plaintiff, against C D, Defendant, To the Honorable the Judges of said Court: Your orator, complaining, says : 1. That, &c, making each paragraph contain a succinct but a complete statement of fact. Rule IS; code, art. 16, sec. 133. All bills and petitions shall be divided into paragraphs, as indicated in the preceding section, and be consecutively num- bered, and shall contain simply a statement of the facts upon which the plaintiff asks relief,, and at his option, the facts which are intended to avoid an anticipated defence, and such aver- ments as may be necessary, under the rules of equity pleading, to entitle the plaintiff to relief; and the prayer for relief shall specify particularly the relief desired, and shall also contain the prayer for general relief. And if an injunction, or other writ, or any special order, be required, pending the suit, it shall be specially prayed for; the several subjects of the prayer being formed into distinct paragraphs, and consecutively numbered. The ordinary or formal combination clause, the allegation of the want of remedy at law, and similar formal averments, shall be omitted; nor shall it be necessary to pray that the defendants be required to answer, unless it be desired that they shall an- swer under oath, or there be special interrogatories appended to the bill to be answered by the defendants, or some of them, in which cases there shall be a prayer that the defendant or defendants be required to answer the bill, or the special inter- rogatories appended thereto, under oath. Rule 16; code, art. 16, sec. 134. The prayer for process or for order of publication shall con- tain the names of all the defendants named in the introductory General equity rules. 849 part of the bill or petition, and the place of their residence, as far as known; and if any of said defendants are known to be in- fants under age, or under any other disability, such fact shall be stated, so that the court may take order thereon, as justice may require. And if an injunction, or other writ, or any spe- cial order be asked in the prayer for relief, that shall be suffi- cient, without repeating the same in the prayer for process. Rule 17; code, art. 16, sec. 135. At any time before the bill is taken pro confesso, or afterwards (before final decree), by the special leave of the court or judge thereof, the defendant may answer, plead or demur to the bill; and he may plead or demur to the whole bill, or to part thereof, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud, usury or combination, a plea to such part must be accom- panied with an answer supporting the plea, and explicitly deny- ing the fraud, usury or combination, and the facts on which the charge is founded. Rule 18; code, art. 16, sec. 136. No plea or demurrer shall be allowed to be filed to any bill or petition, unless it be supported by affidavit that it is not in- tended for delay; and if a plea, that it is true in point of fact. The form of demurrers shall be substantially as follows : "The defendant demurs to the whole bill," or "to so much of the bill, or discovery, or relief," stating the particular part or parts demurred to, and the special grounds of the demurrer. Rule 19; code, art. 16, sec. 137. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to be available, but no further. Rule 20; code, art. 16, sec. 138. If the plaintiff shall not reply to any plea filed, or shall not set down any plea or demurrer for argument, within ten days after the same filed, the defendant may set it down for argument on five days' notice. 54 850 General equity rules. Rule 21 ; code, art. 16, sec. 139. If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem to be reasonable. Rule 22; code, art. 16, sec. 140. If, upon the hearing, any demurrer or plea is overruled, un- less the court or judge thereof hearing the same be satisfied that it was intended for vexation and delay, the defendant shall be required to answer the bill, or so much thereof as may be cov- ered by the plea or demurrer, at such time as, consistently with justice and the rights of the defendant, the same can be reason- ably done; in default whereof, the bill shall be taken, as against him, pro confesso, and the matter thereof proceeded in and de- creed accordingly; and such decree shall also be made when the court or judge thereof shall be satisfied that the plea or de- murrer was interposed for vexation or delay merely, and is frivolous or unfounded. Rule 23; code, art. 16, sec. 142. The defendant shall make answer to all the material allega- tions of the bill, except as hereinafter provided; and the answer shall be divided into paragraphs, numbered consecutively, each paragraph containing, as near as may be, a separate and dis- tinct averment. The rule, that if the defendant submits to an- swer, he shall answer fully to all the matters of the bill, shall not apply in cases where he might, by plea or demurrer, protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by answer, to insist upon all mat- ters of defence in law or equity, to the merits of the bill, of which he may be entitled to avail himself by a demurrer, or plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover, upon filing a demurrer or plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser, for a valuable consideration, without notice, may set up the defence by way of answer, in- stead of plea, and shall be entitled to the same protection, and General equity rules. ' 851 shall not be compellable to make any further answer or discov- ery of his title than he would be required to make in an answer in support of such plea. Rule 24; code, art. 16, sec. 143. Special interrogatories to the defendant shall not be incorpo- rated in the bill or petition, but shall be appended thereto ; and they shall be divided as conveniently as may be, and numbered consecutively. And if there be more than one defendant, and the interrogatories are not intended to be answered by all, it shall be designated which defendant is required to answer the several interrogatories. And in like manner and form, any de- fendant shall be entitled to file interrogatories to any of the plaintiffs, after he shall have put in his answer to the bill; and such interrogatories, either to plaintiff or defendant, and the an- swers thereto, shall be deemed part of the pleadings in the cause. Notice by service of copy, or otherwise, shall be given to the party required to answer, who shall answer within thirty days from the time of service, unless the time, for cause shown, be extended by special order; and answers to such interroga- tories may be compelled by attachment. Rule 25 ; code, art. 16, sec 144. But either plaintiff or defendant shall be at liberty to decline answering any interrogatory, or part of any interrogatory, when he might have protected himself by demurrer from answering the subject of the interrogatory; and he shall be at liberty so to decline, notwithstanding he shall answer other interrogator- ies, from which he might have protected himself by demurrer; and upon such declination, the plaintiff or defendant may, on three days' notice, set down the matter for hearing before the court or judge thereof, as on an exception to the answer for in- sufficiency. But where the interrogatories are not fully an- swered, and no reason is assigned for the omission, the particu- lar objection must be pointed out by exception, to be filed and served at least five days before the hearing of such exception. The plaintiff or defendant shall be at liberty, before answers to the interrogatories are filed, or pending exceptions, to file or require a replication, and proceed to take testimony, without waiver of his right to such answers, or of his exceptions to the answers. 852 General equity rules. Rule 26; code, art. 16, sec. 145. Cross-bills for discovery only shall not be allowed, but the defendant shall be at liberty, instead thereof, to file interroga- tories to the plaintiff, as provided in the preceding section. In other cross-bills, no other reference shall be made to the matters contained in the original bill than shall be necessary, but the same may be treated as if incorporated therein. The rules regulating the form of bills shall apply to cross-bills. If no new parties are introduced, service of a copy of the cross-bill on the solicitor of the plaintiff or plaintiffs in the original bill shall be sufficient. But where other persons are made parties, the ser- vice or notification shall be the same as provided in respect to notice, or service of process upon defendants in original bills, together with the cross-bill. Rule 27; code, art. 16, sec. 147. If the plaintiff in his bill shall not require an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and an- swer only; but an answer under oath may, nevertheless, be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, to appoint or dis- charge a receiver, or on any other incidental motion in the cause. Rule 28; code, art. 16, sec. 148. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto within fifteen days thereafter, unless he shall set the cause down for hearing on bill and answer as to said defendant or defendants answering; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed, the defendant shall be entitled to a rule fur- ther proceedings within ten days after notice of such rule ; and upon failure to comply with such rule, the defendant shall be General equity rules. 853 entitled to have the bill dismissed. The form of the general replication shall be as follows: "The plaintiff joins issue on the matters alleged in the answer of C D, so far as the same may be taken to deny or avoid the allegations of the bill." Rule 29; code, art. 16, sec. 149. No special replication to any answer shall be filed. But, if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may obtain leave to amend the same, upon application to the court or judge thereof, within such time and upon such terms as may be prescribed by order. Rule 30; code, art. 16, sec. 150. If the plaintiff, so obtaining any order to amend his bill after answer, or after plea or demurrer thereto, shall not make the amendment within the time allowed, he shall be considered to have abandoned the leave to amend, and the cause shall pro- ceed as if no application for such leave had been made. But where such amendment is made, and new facts are introduced, and the case is thus varied in any material respect, the defendant shall be at liberty to answer anew, or to plead, or demur to the bill as amended, within such time as the court or judge thereof may prescribe, after notice of the amendment made; and notice may, in all cases, be given by service of a copy of the bill as amended upon the defendant, or upon his solicitor, if there be one; or it may be by subpoena. The mode of proceeding in default of answer to the matter of the amendment shall be the same as that in default of answer to the original bill ; and the proceeding on answer, plea or demurrer, filed to the amended bill, shall be the same as that on answer, plea, or demurrer to an original bill. Rule 31; code, art. 16, sec. 159. In all cases where the plaintiff may have a joint and several claim or demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such claim or demand, all the per- sons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable; but the defendant may at once proceed by petition in the nature of a cross-bill, against such party as is liable jointly with him, and such party shall b; 854 General equity rules. permitted to make himself a party to the original cause, and defend the same, and the proceedings in the original cause shall, after the service of such petition, be conclusive as to such other party, and if he shall appear thereto, the same shall be conducted as if he had been made a party thereto in the first instance. Rule 32; code, art. 16, sec. 160. In all suits concerning real or personal estate, where the en- tire estate sought to be affected by the decree or order prayed for, is vested in trustees, under any deed, will, or other instru- ment, with an immediate and unqualified power of sale, coupled with the right to give receipts, such trustees shall represent the persons beneficially interested under the trust, in the same man- ner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons benefi- cially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interest- ed under the trust, parties to the suit. But any party interested may, upon his own application, be allowed to come in and be made a party to such proceeding, and the court or judge thereof may, upon consideration of the matter on the hearing, if it should be deemed proper, order such persons, or any of them, to be made parties. Rule 33; code, art. 16, sec. 161. It shall not be necessary to dismiss the entire bill or petition in any suit, because simply of the misjoinder of parties or the subject-matter of the suit; but the court may dismiss the bill or petition, as to such of the parties, plaintiff or defendant, as may be improperjy joined, and may dismiss the bill or peti- tion as to such of the subject-matter as may be improperly joined or included therein, so as to relieve the bill or petition of the objection of being multifarious. And the court may, according to the special circumstances of the case, to meet the requirements of justice, and to prevent a multiplicity of suits, decree as between the plaintiffs, as if they occupied positions of plaintiff and defendant upon the record, and may so decree as between co-defendants to the cause; provided such decrees shall be founded upon the allegations of the pleading between the plaintiffs and defendants, and have immediate connection with the subject-matter of the suit. General equity rules. 855 Rule 34; code, "art. 16; sec. 162. If a defendant shall, at the hearing of the cause, object that the suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court or judge thereof, if it be deemed proper, shall be at liberty to make a decree, saving the rights of the absent parties, or may require the plaintiff to bring in such absent party, upon such terms as the court may prescribe as to costs. Rule 35; code, art. 16, sec. 163. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at lib- erty within fifteen days after answer filed, to set down the cause for argument upon that objection only; and the clerk, at the instance of the plaintiff, shall make entry thereof in his docket in the following form: "Set down upon the*defendant's objection for want of parties." And if the plaintiff shall not set down the cause, but shall proceed therewith to a hearing, not- withstanding the objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the' defend- ant's objection for want of parties be then allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties; but the court or judge thereof may, if it be thought fit, dismiss the bill. If, however, the cause be set down upon the objection taken, and, upon hearing, the objection be allowed, the plaintiff shall have liberty to amend, upon paying the cost of amendment. Rule 36; code, art. 16, sec. 216. Except where testimony is to be taken beyond the limits of the State, or beyond the limits of the county or city for which the court exercises jurisdiction, no commissions to take testi- mony shall issue. The circuit court for each of the counties, and the supreme bench of Baltimore city shall each appoint two or three experienced and competent examiners, who shall, upon qualification, be officers of the court; and for any special reason, a special examiner may be appointed. These examin- ers shall have authority to issue subpoenas for witnesses, ad- minister oaths, notify parties of the time of their sittings, and to preserve order and decorum during their sessions. Any 856 General equity rules. person refusing to obey subpoenas issued by such examiners, or who shall be guilty of violating the order and proper de- corum of the sessions of said examiners while in discharge of their duties, shall be reported by the examiners, together with the facts of the case, to the court; and, upon hearing, the court, if satisfied of the facts as reported, and that the party was guilty of the matter charged, shall punish the party so offending. Such examiners shall be entitled to receive four dollars per day, for each and every day actually. employed; to be paid by the party at whose instance the service may have been rendered. And it shall be the duty of such examiners, in making their re- turns to the cpurt, in each case, to certify the time that they have been actually employed, and at whose instance, and the amount taxable to each party for services rendered. Rule 37; code, art. 16, sec. 217. Whenever any cause is at issue, involving matter of fact, or whenever any evidence is required to be taken, to be used in any proceeding in equity, it shall be competent to the party de- siring to take evidence, by leave of the court, or judge thereof, to notify one of the regular examiners, or any special exam- iner that may be appointed, of such desire, and to furnish him with the titling of the cause and the names' of witnesses to be summoned to testify; and the examiners so applied to shall fix some reasonable day or days for the examination of wit- nesses, and the taking of evidence, of which he shall give due notice to the parties concerned, or those entitled to receive such notice, as if he were proceeding under a commission to take testimony, under former practice. He shall issue sub- poenas for witnesses for either party, except where he is re- quired to proceed ex parte; and he shall cause to come before him all witnesses subpoenaed, at the time appointed, to be ex- amined; and their attendance and duty to testify may be en- forced by attachment, to be issued and returned as provided in section 232. Rule 38; code, art. 16, sec. 218; order of June 19, 1896. All examinations of witnesses before the examiners shall be conducted in the presence of the parties, or their solicitors, if they think proper to be present; and the mode of examination General equity rules. 857 shall be either by written interrogatories filed with the exam- iner, to be by him propounded to the witnesses, and the an- swers thereto written down by him, as has heretofore been the practice of commissioners in taking testimony; or the witnesses may be examined by the parties, or their solicitors, viva voce; and in such case, the answers of the witnesses shall be reduced to writing by the examiner, and the questions also, if necessary to the understanding of the answers of the witness, or if it be required by either party. The testimony produced by both parties shall be taken before the same examiner, unless, for spe- cial reasons, it be otherwise directed by the court or judge thereof; and all viva voce examinations shall, as near as may be, be conducted in the manner and order of the examination of witnesses in the trials of fact in the courts»of common law. The defendant shall not be compelled to proceed with the taking of his testimony, until the plaintiff has finished, or declared he has none to take; nor shall the plaintiff be compelled to proceed with the rebutting testimony, until the defendant has completed the testimony on his part. But said questions and answers may be typewritten. Rule 39; code, art. 16, sec. 219. In all examinations, whether conducted by written interroga- tories or viva voce, at the conclusion of the examination by the parties, the examiner shall put to the witness an interrogatory in the following form : "Do you ,know, or can you state, any other matter or thing which may be of benefit or advantage to the parties to this, cause, or either of them, or that may be material to the subject of this your examination, or the mat- ters in question between the parties? If yea, state the same fully and at large in your answer." And the examiner shall write down the answer to said interrogatory, as part of the deposition of the witness. Rule 40; code, art. 16, sec. 220. In all cases the testimony shall be written down in the lan- guage of, and as delivered by, the witness, and when completed shall be read over to the witness, and be signed by him in the presence of the parties or their solicitors, or such of them as may attend; but if the witness, for any cause, may not be able to sign the same, or shall for any reason refuse so to do, the ex- 858 General equity rules. , aminer shall sign the deposition, stating the reason why the wit- ness has not signed the same; and the examiner may, upon all examinations, state any special matters to the court that he may deem proper, to enable the court the better to understand the evidence. Any question or questions that may be objected to by either of the parties, shall be noted by the examiner upon the deposition; but he shall not have power to decide on the competency, materiality or relevancy of any question proposed or evidence elicited, nor as to the competency or privilege of any witness offered. All questions of privilege raised, or de- murrer interposed, by any witness, to questions propounded, shall be at once reported by the examiner to the court or judge thereof for decision, and the court or judge shallhear and de- termine the same without delay; and in such cases the court may award cost as justice may appear to require; and in all cases the court shall have full power to deal with and to direct the payment of the cost of incompetent, immaterial, or irrele- vant evidence, or any part thereof, as justice may require, apart from the general cost of the case. Rule 41; code, art. 16, sec. 221. So soon as the examination of witnesses before the examiner shall be concluded, the original depositions, with all vouchers, documents, or other papers filed with the examiner as evidence,, shall be put together in proper order and form, so as to be con- venient for reference and use, and be authenticated by certifi- cate and signature of the examiner, and by him enclosed, with the titling of the cause endorsed thereby and filed with the clerk of the court, without delay. Rule 42; code, art. 16, sec. 222. Testimony shall be taken without any unnecessary delay, and it shall be the duty of the examiner to avoid such delay as far as possible. After the lapse of a reasonable time for the taking of testimony, either party may obtain a rule on the ad- verse party to close the taking of his testimony within such reasonable time after notice of such rule as may be deemed proper; and any testimony taken after the lapse of that time shall not be read in evidence at the hearing of the cause. But it shall be in the discretion of the court to enlarge the time, on application of the party against whom such rule may have been obtained, upon sufficient cause shown. General equity rules. 859 Rule 43; code, art. 16, sec. 223. Evidence taken and returned shall be opened by the clerk, and shall remain in court ten days, subject to exception, before the casse shall be taken up for hearing, unless, by agreement of the parties, such time be waived; but after the expiration of that time the cause shall stand for hearing, unless some suffi- cient cause be shown to the contrary. This section not to ap- ply to interlocutory applications. Rule 44; code, art. 16, sec. 224. The examination of witnesses de bene esse, or for the perpet- uation of their testimony, when by law allowed, may be had before an examiner, in the mode and form as prescribed in sections 218, 219, 220 and 221; and if no good objection be made to such testimony in twelve months from the time of the return to court thereof, the court shall order the same to be re- corded in perpetual memory. Rule 45; code, art. 16, sec. 225; act of 1890, ch. 86; act of 1896, ch. 35. The court shall, on application of a party in interest, or may, of its own motion, order, that instead of the mode of taking testimony as provided in the foregoing sections, the witnesses, or any of them, shall be examined orally in open court in the presence of the judge or judges thereof, as to all or any of the facts or matters relevant in the cause or proceeding, and the evidence so taken shall be written down as delivered by the witnesses by such person, and in such manner as the court may have by special order or general rule directed, and when so written down, shall, with such documentary proof as shall have been with it offered and admitted, be filed as part of the proceedings, to be used as if taken before an examiner; or if the court shall have so ordered, such evidence shall be reduced to writing by counsel in the same manner as bills of exception now are at common law, and after the same shall have been signed by the judge or judges before whom the testimony was taken, shall, with the documentary proof at the same time of- fered and admitted, be filed as part of the proceedings to be used as if taken before an examiner. Rule 46; code, art. 16, sec. 226. Upon any petition, motion, or other interlocutory applica- 860 General equity rules. tion, for the hearing and determination of which evidence may be required, the court or judge thereof may order testimony to be taken before an examiner, or before a justice of the peace, upon such notice, and in such manner as the court or judge may think proper to direct, to be used at the hearing of such matter. Rule 47; code, art. 16, sec. 184. Any person interested, or claiming to be interested, in any question cognizable by a court of equity, as to the construction of any statute, deed, will, or other instrument of writing, or as to any other matter falling within the original jurisdiction of such court, or made subject to the jurisdiction thereof by stat- ute, may state and raise such question before the court in the form of a special case stated, instead of formal pleading. Every such special case stated shall be entitled as a cause be- tween some one or. more of the parties interested, or claiming to be interested, as plaintiff or plaintiffs, and the others of them as defendants; and such special case shall be regularly docketed as a cause pending in said court, and shall be in all respects, and for all purposes, treated and regarded as a pend- ing cause, as if regularly instituted by formal pleading. Rule 48; code, art. 16, sec. 185. Such special case shall concisely state such facts and docu- ments as may be necessary to enable the court to decide the question intended to be raised, and it shall be divided into para- graphs, consecutively numbered; and upon the hearing of such case, the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated and re- ferred to in such special case, any inference which the court might have drawn therefrom, if such facts and documents were proved under formal pleading. And upon such special case stated, the court may decree as upon bill and answer, and such decree shall be enforced as other decrees are; but such decree shall in no case conclude or affect the rights of any other per- sons than those who are parties to such special case, and those claiming under or through such parties; and the right of ap- peal shall exist as in cases of decrees upon bill and answer. General equity rules. 861 Rule 49; code, art. 16, sec. 186. Married women may join in any special case stated with their husbands, and infants having guardians, and lunatics having committees, may join in such special case by their guardians or committees, in respect to any interest or right represented by such guardians or committees; and all the parties to such spe- cial case shall sign the same in person or by solicitor, and the appearance of the parties shall be entered to said case, as to a cause regularly instituted by formal proceedings; and all the parties to such special case shall be subject to the jurisdiction of the court in the same manner as if the plaintiff in the special case had filed a bill against the parties named as defendants thereto, and such defendants had appeared to such bill, and by answer admitted the facts thereof. Rule 50; code, art. 16, sec. 164. All final decrees, and orders in the nature of final decrees, shall be considered as enrolled from and after the expiration of thirty days from the date of the same, the day of the date in- clusive. Rule 51; code, art. 16, sec. 165. Clerical mistakes in decrees or decretal orders, or errors aris- ing from any accidental slip or omission, may, at any time be- fore the enrolment of such decrees or orders, be corrected by order of the court or judge thereofupon petition, without the form or expense of a rehearing. Rule 52; code, art. 16, sec. 166. Every petition for rehearing shall contain the special matter or cause on which such rehearing is applied for, and shall be signed by solicitor or the petitioner himself, and the facts there- in stated if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehearing shall be granted after the enrolment of the decree or decretal or- der; and if the decree or order has been executed, parties who have acted on the faith of such decree or order shall not be prejudiced by such decree or order being reversed or varied. Rule S3; code, art. 16, sec. 20. Whenever a reference of any matter is made to the auditor for examination and report thereof, or for the statement of an 862 General equity rules. account, the party at whose instance the reference is made, shall, within a reasonable time, and without any unnecessary delay, cause the matter of reference to be laid before the auditor for his action; and if such party shall omit to do so,, any other party interested in the subject-matter of the reference shall be at liberty to cause the matter to be laid before the au- ditor, who shall proceed therein without delay. Rule 54; code, art. 16, sec. 21. Upon every such reference it shall be the duty of the auditor, as soon as he reasonably can, after the matter of the reference is brought before him, if evidence is to be produced, or vouch- ers filed, to assign a time and place for proceeding in the matter, and to give notice thereof to the parties or their solicitors ; and if either party shall fail to attend at the time and place appointed the auditor shall be at liberty to proceed in the absence of such party, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice thereof to the parties or their solicitors, but noting all the cost that may at- tend such adjournment, which shall be subject to the order and direction of the court. It shall be the duty of the auditor to proceed with all reasonable diligence in every such reference, and with the least practicable delay; and either party shall be at liberty to apply to the court or judge thereof for an order to the auditor to speed the proceedings before him, and to make his report, and to certify to the court the reasons for any delay that may have occurred. Rule 55; code, art. 16, sec. 22. The auditor shall regulate all the proceedings in every hear- ing or examination before him; and in addition to his right and power to examine the parties to the cause, and all wit-, nesses produced by them, or which they may cause to be sum- moned, on oath or affirmation touching the matters of the reference, he shall also 'have power and authority to require the production of all books, papers, writings, vouchers and other documents applicable thereto, where, by the principles and practice of courts of equity, the production of such writings may be compelled; and if any party so liable to produce such books, papers, writings, vouchers or other documents, shall fail or refuse so to do, when required by the auditor, such party General equity rules. 863 shall, without delay, be reported to the court by the auditor, with the facts of the case, that the proper proceeding may be taken thereon, by way of attachment or otherwise, as justice and the settled practice may require. Rule 56; code, art. 16, sec. 23. All parties accounting before the auditor shall produce their respective accounts in the form of debtor and creditor, and any of the other parties interested, who shall not be satisfied with the account so produced, shall be at liberty to examine the accounting party, viva voce, or upon written interrogatories, before the auditor, who shall write down and report the testi- mony, if required. And in all cases where the auditor may be required to take testimony to be reported to the court, he shall observe and pursue the same mode and form of examina- tion, and writing down the testimony, as that prescribed to be observed by examiners. Rule 57- The foregoing rules shall be in force from and after the first day of September, A. D. 1883, and shall be taken to regulate all cases and procedure to which they are applicable; and all other cases and procedure not therein provided for shall re- main to be regulated and governed by the existing statute law of the State, and by the general rules and principles of equity pleading and practice, as heretofore existing, so far as the same may not be changed or modified by the adoption of the foregoing rules. But nothing in the foregoing rules shall, in any manner, be taken or construed to prevent or restrict the several circuit courts, as courts of equity, from making and en- forcing, from time to time, such general rules and orders as they may deem proper for the good government and regu- lation of their respective courts and the proceedings thereof, and the officers and suitors therein; provided that such rules and orders be not inconsistent with the foregoing rules, or the statutes of this State. INDEX TO THE GENERAL EQUITY RULES. [Figures refer to the numbers of the rules.] ACCOUNT In form of debtor and creditor before auditor, 56 AMENDMENT OF BILL. Upon allowance of demurrer or plea, 21 For matter alleged in answer, 29 Failure to amend, as abandonment of leave, 30 Proceedings upon, 30 Upon objection for want of parties, 35 ANSWER. To be filed within twenty days from time of appearance entered, 11-12 Court may extend time to, 11-12 Improper matter in, 13 Before or after bill taken pro confesso — before final decree, 17 To part of bill, 17 Supporting plea, 17 When defendant to, after plea or demurrer overruled, 22 To all material allegations, except, &c, 23 To be divided into paragraphs consecutively numbered, 23 Rule as to answering fully, where does not apply, 23 May contain all matters of defence to merits, 23 What need not contain by way of discovery, 23 Defence of bona fide purchase, 23 To special interrogatories, how compelled, 24 Under oath, when to be evidence in defendant's favor, 27 Under oath, when may be used as affidavit, 27 To amended bill, 30 APPEARANCE. Service of process for, 8 Defendants to enter within fifteen days from return of process, 11-12 Time of, to be entered on docket, 11 When by solicitor, and there be more than one defendant, 11 ATTACHMENT. Answers to interrogatories may be compelled by, 24 Against witnesses, 37 In cases before the auditor, 55 864 Index to the general equity rules. 865 [Figures refer to the numbers of the rules.] AUDITOR. See in general rules, 53-56 Matter of reference to he laid before, 53 Who may lay matter before, 53 To proceed without delay, 53-54 To assign time and place for proceeding, 54 To give notice to parties, 54 How to proceed when parties do not attend, 54 Order on, to speed proceedings, 54 To regulate proceedings, 55 May examine parties and require production of books, &c, 5^ To report refusal of parties to produce books, &c, 55 Parties accounting before, how to produce accounts, 56 Accounting party may be examined by party, 56 To pursue same method as examiners in taking testimony, 56 BILL. See also "Prayers." Original proceedings commenced by, 3 What the term to include, 3 To be filed before issue of process, 4 When to be taken pro confesso, 12 How to be expressed, 13 Unnecessary recitals, impertinent matter, &c, in, 13 Introductory part of, to contain names of all parties, 14 Form of, 14 To be divided into numbered paragraphs, 14-15 Prayer for answer, prayer for general relief, 15 Certain formal averments to be omitted, 15 Amendment of, when allowed, 21 Special interrogatories to be appended to, 24 Dismissal under rule further proceedings, 28 Amendment of, 29 Multifariousness in, 33 Amended, by adding parties, 35 CLERICAL MISTAKES. How corrected before enrolment, 51 CLERKS OF COURT. To receive and file papers, 2 To keep substantial dockets and make entries therein, 2 To issue process as of course whenever bill or petition is filed, 7 To enter date of defendant's appearance, 11 To open testimony taken by examiners, 43 COMMISSIONS. To take answer or to plead, abolished, o To take testimony, when to issue, 36 55 866 Index to the general equity rules. [Figures refer to the numbers of the rules.] COSTS. i Of taking testimony, to be certified by examiners, 36 To be awarded by court in questions of privilege, &c, 40 j COURTS OF EQUITY. 1 Always open for business, 1 Terms of, in counties and Baltimore city, 1 Original proceedings in, how commenced, 3 CROSS-BILL. For discovery only, not allowed, 26 What to contain, form of, 26 Service of when no new parties are made or otherwise, 26 In case of proceedings against one of several persons jointly lia- ble, 31 DE BENE ESSE. How examinations may be had, 44 DECREES. When to be passed after order pro confesso, 12 As between co-plaintiffs and co-defendants, proviso, 33 Saving the rights of absent parties, 34 Enrolled after thirty days from date, 50 Correction of clerical mistakes in, 51 Parties acting on faith of, not to be prejudiced in certain cases, 52 DEFENDANTS. When in default for non-appearance, 11 Names of to be stated in bill and prayer for process, &c, 16 Decree between co-defendants — proviso, 33 DEMURRER. When to be filed, 12 May be filed to whole or part of bill, 17 *■_ Affidavit that it is not for delay, 18 Form of— special grounds of to be stated, 18 j Setting down for argument, 19-20 t , If allowed, amendment of bill, 21 If overruled, defendant to answer, 22 .;-, •• To amended bill, 30 Interposed by witness, to be reported to court, 40 ' DISABILITY. How persons under, may sue, 10 Fact of to be stated, 16 DISCOVERY. In answer, 23 1 Index to the general equity rules. 867 [Figures reier to the numbers of the rules.] * DOCKETS. Clerks to keep substantial, 2 To show real condition and progress of proceedings, 2 ENROLMENT. What considered, of decrees and orders, 50 EQUITY RULES. When in force, 57 Effect of, 57 EVIDENCE. See also "Examiners" and "Testimony." See in general rules 36-46 When answer under oath to be, 27 When may be taken, 37 How taken by examiners, 38 Order of taking, 38 To be written down, and signed by witness or examiner, 40 Court's power to award costs of certain, 40 How returned, 41 To be returned without delay, 41 To be taken without delay, 42 1 Rule to close taking of, 42 To be opened by clerk, 43 To lie ten days subject to exception; waiver, 43 De bene esse, and perpetuation of, 44 On interlocutory application, how taken, 46 Taken by auditor, 56 > EXAMINERS. See also "Evidence" and "Testimony." See in general rules 36-42, 46 To be appointed by court — officers of court, 36 Special examiner may be appointed, 36 Authority and duties of, 36 Pay of; certificate of costs, &c, 36 To be notified when evidence is required, 37 To fix day for taking evidence and give notice thereof, 37 To issue subpoenas, 37 To put concluding interrogatory to witness, 39 May state special matter to court, 40 To note objections by parties to questions, 40 No power to decide any matter as to evidence or witnesses, &c, 40 To report questions of privilege raised, or demurrer interposed, 40 To return testimony without delay, 41 To avoid delay in taking testimony, 42 To take testimony upon interlocutory application, 46 868 Index to the general equity rules. [Figures refer to the numbers of the rules.] EXCEPTIONS. To evidence to be noted by examiners, 40 To evidence after return, when to be taken, 43 EXHIBITS. To be filed with bill before issue of process, 4 FORM. Of bill, 14-15 Of demurrer, 18 Of replication, 28 Of account produced before auditor, 56 GUARDIAN AD LITEM. Appointed for non-sane persons and infants, 9 Who not to be appointed as, 9 HEARING. Upon defendant's objection for want of parties, 34-35 Cause to be taken up for, after certain period, 43 HUSBAND AND WIFE. Summons for, 7 INFANTS. Service of process on, 8 Solicitor may be appointed for, 9 Legal guardian or guardian ad litem to answer for, 9 Fact of infancy to be stated, 16 Commissions to take answer of, abolished, 9 May sue by guardian or next friend, 10 May join in special case stated, 49 INFORMATION. Included in term "bill," 3 Written authority for use of name as relator, 10 INJUNCTION. To be prayed for specially, 15 Prayer for not to be stated in prayer for process, 16 INTERLOCUTORY APPLICATION. Testimony taken on need not lie in court ten days, 43 How testimony taken on, 46 INTERROGATORIES. In general — by plaintiff or defendant — see in full, 24-25 Instead of cross-bill for discovery, 26 Concluding, to witness, 39 Index to the general equity rules. 869 [Figures refer to the numbers of the rules.] JUSTICE OF THE PEACE. Testimony may be taken before, 46 LUNATICS. Service of process on — copy of process, 8 Solicitor may be appointed for, 9 Committee to answer for, 9 May join in special case stated, 49 MISJOINDER. Of parties or subject-matter, 33 MISTAKES. Clerical, how corrected, 51 MULTIFARIOUSNESS. For misjoinder of parties or subject-matter, 33 NEXT FRIEND. Infants and other persons under disability may sue by, 10 Written authority before name of person to be used as, 10 ORDERS. When to be made, 3 When certain ones considered as enrolled, 50 ORDERS, SPECIAL. To be specially prayed for in bill or petition, 15 Prayer for, not to be repeated in prayer for process, 16 PARTIES. See in full rules 31-35 Names of all to be in introductory part of bill, 14 Where cross-bill makes new, 26 One or more of several principals or sureties may be proceeded against, 31 How others, jointly liable, may be made, 31 Representation by trustees in trust estates, 32 Persons interested in trust estates may intervene, 32 Misjoinder of, bill may be dismissed as to improper parties, 33 Decree as between — co-plaintiffs and co-defendants — proviso, 33 Defect for want of, how cured at the hearing, 34 Objection for want of, at the hearing, 34 Rights of absent, saved at the hearing, 34 Suggestion of want of by the answer, 35 Hearing upon objection for want of, 35 Bill amended by adding new parties, 35 870 Index to the general equity rules. [Figures refer to the numbers of the rules.] PERPETUATION OF TESTIMONY. Examination of witnesses for, 44 PETITION See also "Bill" upon various points. Included in the term "bill," 3 When may be taken pro confesso, 12 In nature of cross-bill against joint party, 31 Interlocutory, how testimony taken on, 46 For rehearing, 52 Plaintiffs — decree between co-plaintiffs — proviso, 33 PLEA. When to be filed, 12 Improper matter in, 13 When bill charges fraud, &c, answer to accompany, 17 To whole or part of bill, 17 Affidavit that it is not for delay, 18 Affidavit to truth, 18 Setting down for argument, 19-20 Issue on — how far facts avail defendant if determined in his fa- vor, 19 If plea allowed, amendment of bill, 21 If overruled, defendant to answer, 22 To amended bill, 30 PRAYERS. To specify the particular relief, 15 For general relief, 15 For injunction, 15 For other writ or special order, 15 Subject of, to be paragraphed and numbered, 15 For defendant to answer, 15 For process, what to contain, 16 PRIVILEGE. Questions of, to be reported to court by examiners, 40 PROCEEDINGS. Original, how commenced, 3 PROCESS. When to be issued, 4-7 When returnable, 1-6 Plaintiff may give special directions, 6 Not to issue until bill and exhibits filed, 4 How regulated, 5 To compel appearance, when returnable, 6 May be made returnable to second return day, 6 Index to the general equity rules. 871 [Figures refer to the numbers of the rules.] PROCESS— Continued. For appearance, as of course, 7 Service of, 8 PRO CONFESSO. When order may be passed, 12-22 When decree may be passed on bill taken, 12 Testimony to support allegations of bill, 12 Pleading by defendant after, 17 Bill to be taken when demurrer or plea filed for certain purposes, 23 PUBLICATION. Mode of, 5 Issued by clerk as of course, 7 Proceedings upon proof of, 9-12 Prayer for process of, what to contain, 16 In cross-bill, 26 REHEARING. What petition for, to contain; signature; affidavit, 52 Not to be granted after enrolment of decree, 52 When parties not to be prejudiced by, 52 REPLICATION. When interrogatories are filed, 25 When to be filed, 28 Cause at issue upon filing, 28 Form of, 28 Special not to be filed, 29 RULE FURTHER PROCEEDINGS. Defendant entitled to upon failure to duly file replication, 28 RULE TO CLOSE TAKING OF TESTIMONY. 42 RULES OF COURT. Power of courts to make, 57 SCANDAL AND IMPERTINENCE. In bills, petitions, answers and pleas, 13 SERVICE OF PROCESS. How made, 8 Of cross-bills, 26 Of interrogatories, 24 SOLICITOR. May be appointed by court for infants or non-sane defendants, 9 Should have written authority to use name of next friend or rela« tor, 10 872 Index to the general equity rules. [Figures refer to the numbers of the rules.] SPECIAL CASE STATED. ,"'■: See in full, 47-49 Original proceedings commenced by, 3 SUMMONS. When separate for each defendant may issue, 7 For husband and wife, 7 Joint, for all defendants, 7 TESTIMONY See also "Evidence" and "Examiners" Where interrogatories are filed, 25 How to be written down and signed by witness and examiner, 40 To be returned without delay, 41 To be taken without unnecessary delay, 42 Rule to close taking of, 42 Oral testimony in open court — procedure, 45 How taken on interlocutory application, 46 How taken by auditor, 56 TRUSTEE. To represent all parties in trust estates in certain cases, 32 WITNESSES. Refused to obey subpoena, 36 Questions of privilege or demurrer by, 40 Attendance and testimony may be enforced, 37 Examination of, how conducted, 38 Examination of de bene esse, &c, how had, 44 RULES OF THE EQUITY COURTS BALTIMOEE CITY. Rule i: Sittings of court; hearing. The sittings of each of the terms shall continue six weeks. All causes, motions and exceptions, matured for hearing, shall be as- signed for hearing in the order of application upon some special day, upon the motion of counsel for either party, provided that not less than three days' notice of the day so assigned shall be given to the counsel on the opposite side; and said causes shall be heard in the order in which they are so assigned. Should application to set a cause for hearing be made after the trial calendar of the court, in which the cause is pending, is full for the term, then said cause shall be assigned to the trial calendar of the other court, until its calendar is likewise full. The first hour of each day will be devoted to orders of course and by consent and to the hearing of short causes in the discretion of the court, and the judges presiding will not stop the progress of any argu- ment for the purpose of passing orders except in cases of urgency. Except during the summer recess of the courts, or when some other judge is specially assigned to such duty, the said two judges assigned respectively to said circuit court of Baltimore city and circuit court No. 2 of Baltimore city, will alternately attend at the court-house be- tween the hours of 10 and n o'clock A. M. on Saturdays, and on all other days when the court is not in session for the hearing of arguments, for the purpose of signing orders of course and by consent. Rule 2: Papers filed in proper person. Any petition or other writing addressed to the court, certified by a justice of the peace to have been signed or acknowledged before him by the person whose name is thereto subscribed, and who the justice shall state in the certificate is known to him, shall be filed, and shall have the same effect as if signed and filed by a solicitor. Rule 3: Setting cases for hearing. , After the general replication has been entered to the answer of the defendant, or if any issue be joined upon a plea, either party may order the case to be set for hearing; and unless the opposite party, within ten days after service of notice of such order, shall apply for leave to take testimony on his behalf, the cause shall stand for hearing and be heard. Rule 4: Commission to take testimony. After entry of general replication to the answer of the defendant, or after issue joined on plea, if either party desires to take testimony be- 873 874 Baltimore city equity rules. yond the limits of the city of Baltimore, and the parties cannot agree upon the selection of a commissioner or commissioners, the judge of the court may, by his order, appoint a commissioner or commissioners to take such testimony, and may give due regard to the nomination of the respective parties; but if the parties agree upon one or more commissioners, then the commission shall be issued by the clerk with- out an order of court to the person or persons named by the parties. Rule 5: Execution of commission. The following shall be the directions and forms for the execution -of commissions to take testimony: Oaths of witnesses. Oath to witness: — You make oath on the Holy Evangely of Al- mighty God, that you will true answers make to such interrogatories as shall be propounded to you before us in this case, and that therein you will speak the truth, the whole truth, and nothing but the truth, so help you God. Oath with uplifted hand: — You solemnly swear and promise, in the presence of the omniscient and heart-searching God, that, you will true answers make to such interrogatories as shall be propounded to you before us in this case, and that therein you will speak the truth, the whole truth, and nothing but the truth, as you will answer for the same to the great judge of the quick and the dead. Oath to Jewish witness: — You make oath on the Five Books of Moses, that you will true answers make to such interrogatories as shall be propounded to you before us in this case, and that therein you will speak the truth, the whole truth, and nothing but the truth, so help you God. The commissioners, upon a witness refusing to take an oath, will carefully examine him whether he has conscientious scruples against taking a judicial oath; and if he answers in the affirmative, they will administer to him the following affirmation: Affirmation: — You solemnly, sincerely and truly declare and affirm that you will true answers make to such interrogatories as shall be propounded to you before us in this case, and that therein you will speak the truth, the whole truth, and nothing but the truth. Form of commissioners' return. A.B| vs. r In the circuit court of Baltimore city. C. D J At the execution of the annexed commission, issued out of the cir- cuit court of Baltimore city, and to us directed, empowering us to ex- amine witnesses in the above entitled case, we, L. M. and S. R., the commissioners in the said commission named, having first duly taken the oath to the said commission annexed, met on the day of , in the year of our Lord, eighteen hundred arid at at Baltimore city equity rules. 875 at o'clock, pursuant to notice, and jve then and there proceeded, in the presence of the solicitors of the respective parties, to take the fol- lowing depositions, that is to say: (Where the commission is executed by one of them only:) "and directed to L. M. and S. R., they being the commissioners in the said commission named, having first duly taken the oath to the said commission annexed, I, the said L. M., one of the said commissioners, in the absence of the other commissioner, who was unable to attend the execution thereof, attended," &c. (Where it is addressed to one commissioner:) ''and to me directed, empowering me to examine witnesses in the above entitled case, I, O. P., the commissioner in the said commission named, having first duly taken the oath to the said commission an- nexed, attended," &c. (The clause, "in the presence of the solicitors of the respective par- ties," will be varied or omitted, according to the circumstances.) Where a commission to take testimony in chancery shall issue to two commissioners, only one shall act on the same day unless both are called upon, under a requisition of the parties; and the commissioner shall also be required to act as clerk, without extra compensation, un- less a clerk is asked for by one of the parties contestant. O. M., a witness of lawful age, produced on behalf of the plaintiff, be- ing by us first sworn (or affirmed, as the case may be,) in due form of law, being examined on the following interrogatories to him pro- pounded in that behalf, deposeth and saith as follows, that is to say: First interrogatory: State your residence and occupation. i. Answer: — " I reside at," &c. Second interrogatory: Do you know the parties? &c, &c. Cross-examined for the defendant. First cross-interrogatory: (Pro- ceed as before). (Where a party to the suit is examined.) i. A. B., of lawful age, the plaintiff in this cause, appearing before us as a witness on his own behalf, being by us, &c. 2. A. B., of lawful age, the plaintiff in this cause, being produced as a witness on behalf of the defendant, being, &c. Where a witness is recalled, or his examination is continued for more than one day, the interrogatories should, notwithstanding, be regu- larly numbered from first to last, as if the examination had been con- tinuous. His recall may be noted thus: O. M., a witness heretofore produced, sworn and examined on be- half of the plaintiff, being now again examined on the following inter- rogatories to him propounded in that behalf, or, "being now cross-ex- amined on the following cross-interrogatories to him propounded on behalf of the defendant," deposeth and saith as follows, that is to say: Ninth interrogatory: Do you or not know? &c. 876 Baltimore city equity rules. Adjournments. The commission was then adjourned to the day of , in the same year, at o'clock, and the same place; at which last-men- tioned time and place the commission met, pursuant to notice, for the examination of witnesses on behalf of the plaintiff, and no witnesses appearing before us, we adjourned the commission to the day of , in the same year, at o'clock, and the same place; at which last-mentioned time and place the commission met, pursuant to notice, and we proceeded, in the presence of the solicitors of the respective parties, to take the following depositions, that is to say: Conclusion. No other witnesses being named or produced to us, we then, at the request of the solicitors of the respective parties, closed the said com- mission, and now return it closed under our hands on this day of , in the year of our Lord, eighteen hundred and , at the city of , in the State of . L. M., S. R., Commissioners. A list of exhibits must then be made in the following form: There are exhibits to this commission, to wit: Plaintiff's exhibits, commission Nos. I to 12, inclusive. Defendant's exhibits, commission Nos. 1 to 4, inclusive. Defendant's exhibit A. L. M., S. R., Commissioners. If any of the exhibits have been previously filed with the bill or an- swer, state it thus: Defendant's exhibit A has been previously filed with the . Exhibits. Every exhibit must be marked by the commissioners for the purpose of identifying it, and also with the date when it was filed, in some such manner as the following: Plaintiff's exhibit, commission No. 1. Filed with the commissioners, December 10, 18 — . L. M., S. R., Commissioners. But if the exhibit has been already filed with the bill or answers, the commissioners must retain its old designation, and merely add the date when it was filed with them. If the exhibit be liable to injury, or be written on a small piece of paper, such as a promissory note, &c, it must then be fastened to a half sheet of paper, so that every part of it may be examined without diffi- culty; the paper must then be folded and endorsed in some such form Paltimore city equity rules. 877 as the following: (This in addition to the commissioners' entry on the exhibit itself.) 240 1888. A. B. vs. C. D. Plaintiff's exhibit, commission No. 1. Filed with commissioners, December 10th, 18 — . L. M., S. R., Commissioners. The exhibits will then be placed in an envelope, to be endorsed in some such way as the following: 240 1888. A. B. vs. C. D. Exhibits to Commission. Plaintiff's exhibits, commission Nos. I to 12, inclusive. Defendant's exhibit, commission Nos. 1 to 4, inclusive. Defendant's exhibit A. Total, 17 exhibits. After signing the certificate of return endorsed on the commission, and endorsing upon it the bill of costs, and attaching the return to the commission, the commissioners will return it with the packet of ex- hibits, the whole in one envelope, in the usual manner. 1. In the execution of all commissions, the testimony shall be taken by questions and answers, unless the parties shall otherwise agree. 2. Each page of the return must be numbered, and the name of the witness must be placed at the top. 3. Where the testimony is voluminous, and there are many witnesses, an index must be annexed to the return. Rule 6: Execution of commissions — continued. The parties have a right to be present at the execution of a commis- sion, and to reasonable notice of the time and place appointed for the execution of all commissions authorized by these rules. But they may agree to dispense with such notice, and then the witnesses may be ex- amined on interrogatories annexed to the commission. In the latter case "the party asking for the commission, before taking out the same, shall file his interrogatories, and serve a copy of the same on the ad- verse party or his solicitor, who shall, within ten days after service of said copy, file his cross-interrogatories to the witness proposed to be examined by the party asking for the commission, and also interroga- 878 Baltimore city equity rules. tories for the witnesses proposed to be examined on his part. Copies of all such interrogatories and cross-interrogatories shall be annexed to the commission and the examination shall be limited to the same, and to the witnesses named therein. Rule 7: Execution of commission — continued. The carriage of a commission to take testimony shall be intrusted to the party applying for the same, and he shall be responsible for the re- turn thereof. Every commission shall be executed and returned with- in thirty days from the issuing thereof,unless a different time be named in the commission, or further time be allowed by the court on applica- tion therefor. Rule 8: Rule return of commission. A rule for the return of a commission to take testimony may be en- tered on the docket by any party, at any time after the expiration of the day on which it is returnable, and a copy of said rule shall be served on the commissioner or on the party charged with the carriage and re- turn of the commission. Rule 9: Commissions to different places. Several commissions may be issued for the examination of witnesses in different places. But after the return of one commission executed, no other commission shall be issued to the same place unless by special or- der of the court. Rule 10: Withdrawing exhibits. Any party on giving a receipt for the same may take out of the clerk's office any exhibits by him filed, for the purpose of proving the same before an examiner or under a commission to take testimony. Rule 11: Hearing — absence of counsel. The absence of counsel shall not be considered as a ground for post- ponement of a hearing unless caused by sickness, or unless such counsel be engaged in the trial of a case in some other court in Baltimore city or in the court of appeals. 'And when two or more solicitors appear for a party, the sickness or engagement of one shall not be a ground for postponement. Rule 12: Submission without argument. In the trial of cases which may be submitted without argument, the court will expect to be furnished with notes or with a brief abstract of the object of the bill, and of the grounds of the defence, with a state- ment of the points or propositions relied on, and references to the ad- judged cases upon the subject. In all cases submitted without contest, except in ex parte mortgage suits, the papers shall be referred to the auditor and master, who shall report thereon to the court. Baltimore city equity rules. 879 Rule 13: Postponement or continuance. On any application for a postponement or continuance, the partj applying shall satisfy the court by affidavit or otherwise of the reason- ableness of his application; and if the object be to procure additional testimony the purport of that testimony and the names and residences of the witnesses shall be stated in the application with a sufficient ex- planation of the reasons which prevented the testimony from being taken in time; the whole to be verified by the affidavit of the party or his counsel. Rule 14: Service of rules as of course. Where any rule, which may be entered on the docket without appli- cation to the court, is required to be served on a party appearing by counsel, service shall be made personally on the counsel, or by leaving a copy of the rule at his office. If the party is not represented by coun- sel, the copy may be served on him personally, or left at his usual place of abode, or deposited in the postoffice, addressed to him at Baltimore. But if such party, not having counsel as aforesaid, does not himself re- side within the city of Baltimore, he may, by entry on the docket, desig- nate some certain place within said city, where the copy of any rule shall be left for him, and in this case a copy left at said place shall be treated as service on said party, or he may name his usual postoffice, and in this case service of the rule shall be made by depositing in the postoffice in Baltimore a copy of the rule addressed to him at his usual postoffice. But if such party shall designate no such certain place, and if his usual postoffice shall be unknown, then notice of such rule shall be given as the court shall direct. This rule will not extend to any special rule or order passed by the court. Rule 15: Injunction to stay execution at law. Where a bill is filed for an injunction to stay execution of a judgment at law, on the ground of partial payment or credit, or other equity af- fecting a part only of the judgment, the plaintiff will be required to exhibit a statement showing the balance which would remain due on the judgment, after deducting therefrom the allowances claimed, and to pay or bring into court to be paid to the defendant, such balance. Rule 16: Motion to dissolve. On filing an answer to a bill or petition for an injunction, the de- fendant may enter on the docket a motion for dissolution of the said injunction, which shall be placed upon the calendar for hearing at the next succeeding term, as provided in the first rule, or he may, on ap- plication, have a day assigned for the hearing thereof, and either party may thereupon obtain an order for taking depositions to be read at the hearing of the said motion, in accordance with the 46th equity rule of the court of appeals; or a commission may be obtained for examining witnesses residing out of the jurisdiction of the court. 880 Baltimore city equity rules. Rule 17: Hearing of motion to dissolve. On motion to dissolve an injunction, if the plaintiff shall not appear on the day assigned for hearing thereof, the opposite party may argue the motion orally, or by note in writing, or submit it to the court, which will thereupon proceed to consider and determine the same. Rule 18: References to auditors, &c. Cases shall be referred to the several auditors, examiners and masters in rotation, unless otherwise provided by special order of the court; and the clerk shall not give information as to the order of rotation. Rule 19: Auditors shall give notice. Upon the same day on which any of the auditors shall file with the clerk of the circuit court of Baltimore city, any report and account, in- cluding also any expense account, in any cause referred to him, he shall give notice of the fact that such report and account have been filed, the time when the same were filed, and of the day upon which the same may be ratified, in the absence of objection, to every party to the cause, or his solicitor, by means of a postal card, and also to the mort- gagor or his solicitor, in cases in which sales of mortgaged property may have been made. Such notices shall be addressed to the solicitor or party, at his place of business or abode, if known to the auditor; otherwise it shall be addressed to him at the city of Baltimore; and if the solicitor of any claimant shall be trustee in the cause, the notice shall be sent to the party himself. No proof of the sending of such notices shall be necessary to the ratification of the account, and the failure to send them shall not be ground for re-opening it. Forty of such no- tices shall be considered as equivalent to one day's service of the au- ditor; and for a less or greater number, he shall be compensated in the same proportion, and he shall be allowed for the cost of the postal cards. The auditor's report shall stand regularly for confirmation after the tenth day, reckoning from the day of filing thereof, unless exceptions be filed thereto within that time, or some questions be suggested by the auditor in his said report, for the determination of the court. Rule 20: Partition. In any case for partition, wherein other provisions may not be made by article 46 of the code of public general laws concerning inheritance, the report of the commissioners appointed to make partition shall not be submitted for final decree, except by consent of parties, until it shall have remained in the office thirty days; provided, that this time may be extended by special order. Rule 21 : Awards and divorce. On motion, a decree will be passed on any complete and final award made by the person to whom a cause has been referred by rule or order of the court; provided the said award shall have been filed and dock- eted, and shall have remained in court four days without exceptions, and Baltimore city equity rules. 881 a copy of said award shall have been served on the adverse party or his counsel, at least four days before said motion shall be made. No decree in a suit for divorce shall be passed in less than thirty days from the filing of the bill. Rule 22: Security. No solicitor or other officer of this court, or his deputy, shall be admitted as security for costs, or as a surety in an appeal or injunc- tion bond; and no married woman shall be admitted as surety on any bond for her husband. Rule 23: Order nisi and ratification of sale. On the report of any sale of real estate made under the authority of this court, an order will be passed for ratifying the said sale on some certain day named in the order, and not less than one month after the date thereof, and directing a copy of said order to be inserted in some daily newspaper printed in the city of Baltimore, at least once in each of three successive weeks before the expiration of one month from date of said order. And if no exceptions be filed or cause exist for setting aside the said sale, the same will, at any time after the day so named, and on the application of any person interested therein, be absolutely ratified and confirmed. But with the consent of all the parties inter- ested therein, a special order may be obtained for ratifying a particular sale. Rule 24: Commissions. On sales under decrees or orders of this court, the following allow- ances will be made to trustees and receivers: On the first $300, 9 per centum, $27.00. second 300, 8 tt ' 24.00. In the whole, $ 51.00. third 3°o. 7 tt 2I.OO. n tt 72.00. fourth 300, 6 t t i#.oo. tt tt 90.00. fifth 300, 5 tl 15.00. tt tt 105.00. sixth 300, 5 tt 15.00. tt tt 120.00. seventh 300. 4 tt 1 12.00. tt tt 132.00. eighth 300, 4 tt 1 12.00. tt a 144.00. ninth 300. 3i it 10.50. it tt 154-50. tenth 300, 3* tt 10.50. tt a 165.00. And four per cent, on the proceeds of sale above $3000, besides an al- lowance for expenses not personal. The above allowances are subject to be increased in cases of post- ponement at the request of the defendant, or of extraordinary difficulty or trouble from other circumstances, and to be lessened in case of negligence or other default of the trustee or receiver, at the discre- tion of the court. Whenever the trustee shall advertise mortgaged premises for sale, after having given not less than five days' notice thereof to the defendant, and the defendant shall pay the amount due before sale, the trustee shall be allowed one-half commissions after 56 882 Baltimore city equity rules. the foregoing rates on the amount due, which said allowance shall be paid by the defendant. Rule 25: Allowance for dower; life-tenant. The allowance to a healthy widow in lieu of her right of dower in lands sold under a decree of this court, shall be as follows: If she be under 40 years of age, not more than one-seventh. If above 40 and un- der 45, not more than two-fifteenths. If above 45 and under 51, not more than one-eighth. If above 51 and under 56, not more than one- ninth. If above 56, not less than one-tenth of the net proceeds of the sale, out of which she may be dowable. The allowance to a healthy tenant for life shall be three times as much as would be allowed to a widow of the same age. The allowance to a healthy wife, in lieu of her potential right of dower in the estate of a healthy husband, may be calculated according to the following table : Wife's Age 40 Husband's 4o-45 45-51 Age 51-56 56- 40 .08163 .08572 .08929 •o95 2 4 .10000 40-45 .07619 .08000 •08333 .08889 •09333 45-51 .07143 .07500 .07812 •08333 .08750 51-56 .06349 .06667 .06944 .07407 •07778 56- •05714 .06000 .06250 .06667 .07000 Method of using the table: take the wife's age as indicated in the vertical column, and follow the line out to the right. Take the hus- band's age, as indicated at the top, and follow the column down. At the point of intersection in the table will be found the per cent, of the net proceeds of the sale, at which the cash value of the wife's potential right of dower may be calculated. Example: Age of wife, 41; age of husband, 47; net amount of -sales, $100; per cent., 0833; $100 x .0833 =$8.33, which is the cash value of the wife's potential dower. Rule 26: Money in court. All moneys or securities brought into court under any order thereof shall be deposited in such incorporated bank of the city of Baltimore as may be selected by the agreement of the parties, or as the court may direct, to the credit of the cause wherein such order shall have been passed, and there remain subject to the order of the court. The original order signed by the judge of this court, together with the check of the clerk, in the usual form, shall be the authority to the bank for the payment of the money or delivery of a security deposited as aforesaid. The clerk shall procure a suitable check or pass-book, in which shall be entered, under the appropriate head, all sums and se- curities deposited, and all sums and securities checked out. And in said book it shall be his duty to record the order of the court and his own check, by virtue of which any money or security may be withdrawn, and also the receipt for such order and Baltimore city equity rules. 883 check, which shall be signed by the person to whom the same shall be delivered, and at the time of the delivery thereof. All checks shall be drawn payable to the order of the person or persons to whom such payment or delivery is directed to be made. Rule 27: Investments. Every investment under authority of this court, unless otherwise specially ordered by the court, shall be made in the inscribed debt of the State of Maryland or of the city of Baltimore, at the election of the trustee or the person making the investment. The certificate shall import on its face that it is made by the trustee, and is to be subject to the order of the court. If the public authority issuing the certificate shall decline to issue it in said form, the trustee, immediately on procur- ing the same, shall endorse thereon that the investment is made by order of this court of a certain date, and passed in a certain cause, and is to be subject to the order of this court to be passed in said cause. Every investment must be reported to the court for ratification there- of. The certificate of investment shall accompany the report, and on approval thereof by the court, shall be deposited in bank to the credit of the cause for account whereof it shall have been made. Rule 28: Auctioneers' fees. The following allowances will be made to the auctioneers for offer- ing and selling real and leasehold estate under decrees of this court: For offering where no sale is effected $ 10 oo For the first piece sold at any offering where the amount of sale is not above $500 ' 10 00 Where above $500, and not over $1,000 IS 00 Where above $1,000, and not over $3,000 20 00 Where above $3,000, and not over $5,000 25 00 Where above $5,000, and not over $10,000 * 30 00 Where above $10,000, and not over $30,000 50 00 Where above $30,000, and not over $50,000 75 00 Where over $50,000 100 00 Provided, that in cases where more than one piece shall be sold under the same decree, at the same time and place, and the aggregate of al- lowances by the above scale shall exceed $100, then the said al- lowances shall be the subject of modification according to the circum- stances of each case. On all sales of personal chattels, the auctioneer making the same shall be allowed ten per cent, upon the proceeds of sale up to three hundred dollars, five per cent, upon all over three hun- dred and up to six hundred dollars, and three per cent, upon all over six hundred dollars; the said allowance, however, to be subject to in- crease or decrease by order of the court for special cause shown. Rule 29: Change of name. All persons applying for the benefit of code, article 16, section 95, shall file in this court a petition, in which shall be stated the residence of 884 Baltimore city equity rules. such person, the change which said person desires to be made in his or her name, and the reasons therefor; which petition shall be sustained by the affidavit of such person, or in case such petition is filed on be- half of an infant, it shall be made by the father, mother or guardian of such infant; whereupon thirty days' notice of such application shall be given by publication once a week for three successive weeks, in some daily newspaper printed in the city of Baltimore. At the expira- tion of said thirty days the said petition may be submitted to the court, and the court will thereupon proceed to consider the said petition, and pass an order or decree, as may appear to be proper in the case. Af- fidavits, as well in opposition as -in support of such petition, may be filed before the expiration of said thirty days. Rule 30: Court papers. No paper shall be allowed to remain out of the hands of the clerk for a period of more than five days, except such as may be required by the auditors, examiners or masters; and after such period shall have expired, he shall immediately require the same to be returned to him. Rule 31: Annual reports by trustees, &c. On or before the first day of April, A. D. 1890, and within thirty days prior to the first of the said month in every year thereafter, it shall be the duty of every trustee, or receiver, appointed by a decree or or- der for either of the said courts, and of every trustee executing or ad- ministering any trust, howsoever created, under the order and super- vision of either of the said courts, and all fiduciaries administering any estate in either of said courts, to file with the clerk of the said court by which he may have been appointed, or under the orders of which said trusts are, or have been, administered, a report or account, verified by his corporal oath, in which he shall fully and clearly set forth the nature of all assets and property held by him in such fiduciary ca- pacity, where, any monies may be deposited, and under what name and the nature and particulars of all securities, real or personal, whether the same were received by him in the same form as parts of the trust estate, or have been investments made by, him. And so soon as such report or account shall have been filed it shall be the duty of the clerk to lay the same before the judge of the said court, who shall thereupon refer the same to one of the auditors or masters for examination and verification, and thereupon the said auditor or master shall, at some convenient time or place to be fixed by the auditor or master, or by the court, cause said trustee, receiver or other fiduciary, to exhibit to him all the securities so reported by such trustee, receiver or other fiduciary, and ascertain whether the same corresponds with such report or ac- count, and shall also examine and ascertain the correctness of the statements of the report or account, with respect to all deposits of money stated in said account or report, as existing when the report or account is filed; and said auditor and master shall immediately report to the court the result of such examination and verification and .Baltimore city equity rules. 885 o for such service the auditor or master shall be allowed from the in- come of the trust estate the sum of four dollars, unless for special cause shown the same is increased by order of the court. And the clerk shall on the first day of April in each year, report to the court the names of all trustees, receivers or other fiduciaries amenable to this rule, designating such as have complied and such as have failed to comply with the same; and any trustee, receiver or other fiduciary who may fail to comply therewith may, at the discretion of the court, be removed and some other person may be appointed to execute the trust. Rule 32: Auditor's certificates and fees. In all auditor's accounts hereafter stated, the auditor shall annex thereto, a certificate of the number of days actually occupied by him in making out the account; and for his services he shall be allowed the per diem now fixed by law, and also an allowance for notices to persons interested in the distribution, as provided by rules of court; and in no case shall he be allowed additional fees except by special order of court, for cause shown upon petition. Rule 33; Habitual drunkards' act. Whenever application is made for ihe benefit of chapter 247 of the acts of 1894, entitled, "An act to provide for the treatment and cure of habitual drunkards," a copy of the petition, and of the names of the witnesses, shall be served upon the mayor and city council, and notice shall also be given them of the day fixed for hearing. The general man- ager or other chief officer, of whatever institution may be designated by the court for the treatment of the patient, shall make, under oath, a statement to be filed in the clerk's office of the court in which the pe- tition is filed, giving the names of aH the officers and employees of said institution; and whenever a change is made in said officers or em- ployees, he shall report the same at once to the court, giving the name or names of any new or additional officers or employees; and before any party shall be committed under the provisions of this act to any such institution, each of said officers and employees, and also the said gen- eral manager, shall be sworn in as officers of the court, as provided for by section 4 of said act. The general manager, or other chief officer, of such institution, shall make a report under oath, at least once a week, or oftener, if required, to the court, setting forth the general condition of the patient, the progress, if any, made toward his cure, and if the patient still continues in the institution and under treatment. Rule.,34: Taking testimony. Whenever application shall be made by either party to take testi- mony, he shall indicate in such application whether he desires that it shall be taken before an examiner, as heretofore practiced, or orally in open court. If in the latter mode, such testimony shall be taken by a stenographer, unless both parties, the court concurring, shall agree to dispense with his services; and provision, satisfactory to the 886 Baltimore city equity rules. stenographer, shall be made by each party for the payment of the services of the stenographer in taking and transcribing the testimony offered on his side, including one copy for the court — the cost of tak- ing and transcribing such testimony to be taxed as costs and be dealt with as other costs are. The examination of witnesses shall be con- ducted by one counsel on each side, and no argument will be allowed on questions of evidence, unless the court requests it. Where the party applying to take testimony shall indicate that he desires that it shall be taken before an examiner, as heretofore practiced, it shall be so taken, unless the opposite party upon being notified thereof, within one day after being so notified, shall claim the right to have the testi- mony taken orally, in which event it shall be so taken as heretofore provided. EQUITY RULES OF THE CIRCUIT COURT FOB BALTIMOEE COUNTY. Adopted January 29, 1895. Rule i: Testimony to be typewritten. The testimony taken by examiners as required by the equity rules prescribed by the court of appeals of Maryland shall be type-written, and the pages correctly numbered, the expense of such type-writing to be paid by the party at whose instance the testimony is taken, and to be taxed along with the other costs in the case. Rule 2: Examiners. Three hours shall be considered as a day's work for examiners, ap- pointed under rule 32, prescribed by the court of appeals of Maryland, but examiners may charge for a full day's work whenever less than three hours may be requisite to complete the taking of testimony in any one case. Rule 3: Return of commissions. Commissions issued for taking testimony within the United States shall be returned within three months from the day of their date, and if not so returned a rule or order may be obtained for the return thereof, by such day as shall be limited, or on application such commission shall be declared void, and a new commission shall issue, or other order as may appear proper, provided that when such commission shall not be so returned, it shall be prima facie considered the fault of the party who had the carriage of said commission. The return of commissions issued without the United States shall be governed by such rules as the court may prescribe, having regard to circumstances in particular cases. Rule 4: Delay in issuing commissions. Where a commission shall not be issued within fifteen days from the filing of the order or agreement for the same, the party at whose instance it is issued shall be subject to the rule for further proceedings. Rule 5: Decree of partition and dower. No final decree of partition or of dower shall be made on the report of commissioners, unless such report shall have been filed, and shall have lain in the clerk'^ office during the first four days of the term, or unless the parties shall have certified in writing their appro- bation of the report: provided, however, that at any time after filing such report any party may obtain an order for ratifying it, unless cause be shown at such time and on such notice as may be directed. 887 888 Baltimore county equity rules. Rule 6: Decree on awards. On motion or application a decree will be passed upon any final award rendered by referees appointed by rule of court and with the consent of parties; Provided such award shall have been filed and docketed and shall have lain in the court the first four days of a term, and that no exception shall have been filed thereto; or, provided a copy of the award filed and docketed shall have been served on the opposite party or his solicitor at least ten days before such motion or applica- tion, and that no exception shall have been filed to the award. Rule 7: Attachments. In cases where attachments are issued, further process or proceed- ings thereon must be taken before the commencement of the term next after the return of such attachment, otherwise the party must re- sort to a new attachment. Rule 8: Hearing — Absence of counsel. The absence of counsel or of a party appearing without counsel ex- cept in cases of sickness, shall not be considered as a ground of con- tinuance or postponement, and when two or more solicitors appear for any party, the attendance of one solicitor or his ability to attend shall be sufficient to prevent a continuance or postponement on ac- count of the absence of the other solicitors for any cause whatsoever. Rule 9: Service of rules and orders. No party or his solicitor shall be bound to take notice of any rule or order made and docketed either in term or during vacation relative to a suit, unless a copy of such rule or order be served on the said party or his solicitor within four days after the passing or entering of such rule or order, except in cases where the court shall especially order otherwise, or when the rules of court otherwise direct. Rule 10: Testimony. On application to open or remand the testimony, or to have an order issued for the taking of further testimony, the opposite party may re- quire proof by affidavit or otherwise of the nature of the testimony wanted, and of the reasons which may have prevented its being pro- duced in time. Rule 11: Motion to dissolve. On motions to dissolve injunctions, if the complainant shall not ar- gue the same on the day assigned for hearing, the opposite party may aijgue it orally or by notes on that day, or submit it to the court, who shall thereupon proceed to determine the said motion. Rule 12: Ne exeat. A ne exeat shall be by special order dissolved upon the defendant filing a bond executed by himself, and a surety or sureties approved by the court in such penalty as the court shall direct, conditioned that in Baltimore county equity rules. 889 case the complainant shall obtain a decree in his favor, the defendant shall obey, fulfil and perform the said decree or surrender his body to the custody of the sheriff, to whom any writ of attachment shall be directed for compelling the defendant's performance of said decree. Rule 13: Order nisi on report of sale. ' No sale of real property under a decree or order of this court shall be finally ratified and confirmed until public notice of the report of such sale shall have been inserted in some newspaper printed and published in Baltimore county at least once a week for three successive weeks, which notice shall consist of a copy of an order ratifying said sale nisi, unless the same be by consent, or be otherwise ordered by the court. Rule 14: Commissions to trustees. On sales under decrees or orders of this court the following allow- ances shall be made to trustees: On the first $3°°> 9$. $27.00 tt a second " 8#, 24.00, in the whole $ 51.00 tt tt third " 7#, 21.00, tt tt lt 72.00 tt tt fourth " 6#, 18.00, tt a 90.00 it it fifth " S*i i5-oo, < t tt " IO5.OO tt tt sixth " 5*, 15.00, 1 1 11 " I20.00 if it seventh " 4#> 12.00, it a " I32.O0 tt It eighth " 4% t 12.00, tt tt " I44.OO tt it ninth " 3-W. 10.50, it tt I54.50 it tt tenth " &#, 10.50, tt tt 165.OO And four per centum on the proceeds of sales above $3,000, besides an allowance for expenses not personal. The above allowances subject to be increased in cases of postpone- ment at the request of the defendant, or of extraordinary difficulty or trouble from other circumstances, and to be lessened in case of neg- ligence, at the discretion of the court. Whenever a trustee or attorney in fact shall advertise mortgaged premises for sale under an order or decree of this court, and the defendant shall pay the amount due be- fore sale, the trustee shall be allowed half commissions on the amount reported due, and the said allowance shall accordingly be ordered to be paid by the defendant. Rule 15: Allowance in lieu of dower. The allowance to a widow in lieu of her right of dower in land sold under decree shall be as follows, having due regard to her "health and condition:" Aged under 40 years, not more than one-seventh, " above 40 and under 45, two-fifteenths, " " 45 " " 51, one-eighth. " " 51 " " 56, one-ninth. " " 56 not less then one-tenth. 890 Baltimore county equity rules. Rule 16: Allowance to tenant by courtesy. The allowance to a tenant by courtesy in land sold under decrees shall be as follows, having due regard to his health and condition: Aged under 30 years, not more than three-eighths, " over 30 and under 40 years, five-sixteenths, " " 40 " " 50 " three-sixteenths, "50 " " 60 " two-sixteenths, " " 60 not more than one-ninth Rule 17: Answer — further proceedings. On an answer being filed, it shall be the duty of the clerk to make a copy for the opposite party. The complainant shall have two weeks after notice served on him of the answer having been filed to except to the answer, after which time the complainant shall be subject to the rule for further proceedings. . Rule 18: Amendment of bill. If the defendant's answer be excepted to as insufficient, and the de- fendant submit to answer further, or the answer be adjudged insufficient, the complainant may amend the bill by leave of the court without costs, and the defendant shall answer the amended bill. Rule 19: Answer to cross-bill. When a cross-bill shall be filed the defendant to the first bill shall answer thereto before the defendant to the cross-bill shall be com- pelled to answer such cross-bill. Rule 20: Testimony of aged witnesses, etc. Upon any bill filed and before the defendant has answered, upon oath made that any of the complainant's or defendant's witnesses are aged and infirm, or are going out of the State, or that any one of them is a single witness to a material fact, the clerk may issue a. commission to one of the examiners appointed by the court for taking the exam- ination of such witness or witnesses, the party praying such commis- sion giving such notice as the examiner shall term reasonable to the adverse party or his solicitor of the time and place of taking the depo- sitions. Rule 21 : Answer sworn to out of State. An answer sworn to out of the State will be received if sworn to be- fore a justice of the peace, certified to be so by a prothonotary or clerk of the court under his official seal, or before a notary public, or before a judge of any court whose official capacity shall be certified by the clerk under seal of office, or before a mayor. Rule 22 : Affidavit that defendant is an heir at law. Under the revised code of Maryland, article 16, the affidavit of a disinterested person will be required that the defendant appearing is heir at law before a final decree is passed.. Baltimore county equity rules. 891 Rule 23: Affidavit of non-residence. An affidavit of non-residence will be required before any decree against a non-resident not appearing will be passed. Rule 24: Auditor's report. No report of. the auditor distributing money shall be finally ratified until the same shall have lain in court for at least ten days, but ex- ceptions may be filed at any time before final ratification. Notice by postal cards shall be given by the auditor to the parties in interest or their solicitors of record of the filing of such account. Such notice to be mailed on the day the account is filed. Rule 25: Testimony before auditor. When any matter shall be referred to the auditor of the court to ex- amine and report thereon, and any party shall wish to offer testimony before said auditor in regard to the matter so referred to him, the au- ditor shall assign a day and place therefor, and give reasonable notice to the parties or their solicitors, and if either party shall fail to attend at the time and place, the auditor may adjourn the examination of the matter to some future day, and must give notice thereof to the parties or their solicitors, expressing therein that in default of the appearance of them, or any of them, at the time and place, the auditor will proceed ex-parte; and accordingly, upon such default, he shall proceed to ex- amine the matter in order to such proceedings as to the court shall seem right. Rule 26: Money paid into court. All money paid in court shall be disposed of as provided for in Rule No. 25 on the law side of this court. Rule 27: Annual reports by trustees, etc. All guardians, receivers, committees of lunatics or idiots, or trus- tees, who have been or may be appointed by this court, if the clear annual value of the estate committed to their management exceed the sum of two hundred dollars, shall at least once in every year, and if of a less value, at least once in every two years, if the court shall not otherwise direct, exhibit to the court and file with the clerk an account of their guardianship or other trust, and of the balance of money that may then be in their hands respectively, that this court may take proper order for the disposition and improvement thereof. The clerk who shall enter the appointment of such guardians, receivers, committees and trustees, shall furnish them upon such appointment, with a certi- fied copy of this rule. It shall be the duty of the clerk to report to the court all failures of guardians, receivers, committees and trustees aforesaid to comply with this rule immediately upon the period afore- said, and the court will, by order and attachment, enforce the accounts- aforesaid. 892' Baltimore county equity rules. Rule 28: Receipts to trustees. Original receipts and acquittances given to trustees and lodged for record in the clerk's office shall be returned to trustees after they shall have been recorded. Rule 29: Computation of time. The, computation of time within which any rule shall be complied with, or any order, notice or paper served, shall be the same as that prescribed by the 12th. rule of the law side of this court. . Rule 30: Hearing. At the hearing of causes only such papers shall be used as may be necessary to put the court in possession of the nature of the cause and the state of the pleadings, and no evidence shall be read except in ar- gument, and only such portions of it then as the respective solicitors may deem necessary and pertinent to the issue or issues, and to the elucidation and enforcement of the argument. Rule 31: Time limited for argument. Arguments of solicitors shall be limited to one hour and thirty min- utes each, but the time may be enlarged in the discretion of the court upon application made before the commencement of the argument. Rule 32: Reissue of process for defendants. Upon the return of any process for the defendant or defendants ■"non est" or "not found," it shall be the duty of the clerk to re-issue for any defendant so returned to the next ensuing return day, unless other- wise directed by the plaintiff or his solicitor, g. Rule 33 : Withdrawal of exhibits. A complainant, on giving his receipt to the clerk for the same, may obtain any exhibit filed and referred to in the bill or petition and not ad- mitted in the answer, if the complainant shall require the same for the purpose of proving them under a commission issued to take testi- mony in the cause or in any other mode prescribed in the cause. A defendant, upon an. order from the court, may obtain any exhibits for proof, as aforesaid, referred to in his answer and connected with matter alleged in avoidance. Rule 34: Counsel fees. No application to the court for the allowance of counsel fees will be entertained, except the application of attorneys for trustees, receivers, executors, guardians and administrators in cases where estates are be- ing administered under the care and direction of this court, where the nature of the trust and the circumstances of the case require the em- ployment of an attorney, or in suits for divorce, or in cases where par- ties to suits are infants, or from some other cause are incompetent to contract, or in creditors' suits where the case is conducted to a conclu- sion for the general benefit of the creditors. ' EQUITY RULES OF THE CIRCUIT COURT FOR CECIL COUNTY. Rule i : Return day. The first day of each term shall be the return day for equity process. Rule 2: Bill and petition to be filed. No bill or petition shall be laid before the court until it shall have been duly filed by the clerk. Rule 3: Papers in proper person. Any bill or petition, or writing filed and addressed to the court, cer- tified by a judge or justice to have been acknowledged before him by the person whose name is subscribed thereto, the judge or justice stating in the certificate that such person is known to him, shall have the same effect as if signed and filed by a solicitor of the court, or as if delivered by the person to be filed. Rule 4: Exhibits to be filed. No attachment shall issue against any defendant to answer a bill or petition, nor shall an injunction be granted until all the papers re- ferred to as exhibits with the bill or petition, and made part thereof, shall be filed. Rule 5: Withdrawal of exhibits. A complainant or defendant, upon giving his receipt to the clerk for the same, may obtain any exhibits filed and referred to in the bill or petition, or answer, if the complainant or defendant shall require the same for the purpose of proving them under a commission issued to take testimony in the cause, or in any other mode prescribed in the case. Rule 6: Commissions to take testimony. Commissions issued for taking testimony within the United States shall be returned within three months from the day of their date, un- less the distance shall exceed five hundred miles by the usual mail route; and in that case six months; and if not so returned, a rule or order may be obtained for the return thereof by such day as shall be limited, or on application such commission shall be declared void, and a new commission shall issue or other order passed in the premises as may appear proper; provided that when such commission shall not be so returned, it shall prima facie be considered the fault of the party who had the carriage of such commission. Where a' commission shall 894 Cecil county equity rules. not be issued within fifteen days from the date of the order or agreement for the same, the complainant shall be subject to the rule for further proceedings. Other commissions for taking testimony shall be sub- ject to the special order of the court in the particular cases. Rule 7: Auditor's report. When any report of the auditor shall have been filed and lain in court from the Wednesday preceding the first day of each and every term, the court will, on application, act on the same, on and after said first day of each term. Rule 8: Decrees of partition and dower. No final decree of partition, or of dower, shall be made on the re- port of commissioners, unless such report shall have been filed and shall have laid in court during the first four days of a term, or unless the parties shall have certified in writing their approbation of the re- port; provided, however, that at any time after filing such report, any party may obtain an order for ratifying it, unless cause be shown at such time, and on such notice as may be directed. Rule 9: Decree on award. On motion or application, a decree will be passed upon any final award rendered by the referees appointed by the rule of the court, and with the consent of parties; provided such award shall be filed and docketed, and shall have lain in court the first four days of a term, and that no exception shall have been made thereto; or, provided, a copy of the award filed and docketed shall have been served on the op- posite party, or his solicitor, at least ten days before such motion or application, and that no exception shall have been filed to the award. Rule 10: Hearing. Causes set down for hearing, and motions for dissolving injunctions, will be taken up on application of either party, and without regard to their numerical order on the docket. The court will hear the argu- ment or receive the notes of either party, or his solicitor, at any time during the term, and if the opposite party, or his solicitor, shall not offer his argument or notes before the close of the term, the court will proceed to decide the cause, as if both parties had been heard; provided such opposite party, or his solicitor, shall, before the close of the term, have been notified that the argument or notes aforesaid, have been offered. On a case being argued as aforesaid by one party alone, the clerk shall place on the outside of the bundle of the papers in the case a memorandum of the day and side on which the case was argued or notes filed; and at the close of the term, the clerk shall deliver to the court the papers in all cases so argued, in order to the determination thereof. Rule 11: Attachments. In cases where attachments are issued, the further process thereon Cecil county equity rules. 895 must be required before the commencement of the term next after the return of such attachment, otherwise the party must resort to a new attachment. Rule 12: Abatement; new parties. Under article 16 of the code of public general laws, the proof of the right of the applicant, executor or administrator to appear, shall be an exemplification of the letters testamentary, or of administration, ■or an affidavit of the death of the party, and the heirship (where the heirs are applicants).; and in addition to the affidavit of death of the party, devisees applying shall exhibit a certified copy of the will under which they claim. The court will order notice to be served on the opposite party of the admission of the personal representatives, or heirs, or devisees as parties, but such notice shall consist only m the copy of the order nisi admitting the said parties. In such order the opposite party shall be allowed four days after service to show cause against the admission. Rule 13: Hearing — absence of counsel. The absence of counsel, (except in cases of sickness), or of a party appearing without counsel, shall not be considered as a ground of con- tinuance or of postponement; and when two or more solicitors appear for any party, the attendance of one solicitor, or his ability to attend, shall be sufficient to prevent a continuance or postponement on account of the absence for any cause whatever of the other solicitors. Rule 14: Service of rules and orders. No party, or his solicitor, shall be bound to take notice of any rule or order made and docketed, either in term or during vacation, rela- tive to any suit or proceeding, unless a copy of such rule or order be served on the said party, or his solicitor, within four days after the passing or entering of such rule or order, or as shall be by the court specially directed. This not to apply to non-resident defendants, or defendants who are in default for want of appearance. Rule 15: Submission of causes. In trial causes which may be submitted, the party submitting shall lodge in court notes or an abstract in each case of the object of the bill and a summary of the evidence, and the grounds of law and fact on which he relies, on or before the second day of the term, and shall on or before the third day of the term, give notice to the opposite party, or his solicitor, of the submission of such cause. Rule 16: Testimony. On any application for continuance for want of testimony, or any other cause, or on application to open or remand a commission, or to have a new commission issued for the purpose of taking further testi- mony, the opposite party may require proof by affidavit or otherwise of the nature of the testimony wanted, and the reasons which may have prevented its being produced in time. 896 Cecil county equity rules. Rule 17: Appearance and answer. A party who has been summoned shall have until the fourth day of the term to which summoned to appear, and on failure to appear by the said fourth day, shall be deemed in default. A party appearing shall have until the fourth day of the next succeeding term to answer, and on failure to answer by the said fourth day, shall be deemed in default, and rules for pleading and for further proceedings shall regularly be by the fourth day of the term next succeeding that at which the rule is laid. Rule 18: Abatement and revivor. On the suggestion of the death of a party which would abate the suit, the same is to be entered abated, and not brought forward or continued on the docket under "leave to file bill of revivor," unless the party suggesting the death or some other party take further pro- ceedings, either by bill of revivor or under article 16 of the code of public general laws by the fourth day of the term next after that at which the suggestion shall be made. Rule 19: Motion to dissolve. On motions to dissolve injunctions, if the complainant shall not argue the same on the day assigned for hearing, the opposite may ar- gue it orally, or by notes, on that day or submit it to the court.which shall thereupon proceed to determine the said motion. Rule 20: Motion to dissolve. When an answer shall be filed to an injunction bill admitting the equity thereof, and praying a dissolution of the injunction as to a part of the enjoined judgment not affected thereby, a motion for such disso- lution will be heard at the term next after filing the answer, without notice to the opposite party of such motion. Rule 21 : Order nisi on report of sale. No sale of real property under a decree or order of this court shall be absolutely ratified and confirmed until public notice of the report of such sale shall have been inserted once a week for one month in some newspaper published in Cecil county one month previous to such con- firmation; such sales may however be confirmed by consent in writing, without notice, where there are no infant parties to the cause. Rule 22: Trustee. No person but an officer of this court shall be a trustee to make sale under any decree or order of this court, unless the court shall for special reasons dispense with this rule. Cecil county equity rules. 897 Rule 23: Commissions to trustees. On sales under decrees or orders of this court, the following allow- ances shall be made to trustees: On the first 500 dollars 7 per centum. " second " 6% " third " 6 fourth " 5 fifth " 4% " sixth " 4 and four per centum on all amounts above the $3000, above allowed, besides the allowance for expenses not personal. The above allow- ance to be increased in cases of postponed sales at the request of de- fendants, or extraordinary difficulty, or trouble from other circum- stances. Where there is no sale, as for instance, where the defendant pays under the decree, and the trustee has bonded, the allowance shall be one half the commissions hereinbefore prescribed, but may in particu- lar cases be increased or diminished by special order of the court. Rule 24: Solicitor's fee. The auditor shall allow in each case where a decree or order for sale is passed a fee of thirty dollars to the complainant's solicitor, and where the defendant appears by solicitor, the usual solicitor's fee shall be al- lowed out of the proceeds of sale. (The first provision of this rule was held to be void in McCullough v. Pierce, 55 Md. 540, 545.) Rule 25: Allowance in lieu of dower. The allowance to a widow in lieu of her right of dower in land sold under decree shall be as follows — having due regard to her health and condition: If she be under 40 years not more than \ If above 40 and under 45 T 2 T If above 45 and under 51 \ If above 51 and under 56 i If above 56 not less than ^ Rule 26: Allowance to tenant by courtesy. The allowance to a healthy tenant by the courtesy in land sold under decrees shall be as follows: If under 30 years of age not more than f If above 30 and under 40 years A " 40 " 50 " " A " 50 " 60 " " A If above 60 57 898 Cecil county equity rules. Rule 27: Answer — further proceedings. On an answer being filed it shall be the duty of the clerk to make a copy for the opposite party. The complainant shall have two weeks after notice served on him of the answers having been filed to except to the answer; after which time the complainant shall be subject to the rule for further proceedings. Rule 28: Demurrer and plea. The complainant may set down the demurrer or plea to be argued, or he may take issue on the plea. If a plea or demurrer be overruled no other plea or demurrer shall be received, but the defendant shall pro- ceed to answer the bill; and if he fail to do so within the time prescribed by the court upon overruling the plea or demurrer, the bill, or so much thereof as was covered by the plea or demurrer, may be taken for con- fessed and the matter thereof decreed accordingly. Rul 29: Amendment of bill. If the defendant's answer be excepted to as insufficient, and the de- fendant submit to answer further, or the answer be adjudged insuffi- cient, the complainant may amend the bill by leave of the court without costs, and the defendant shall answer the amended bill and exceptions together. Rule 30: Amendment of bill. If the defendant demur to a bill for any defect not embracing the equi- ty of the whole bill, the complainant may amend with leave of the court at any time before or at the argument of the demurrer, upon payment of costs, at the discretion of the court. Rule 31 : Demurrer, plea and answer. The defendant may at any time before the bill is taken pro confesso, or afterwards with leave of the court, demur or plead to the whole bill, or part of it; and he may demur to part, plead to part, and answer to the residue; but in any case in which the bill charges fraud, or fraudu- lent actings, or combination, a plea to such part of a bill, or to such bill, must be accompanied with an answer fortifying the plea and explicitly denying the fraud and combination and the fact on which the charge is founded. Rule 32: Answer to cross-bill. When a cross bill shall be filed, the defendant or defendants- to the first bill shall answer thereto before the defendant or defendants to the cross bill shall be compelled to answer such cross bill. Rule 33: Testimony of aged witnesses, &c. Upon any bill filed, and before the defendant has answered, upon oath made, that any of the complainant's or defendant's witnesses are aged, or infirm, or going out of the state, or that any one of them is a single witness to a material fact, the clerk may issue a commission to Cecil county equity rules. 899 the standing commissioners for taking the examination of such witness or witnesses — the party praying such commission giving such notice as the commissioners shall deem reasonable to the adverse party of the time and place of taking the depositions. Rule 34: Answer sworn to out of State. An answer sworn to out of the State will be received, if sworn to be- fore any officer who may, by the laws of this State, take the acknowl- edgment of a deed in the place where sworn to, and certified in like manner. Rule 35: Affidavit that defendant is heir-at-law. Under the provisions of article i6,sections 88, 95, 96, 97, 98, of the code of public general laws, an affidavit of a disinterested person will be required, that the defendant appearing is heir-at-law, before final decree will be made. Rule 36: Affidavit of non-residence. An affidavit of non-residence will be required before any decree will be passed against a non-resident not appearing. Rule 37: Hearing. When a commission and testimony under it shall be returned, the cause may, after the commission and testimony shall have lain in court ten days, be set down for hearing forthwith, or at the term ensuing the expiration of said ten days, if that shall be in vacation. Rule 38: Auditor's proceedings. When a matter shall be referred to the auditor, to examine and report thereon, he shall assign a day and place therefor, and give reasonable notice to the parties, or their solicitors; and if either party shall fail to attend at the time and place,the auditor may adjourn the examination to some future day, and must give notice thereof to the parties, or their so- licitors; and on their failure to attend he shall proceed ex parte to ex- amine the matter and report to the court. This rule not to apply to cases in which the defendants have failed to appear in person or by so- licitor. Rule 39: Petition for re-hearing. Every petition for a re-hearing shall contain the special matter or cause on which such re-hearing is applied for, shall be signed by the counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or some other person. No re- hearing shall be granted after the fourth day of the term next after that when the decree shall be signed. Rule 40: Enforcing delivery of possession. If a defendant, or tenant, or other person, coming in pendente lite, refuse to deliver possession of property sold under decree or order of 900 Cecil county equity rules. the court, upon affidavit made of the fact, the court will issue an order directing possession to be given to the purchaser forthwith, unless cause shown by a certain day to be limited in said order; and on re- fusal or neglect to comply with said order, a writ in the nature of a writ of habere facias possessionem shall forthwith be issued by the clerk. Rule 41 : Receipts to trustees. Original receipts and acquittances given to trustees, and lodged for record in the clerk's office, shall be returned to the trustee after they shall have been recorded. Rule 42 : Ne-exeat. A ne-exeat shall be by special order dissolved upon the defendant's filing a bond executed by himself, and a surety or sureties approved by the court, in such penalty as the court shall direct — conditioned that "in case the complainant shall obtain a decree in his favor, the said de- fendant shall obey, fulfil and perform the said decree, or render his body to the sheriff, to whom any writ of attachment shall be directed, for compelling the defendant's performance of said decree." Rule 43: Payment of money into court. A trustee, under a decree or order for sale, may pay money into court without any special order, and shall at the time of such payment give to the clerk a statement of the amount, and on what account paid in, and the clerk shall receipt for the same on a duplicate of such state- ment. All sums so paid in shall be deposited by the clerk in some bank to the credit of the cause in which paid in, and shall only be drawn out on the special order of the court. In all other cases a special order shall be required to authorize the payment of money into court. Rule 44: Audits in trust estates. The auditor, in stating audits in trust estates, shall not allow any claim upon the trust fund that is at the time it is presented for audit, or which appears to have been at any time previous thereto, marked or transferred to the use of the trustee in said cause, until the amount actu- ally paid for said claim by said trustee shall have been established by legal and competent evidence; and he shall then only allow said trustee, or any person claiming under him, the amount actually and bona fide paid therefor by said trustee (with interest at six per cent, thereon, if it is a claim upon which interest is properly allowable) ; and he shall audit to the cestuis que trust, who would have been entitled to receive the money if no transfer of the claim had been made, the difference be- tween the gross amount of the claim and the sum so paid by the trustee. Rule 45 : Taking testimony. The commissioners on the equity side of this court, in all cases where testimony is taken, shall copy and insert the interrogatories immediate- ly preceding the answers of the witnesses. Cecil, county equity rules. 901 Rule 46: Order nisi on sale of personal property. When personal property is sold by a mortgagee, or other person, under a power of sale contained in a mortgage, or by a trustee, under a deed of trust, or decree of this court, and the sale thereof is reported to this court, an order nisi shall be passed and inserted in some newspaper printed and published in Cecil county, once in. each of two successive weeks, givipg notice that the said sale will be ratified unless good cause to the contrary be shown within one month from the date of the first publication of said notice. This rule not to apply when the sales of real estate and personal property are included in the same re- port. EQUITY RULES OF THE CIRCUIT COURT FREDERICK COUNTY. Rule i : Return day. The first day of each term shall be the return day for equity process. Rule 2: Bill and petition to be filed. No bill nor petition shall be laid before the court until it shall have been duly filed in court. Rule 3: Papers filed in proper person. Any bill or petition, or writing filed and addressed to the court, certi- fied by a judge or justice to have been acknowledged before him by the person whose name is subscribed thereto,the judge or justice stating in the certificate that such person is known to him, shall have the same effect as if signed and filed by an attorney of the court, or as if deliver- ed by the person to be filed. Rule 4: Exhibits to be filed. No attachment shall issue against any defendant to answer a bill or petition, nor shall injunction be granted until all the papers referred to as exhibits with the bill or petition, and made part thereof, shall be filed. Rule 5: Withdrawal of exhibits. A complainant, on giving his receipt to the clerk for the same, may obtain any exhibits, filed and referred to in the bill or petition and not admitted in the answer, if the complainant shall require the same for the purpose of proving them under a commission issued to take tes- timony in the cause, or in any other mode prescribed in the case. A defendant, upon an order from the court or from a judge, may obtain any exhibits for proof as aforesaid referred to in his answer, and con- nected with matter alleged in avoidance. Rule 6: Commissions to take testimony. Commissions issued for taking testimony within the United States shall be returned within four months from the day of their date, unless the distance exceed two hundred miles by the usual mail route; in that case six months, and if not so returned, a rule or order may be obtained for the return thereof by such day as shall be limited, or on application, such commission shall be declared void and a new commission issued, or other order as may appear proper. Provided that when such com- mission shall not be so. returned it shall prima facie be considered the 002 Frederick county equity rules. 903 fault of the party who had the carriage of said commission. Where a commission shall not be issued within twenty days from the date of the order or agreement for the same, the complainant shall be subject to the rule for further proceedings hereinafter mentioned. Other com- missions for taking testimony shall be subject to the special order of the court in the particular cases. Rule 7: Decrees of partition and dower. No final decree of partition, or of dower, shall be made on the report of commissioners, unless such report shall have been filed and shall have lain in the office during the first four days of the term, or unless the parties shall have certified in writing their approbation of the re- port. Provided, however, that any time after filing such report any party may obtain an order for ratifying it, unless cause be shown at such time, and on such notice as may be directed. Rule 8: Decree on award. On motion or application, a decree will be passed upon any final award rendered by the referees appointed by the rule of court and with the consent of parties; provided, such award shall have been filed and docketed, and shall have lain in court the first four days of a term, and that no exception shall have been made thereto; or provided, a copy of the award filed and docketed shall have been served on the opposite party, or his solicitor, at least ten days before such motion or applica- tion, and that no exception shall have been filed, to the award. Rule 9: Hearing. Causes set down for hearing and motions for dissolving injunctions will be taken up on application of either party, without regard to the numerical order on the docket. The court will hear the argument, or receive the notes of either party, or his solicitor at any time during the term; and if the opposite party or his solicitor shall not offer his ar- gument or notes before the close of the term, the court will proceed to decide the cause as if both parties had been heard; provided such op- posite party or his solicitor shall, before the close of the term, have been notified that the argument or notes aforesaid have been offered. On a case being argued as aforesaid by one party alone, the clerk shall place on the outside of the bundle of the papers of the case a memorandum of the day and side on which the case was argued or notes filed; and at the close of the term the clerk shall deliver to the court the papers in all cases so argued in order to the determination thereof. Rule 10: Attachments and certain orders. In cases where attachments are issued, the further process thereon must be required before the commencement of the term next after the return of such attachment, otherwise the party must resort to a new attachment. The like rule to be observed a-s to orders of publication and orders for taking bills pro confesso under the code. 904 Frederick county equity rules. Rule II : Abatement; new parties. Under the code, article 16, the proof of the right of the applicant, executor or administrator to appear, shall be an exemplification of the letters testamentary, or administration, or an affidavit of the death of the party, and the heirship (where the heirs are the applicants), and in addition to the affidavit of death of the party, devisees applying shall exhibit a certified copy of the will under which they claim. The court will order notice to be served on the opposite party of the admission of the personal representatives or heirs or devisees as parties, but such notice shall consist only of a copy of the order nisi, admitting the said parties. In such order the opposite party shall be allowed four days after service, to show cause against the admission. Rule 12: Hearing — absence of counsel. The absence of the counsel, except, in cases of sickness, or upon pro- fessional business, or of a party appearing without counsel, shall not be considered as a ground of continuance or postponement, and when two or more solicitors appear for any party, the attendance of one so- licitor or his ability to attend, shall be sufficient to prevent a continu- ance or postponement on account of the absence for any cause whatso- ever of the other solicitor. Rule 13: Service of rules and orders. No party nor his solicitor shall be bound to take notice of any rule or order made and docketed either in term or during vacation, relative to any suit, unless a copy of such rule or order be served on the said party as shall be by the court specially directed. Rule 14: Submission of causes. In the trial causes which may be submitted, the party submitting shall lodge in court notes or an abstract in each case, of the effect of the bill and a summary of the evidence, and the ground of law and fact on which he relies, on or before the second day of the term, and shall on or before the third day of the term, give notice to the opposite party, or his solicitor, of the submission of such cause. Rule 15: Testimony. On any application for discontinuance for want of testimony or any other cause, or on application to open or remand a commission, or to have a new commission issued for the purpose of taking further tes- timony, the opposite party may require proof by affidavit or otherwise, of the nature of the testimony wanted, and of the reasons which may have prevented its being produced in time. Rule 16: Motion to dissolve. On motions to dissolve injunctions, if the complainant shall not argue the same on the clay assigned for hearing, the opposite party may argue it orally or by notes on that day, or submit it to the court, and the court shall thereupon proceed to determine the said motion. Frederick county equity rules. 905, Rule 17: Rule further proceedings. At any stage of a cause where further proceedings are proper to be had on the part of the complainant, the defendant may obtain a rule for such further proceedings to be had by the fourth day of the term after that at which such rule shall be entered, and if the complainant shall not comply with such rule, his bill may, on application, be dismissed. Rule 18: Motion to dissolve. Where an answer shall be filed to an injunction bill admitting the equity thereof, and praying a dissolution of the injunction as to a part of the enjoined judgment not affected thereby, a motion for such dis- solution will be heard at the term next after filing the answer without notice to the opposite party of such motion. Rule 19: Ne exeat. A ne exeat shall be, by special order, dissolved upon the defendant filing a bond executed by himself and a surety or sureties approved by the court, in such penalty as the court shall direct, conditioned that in case the complainant shall obtain a decree in his favor, the said defend- ant shall obey, fulfill and perform the said decree, or render his body to the custody of the sheriff, to whom any writ or attachment of capias ad satisfaciendum shall be directed for compelling the defendant's per- formance of said decree. Rule 20: Commissions to trustees. On sales under decrees or orders of this court, the following allow- ances shall be made to trustees: On the first 300 dollars, On the second 300 " On the third 300 " On the fourth 300 " On the fifth 300 " On the sixth 300 " On the seventh 300 " On the eighth 300 " On the ninth 300 " On the tenth 300 " And three per cent, on all sums above three thousand dollars, besides an allowance for all expenses, except personal. The above may be les- sened in case of negligence, at the discretion of the court. Whenever a trustee shall advertise mortgaged premises under an or- der or decree of this court, and the defendant shall pay the amount due before sale, the trustee shall be allowed half commissions on the amount reported due, and the said allowance shall accordingly be ordered to be paid by the defendant. 7 per centum 6 " i< 5 " i < 4 " a 3i " " 3* " 1 1 3 " 1 1 3 " a 2\ " i i 2i " ti 906 Frederick county equity rules. Rule 21 : Allowance in lieu of dower. The allowance to a widow in lieu of her right of dower in lands sold under decrees shall be as follows, having due regard to her health and condition: If she be under 40 years, not more than 1-7. If above 40 and under 45, not more than 2-15. If above 45 and under 51, not more than 1-8. If above 51 and under 56, not more than 1-9. If above 56, not less than 1-10. Rule 22: Allowance to tenant by courtesy. The allowance to a healthy tenant by the courtesy in land sold under decree shall be as follows: If he be under 30 years of age not more than 3-8. If above 30 and under 40 years not more than 5-16. If above 40 and under 50 years not more than 3-16. If above 50 and under 60 years not more than 2-16. If above 60 not more than 1-9. Rule 23: Answer — further proceedings. On an answer being filed, it shall be the duty of the clerk to make a copy for the opposite party. The complainant shall have, after notice served on him of the answer having been filed, to except to the answer, after which time the complainant shall be subject to the rule for fur- ther proceedings. (Certain words are omitted in the printed copy of this rule.) Rule 24: Demurrer and plea. The complainant may set down the demurrer or plea to be argued, or he may take issue on the plea. If a plea or demurrer be overruled, no other plea or demurrer shall be received, but the defendant shall pro- ceed to answer the bill; and if he fail to do so within the time prescribed by the court upon overruling the plea or demurrer, the bill or so much thereof as was covered by the plea or demurrer, may be taken for con- fessed, and the matter thereof be decreed accordingly. Rule 25: Amendment of bill. If the defendant's answer be excepted to as insufficient, and the de- fendant submit to answer further, or the answer be adjudged insuffi- cient, the complainant may amend the bill by leave of the court, without cost, and the defendant shall answer the amended bill and exceptions together. Rule 26: Amendment of bill. If the defendant demur to a bill for any defect not embracing the equity of the whole bill, the complainant may amend with leave of the court at any time before, or at the argument of the demurrer upon pay- ment of costs at the discretion of the court. Frederick county equity rules. 907 Rule 27: Demurrer, plea and answer. The defendant may, at any time before the bill is taken for confessed, or afterward, with leave of the court, demur or plead to the whole bill or part of it, and he may demur to part, plead to part, and answer to the residue, but in any case in which the bill charges fraud or fraudu- lent actings, or combinations, a plea to such part of a bill, or to such bill, must be accompanied with answer fortifying the plea and explicitly denying the fraud and combination and the fact on which the charge was founded. Rule 28: Answer to cross-bill. When a cross bill shall be filed the defendant or defendants to the first bill shall answer thereto, before the defendant or defendants to the cross bill shall be compelled to answer to such cross bill. Rule 29: Testimony of aged witnesses, &c. Upon any bill and before the defendant has answered upon oath made, that any of the plaintiff's or defendant's witnesses are aged or infirm, or going out of the state, or that any one of them is a single witness to a material fact, the clerk may issue a commission to the com- missioners appointed by the court for taking the examination of such witness or witnesses, the party praying such commission giving such notice as the commissioners shall deem reasonable, to the adverse party, of the time and place of taking the depositions. Rule 30: Answer sworn to out of State. An answer sworn to out of the State will be received if sworn to be- fore a justice, certified to be so by a prothonotary or clerk of a court under his official seal, or by a notary public, or before a judge of any court whose official capacity shall be certified to by the clerk of his court under seal of office, or before a mayor or notary public. Rule 31: Hearing. When a commission and testimony under it shall be returned the cause may, after the commission and testimony shall have lain in court ten days, be set down for hearing forthwith, or at the term ensuing the expiration of said ten days, if that shall be in vacation. Rule 32: Auditor's proceedings. When a matter shall be referred to the auditor of the court to ex- amine and report thereon, he shall assign a day and place therefor and give reasonable notice to the parties of their solicitors, and if either party shall fail to attend at the time and place, the auditor may adjourn the examination of the matter to some future day, and must give notice thereof to the parties or their solicitors expressing therein that in de- fault of appearance of them or any of them at the time and place, the auditor will proceed ex parte, and accordingly upon such default he shall proceed to examine the matter and report to the court in order to such proceedings as the court shall deem right. 908 Frederick county equity rules. Rule 33: Petition for re-hearing. Every petition for a re-hearing shall contain the special matter or cause on which such re-hearing is applied for, shall be signed by the counsel, and the facts therein stated, if not apparent on the record, shall be verified by oath of the party or some other person. No re-hearing shall be granted after the fourth day of the term next after that when the decree shall be signed. Rule 34: Enforcing delivery of possession. If defendant or tenant coming in pendente lite, shall refuse to deliver possession of property sold under decree or order of court upon affi- davit made of the fact, the court will issue an order directing posses- sion to be given to the purchaser forthwith, unless cause be shown by a certain day to be limited in said order, and on refusal or neglect to comply with said order, a writ of habere facias possessionem shall forth- with be issued by the clerk. Rule 35: Deposit of money paid into court. All deposits of money and payment into court shall be made upon the order of the court or of a judge thereof, in some bank of the city of Frederick, and t!he money shall be deposited in the said bank by the clerk, who shall give his receipt therefor to the party, and the said clerk shall require an account with the case to be immediately opened at the bank upon receiving the deposit, and the clerk shall open a like account in a book to be kept by him, in which he shall transcribe the entries made by the bank respecting the money deposited to the credit of the cause and of said account. No money deposited or paid into court as aforesaid shall be paid out, except upon the order of the court, or of a judge thereof, which shall authorize the clerk to draw a check upon the bank, payable to the order of the applicant, and the receipt of the applicant for the said check shall be taken by the clerk on the account in his book aforesaid, in which account the clerk shall copy all the orders of the court or of any judge as aforesaid for payments, and the orders and checks aforesaid, shall be delivered to the bank as the only vouchers to authorize the bank to make the payments afore- said. The clerk shall keep an alphabetical index to said book. The clerk shall deliver a copy of this rule to the bank in which the deposits shall be made. Rule 36: Annual reports by guardians, etc. All guardians, receivers and committees of lunatics or idiots, who have been or may be appointed by this court, if the clear annual value of the estate committed to their management exceeds the sum of two hundred dollars, shall at least once in every year, and if of a less value, at least once in every two years, if the court shall not otherwise direct, exhibit to the court and file with the clerk an account of their guardian- ship, or other trusts, and of the balance of money that may then be in their hands respectively, that this court may take proper order for the Frederick county equity rules. 909 disposition and improvement thereof. The clerk, who shall enter the appointment of such guardians, receivers anfl committees, shall furnish them, upon such appointment, with a certified copy of this rule. It shall be the duty of the clerk to report to the court all failures of guar- dians, receivers and committees aforesaid, to comply with this rule im- mediately upon the expiration of the period aforesaid, and the court will, by order and attachment, enforce the account aforesaid. Rule zj: Receipts to trustees. Original receipts and acquittances given to trustees and lodged for record in the clerk's office, shall be returned to the said trustees after they shall have been recorded. Rule 38: Withdrawing papers. The solicitor, auditor, or referees in any case may take out equity papers, after answer filed, by giving a receipt therefor; provided, that they be not kept by the solicitor more than ten days. Rule 39: Interlocutory and decretal orders. Ordered that all interlocutory orders and decretal orders may be passed, and injunctions granted by any one judge of the judicial circuit during vacation. Rule 40: Adjournment of court. Ordered, that during the terms of this court, the court may adjourn the term to any day in vacation, and adjourn from time to time, and upon such days as the court may order, and that in case of the absence, sickness, or death of the judge, the clerk may open and adjourn the equity term from the day of opening the court, appointed by the court, till the court shall appear and hold the court. Rule 41: Decrees in cases submitted. Ordered, that decrees will be passed in all cases submitted for a hearing, either by consent of parties or their solicitors, in cases where defendants of full age have, by answer or otherwise, assented to a de- cree after process returned and answer filed, even before return day of process during the terms aforesaid, or upon any day to which the term shall have been adjourned. Rule 42: Taking testimony. Either party in any action, desiring to take testimony under a com- mission under the 19th section of article 35 of the 1st volume of the Maryland code, shall cause the commissioner or commissioners to give the opposite party notice, not less than five days from the date of said notice; provided, such notice be served on the opposite party not less than three days before the time appointed for taking such tes- timony. 910 Frederick county equity rules. Rule 43: Ratification of sales. Sales of personal property by trustees may be finally ratified without publication, but no final ratification of a trustee's report of sales of real estate will be made until after three week's publication of an order nisi thereon in one or more newspapers printed or published in Frederick county,, but said sales may be ratified immediately by consent of parties in writing. It is ordered, that no final ratification of any sale made by a trustee under a decree in equity, of any property in which an infant or infants are in any wise interested, shall be made by consent of par- ties. The ratification shall take place only upon the usual notice pub- lished in one or more newspapers, as the court may, by its order, direct. Rule 44: Ratification of auditor's report. No report of the auditor, unless otherwise ordered by the court for special cause, shall be finally ratified, unless a provisional order of rati- fication be first passed and published in one or more newspapers pub- lished in Frederick county, and if the court shall so determine, in other places, at least once a week for two successive weeks before the final ratification of such audit or other report as the case may be; provided such report of the auditor shall first lie in the clerk's office for at least twenty days prior to final ratification; and provided further that when all the parties are of full age and shall consent thereto, signed by them or their solicitors in writing, such report of the auditor may be ratified by the court immediately. Rule 43: Order of publication. In all suits in chancery against non-residents or against persons who may be proceeded against as if they were non-residents, the notice to be given by publication shall be a notice inserted once a week in each of four successive weeks in some newspaper published in said county, stating the substance and object of the bill or petition and warning the non-resident defendants or defendant to appear in this court on a day named in such notice; which day shall be the sixteenth day after the expiration of said four successive weeks. EQUITY RULES OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. Adopted June 7, 1894. Rule i: Return day. The first day of each term shall be the return day for equity process-. Rule 2: Bill and petition to be filed. No bill nor petition ghall be laid before the court until it shall have been duly filed in court. Rule 3: Papers filed in proper person. Any bill or petition, or writing filed and addressed to the court, cer- tified by a judge or justice to have been acknowledged before him by the person whose name is subscribed thereto, the judge or justice stating in the certificate that such person is known to him, shall have the same effect as if signed and filed by an attorney of the court, or as if delivered by the person to be filed. Rule 4: Exhibits to be filed. No attachment shall issue against any defendant to answer a bill or petition, nor shall injunction be granted until all the papers referred to as exhibits with the bill or petition, and made part thereof, shall be filed. Rule 5: Withdrawal of exhibits. A complainant, on giving his receipt to the clerk for the same, may obtain any exhibits filed and referred to in the bill or petition and not admitted in the answer, if the complainant shall require the same for the purpose of proving them under a commission issued to take testi- mony in the cause, or in any other mode prescribed in the case. A defendant, upon an order from the court or from a judge, may obtain any exhibits for proof as aforesaid referred to in his answer, and con- nected with matter alleged in avoidance. Rule 6: Commissions to take testimony. Commissions issued for taking testimony within the United States Shall be returned within four months from the day of their date, unless the distance exceed two hundred miles by the usual mail route, in that case six months, and if not so returned, a rule or order may be obtained for the return thereof by such day as shall be limited, or on appli- cation, such commission shall be declared void and a new commission 911 912 Montgomery county equity rules. issued, or other order as may appear proper; provided that when such commission shall not be so returned it shall prima facie be con- sidered the fault of the party who had the carriage of said commission. Where a commission shall not be issued within twenty days from the date of the order or agreement for the same, the complainant shall be subject to the rule for further proceedings hereinafter mentioned. Other commissions for taking testimony shall be subject to the special order of the court in the particular cases. Rule 7: Decrees of partition and dower. No final decree of partition or of dower shall be made on the report of commissioners, unless such report shall have been filed and shall have lain in the office during one whole term, or unless the parties shall have certified in writing their approbation of the report; provided, however, that any time after filing such report any party may obtain an order for ratifying it, unless cause be shown at such time and on such notice as may be directed. Rule 8: Decree on award. ' On motion or application, a decree will be passed upon any final award rendered by the referees appointed by the rule of court and with the consent of parties; provided, such award shall have been filed and docketed, and shall have lain in court the first four days of a term, and that no exception shall have been made thereto; or provided, a copy of the award filed and docketed shall have been served on the opposite party, or his solicitor, at least ten days before such motion or application, and that no exception shall have been filed to the award. > Rule 9: Hearing. Causes set down for hearing and motions for dissolving injunctions will be taken up on application of either party, without regard to the numerical order on the docket. The court will hear the argument, or receive the notes of either party, or his solicitor at any time during the term; and if the opposite party or his solicitor shall not offer his argu- ment or note, before the close of the term, the court will proceed to decide the cause as if both parties had been heard; provided such op- posite party or his solicitor shall, before the close of the term, have been notified that the argument or notes aforesaid have been offered. On a case being argued as aforesaid by one party alone, the clerk shall place on the outside of the bundle of the papers of the case a memorandum of the day and side on which the case was argued or notes filed, and at the close of the term the clerk shall deliver to the court the papers in all cases so argued in order to the determination thereof. Rule 10: Attachments and certain orders. In cases where attachments are issued, the further process thereon must be required before the commencement of the term next after the return of such attachment, otherwise the party must resort to a new Montgomery county equity rules. 913 attachment. The like rule shall be observed as to orders of publication and orders for taking bills pro confesso under the code. Rule ii : Abatement; new parties. Under the code, article 16, the proof of the right of the applicants executor or administrator to appear, shall be an exemplification of the letters testamentary, or administration, or an affidavit of the death of the party, and the heirship (where the heirs are the applicants), and in addition to the affidavit of the death of the party, devisees applying shall exhibit a certified copy of the will under which they claim. The court will order notice to be served on the opposite party of the admission of the personal representatives or heirs or devisees as par- ties, but such notice shall consist only of a copy of the order nisi, admit- ting the said parties. In such order, the opposite party shall be allowed four days after service to show cause against the admission. Rule 12: Hearing— absence of counsel. The absence of the counsel, except in cases of sickness, or upon pro- fessional business, or of a party appearing without counsel, shall not be considered as a ground of continuance or postponement, and when two or more solicitors appear for any party, the attendance of one solicitor or his ability to attend shall be sufficient to prevent a contin- uance or postponement on account of the absence for any cause what- soever of the other solicitor. Rule 13: Service of rules and orders. No party nor his solicitor shall be bound to take notice of any rule or order made and docketed either in term or during vacation relative to any suit, unless a copy of such rule or order be served on the said party as shall be by the court specially directed. Rule 14: Submission of causes. In the trial causes which may be submitted, the party submitting shall lodge in court notes or an abstract in each case of the effect of the bill and a summary of the evidence, and the ground of law and fact on which he relies, on or before the second day of the term, and shall on or before the third day of the term give notice to the opposite party, or his solicitor, of the submission of such cause. Rule 15: Testimony. On any application for discontinuance for want of testimony or any other cause, or on application to open or remand a commission, or to have a new commission issued for the purpose of taking further testi- mony, the opposite party may require proof by affidavit or otherwise of the nature of the testimony wanted and of the reasons which may have prevented its being produced in time. 57 914 Montgomery county equity rules. Rule 16: Motion to dissolve. On motions to dissolve injunctions, if the complainant shall not argue the same on the day assigned for hearing, the opposite party may argue it orally or by notes on that day or submit it to the court, and the court shall thereupon proceed to determine the said motion. Rule 17: Rule further proceedings. At any stage of a cause where further proceedings are proper to be had on the part of the complainant, the defendant may obtain a rule for such further proceedings to be had by the fourth day of the term after that at which such rule shall be entered, and if the complainant shall not comply with such rule, his bill may, on application, be dis- missed. Rule 18: Motion to dissolve. Where an answer shall be filed to an injunction bill admitting the equity thereof and praying a dissolution of the injunction as to a part of the enjoined judgment not affected thereby, a motion for such disso- lution will be heard at the term next after filing the answer without notice to the opposite party of such motion. Rule 19: Ne exeat. A ne exeat shall be, by special order, dissolved upon the defendant filing a bond executed by himself and a surety or sureties approved by the court, in such penalty as the court shall direct, conditioned that in case the complainant shall obtain a decree in his favor, the said defend- ant shall obey, fulfil and perform the said decree, or render his body to the custody of the sheriff, to whom any writ or attachment of capias ad satisfaciendum shall be directed for compelling the defendant's perform- ance of said decree. Rule 20: Commissions to trustees. On sales under decrees or orders of this court, the following allow- ances shall be made to trustees: On the first 300 dollars, 7 per centum. On the second 300 dollars, 6 per centum. On the third 300 dollars, 5 per centum. On the fourth 300 dollars, 4 per centum. On the fifth 300 dollars, 3% per centum. On the sixth 300 dollars, 3% per centum. On the seventh 300 dollars, 3 per centum. On the eighth 300 dollars, 3 per centum. On the ninth 300 dollars, 2% per centum. On the tenth 300 dollars, 2Y2 per centum. And three per cent, on all sums above three thousand dollars, besides an allowance for all expenses except personal. The above may be lessened in case of negligence, at the discretion of the court. Whenever a trustee shall advertise mortgaged premises under an order or decree of this court, and the defendant shall pay the amount Montgomery county equity rules. 915 due before sale, the trustee shall be allowed half commissions on the amount reported due, and the said allowance shall accordingly be or- dered to be paid by the defendant. Rule 21 : Allowance in lieu of dower. The allowance to a widow in lieu of her right of dower in lands sold under decrees shall be as follows, having due regard to her health and condition: If she be under 40 years, not more than 1-7. If above 40 and under 45, not more than 2-15. If above 45 and under 51, not more than 1-8. If above 51 and under 56, not more than 1-9. If above 56 not less than 1-10. Rule 22: Allowance to tenant by curtesy. The allowance to a healthy tenant by the curtesy in land sold under decree shall be as follows: If he be under 30 years of age, not more than 3-8. If above 30 and under 40 years, not more than 5-16. If above 40 and under 50 years, not more than 3-16. If above 50 and under 60 years, not more than 2-16. If above 60 years, not more than 1-9. Rule 23: Demurrer and plea. The complainant may set down the demurrer or plea to be argued, or he may take issue on the plea. If a plea or demurrer be overruled, no other plea or demurrer shall be received, but the defendant shall pro- ceed to answer the bill; and if he fail to do so within the time pre- scribed by the court upon overruling the plea or demurrer, the bill or so much thereof as was covered by the plea or demurrer may be taken for confessed, and the matter thereof be decreed accordingly. Rule 24: Amendment of bill. If the defendant's answer be excepted to as insufficient, and the defendant submit to answer further, or the answer be adjudged insuffi- cient, the complainant may amend the bill by leave of the court, with- out cost, and the defendant shall answer the amended bill and excep- tions together. Rule 25: Amendment of bill. If the defendant demur to a bill for any defect not embracing the equity of the whole bill, the complainant may amend with leave of the court at any time before or at the argument of the demurrer upon pay- ment of costs at the discretion of the court. Rule 26: Demurrer, plea and answer. The defendant may, at any time before the bill is taken for confessed, or afterward, with leave of the court, demur or plead to the whole bill 916 Montgomery county equity rules. or part of it, and he may demur to part, plead to part, and answer to the residue, but in any case in which the bill charges fraud or fraudu- lent actings or combinations, a plea to such part of a bill or to such bill must be accompanied with answer fortifying the plea and explicitly denying the fraud and combination and the fact on which the charge was founded. Rule 27: Answer to cross-bill. When a cross bill shall be filed, the defendant or defendants to the first bill shall answer thereto before the defendant or defendants to the cross bill shall be compelled to answer to such cross bill. Rule 28: Testimony of aged witness, etc. Upon any bill filed, and before the defendant has answered, upon oath made that any of the plaintiff's or defendant's witnesses are aged or infirm or are going out of the State, or that any one of them is a single witness to a material fact, the court may pass an order directing the examiners appointed by this court, or either of them, to take the testimony of such witness or witnesses, the party praying such order giving such notice to the adverse party as the examiner or examiners shall deem reasonable. Rule 29: Answers sworn to out of State. An answer sworn to out of the State will be received if sworn to before a justice, certified to be so by a prothonotary or clerk of a court under his official seal, or by a notary public, or before a judge of any court whose official capacity shall be certified to by the clerk of his court under seal of office. Rule 30: Hearing. When a commission and testimony under it shall be returned, the cause may, after the commission and testimony shall have lain in court ten days, be set down for hearing forthwith, or at the term ensuing the expiration of said ten days, if that shall be in vacation. Rule 31 : Auditor's proceedings. When a matter shall be referred to the auditor of the court to ex- amine and report thereon, he shall assign a day and place therefor and give reasonable notice to the parties or their solicitors, and if either party shall fail to attend at the time and place, the auditor may ad- journ the examination of the matter to some future day, and must give notice thereof to the parties or their solicitors, expressing therein that in default of appearance of them or any of them at the time and place, the auditor will proceed ex parte, and accordingly upon such default he shall proceed to examine the matter and report to the court in order to such proceedings as the court shall deem right. Rule 32: Petition for rehearing. Every petition for a rehearing shall contain the special matter or Montgomery county equity rules. 917 cause on which such rehearing is applied for, shall be signed by the counsel, and the facts therein stated, if not apparent on the record, shall be verified by oath of the party or some other person. No re- hearing shall be granted after the fourth day of the term next after that when the decree shall be signed. Rule 33: Enforcing delivery of possession. If defendant or tenant coming in pendente lite, shall refuse to deliver possession of property sold under decree or order of court upon affidavit made of the fact, the court will issue an order directing possession to be given to the purchaser forthwith, unless cause be shown by a certain day to be limited in said order, and on refusal or neglect to comply with said order, a writ of habere facias possessionem shall forthwith be issued by the clerk. Rule 34: Deposit of money paid into court. All deposits of money and payment into court shall be made upon the order of the court or of a judge thereof, in some bank in the town of Rockville, and the money shall be deposited in the said bank by the clerk, who shall give his receipt therefor to the party, and the said clerk shall require an account with the case to be immediately opened at the bank upon receiving the deposit, and the clerk shall open a like account in a book to be kept by him, in which he shall transcribe the ent r ies made by the bank respecting the money deposited to the credit of the cause and of said account. No money deposited or paid into cou^t as aforesaid shall be paid out except upon the order of the court or of a judge thereof, which shall authorize the clerk to draw a check upon the bank, payable to the order of the applicant, and the receipt of the applicant for the said check shall be taken by the clerk on the account in his book aforesaid, in which account the clerk shall copy all the orders of the court or of any judge as atoresaid for payments, and the orders and checks aforesaid shall be delivered to the bank as the only vouchers to authorize the bank to make the payments aforesaid. The clerk shall keep an alphabetical index to said book. The clerk shall deliver a copy of this rule to the bank in which the deposits shall be made. Rule 35: Annual report of guardians, etc. All guardians, receivers and committees of lunatics, or idiots, who have been or may be appointed by this court, if the clear annual value of the estate committed to their management exceeds the sum of two hundred dollars, shall at least once in every year, and if of a less value, at least once in every two years, if the court shall not otherwise direct, exhibit to the court and file with the clerk an account of their guard- ianship, or other trusts, and of the balance of money that may then be in their hands respectively, that this court may take proper order for the disposition and improvement thereof. The clerk, who shall enter the appointment of such guardians, receivers and committees, shall furnish them, upon such appointment, with a certified copy of this rule. 918 Montgomery county equity kules. It shall be the duty of the clerk to report to the court all failures of guardians, receivers and committees aforesaid to comply with this rule immediately upon the expiration of the period aforesaid, and the court will, by order and attachment, enforce the account aforesaid. Rule 36: Receipts to trustees. Original receipts and acquittances given to trustees and lodged for record in the clerk's office shall be returned to the said trustees after they shall have been recorded. Rule 37: Withdrawing papers. The solicitor, auditor or referees in any case may take out equity papers, after answer filed, by giving a receipt therefor; provided, that they be not kept by the solicitor more than ten days. Rule 38: Interlocutory and decretal orders. All interlocutory and decretal orders may be passed, and injunctions granted by any one judge of the judicial circuit during vacation. Rule 39: Adjournment of court. During the terms of this court, the court may adjourn the term to any day in vacation, and adjourn from time to time and upon such days as the court may order, and in case of the absence, sickness or death of the judge, the clerk may open and adjourn the equity term from the day of opening the court, till the judge shall appear and hold the court. Rule 40: Decrees in cases submitted. Decrees will be passed in all cases submitted for a hearing, either by consent of parties or their solicitors, in cases where defendants of full age have, by answer or otherwise, assented to a decree after process returned and answer filed, even before return day of process during the terms aforesaid or upon any day to which the term shall have been adjourned. Rule 41 : Taking testimony. Either party to any action depending in this court may, upon five day's previous notice to the opposite party, take the testimony of any witness or witnesses under the 19th section of article 35 of the code of public general laws of Maryland. Rule 42: Ratification of sales. Sales of personal property by trustee may be finally ratified without publication, but no final ratification of a trustee's report of sales of real estate will be made until after three week's publication of an order nisi thereon in one or more newspapers printed or published in Mont- gomery county, but said sales may be ratified immediately by consent of parties in writing. No final ratification of any sale made by a trustee under a decree in equity, of any property in which an infant or infants are in any wise interested, shall be made by consent of parties. The Montgomery county equity rules. 919 ratification shall take place only upon the usual notice published in one or more newspapers, as the court may, by its order, direct. Rule 43: Ratification of auditor's report. No report of the auditor, unless otherwise ordered by the court for special cause, shall be finally ratified, unless an order nisi be first pub- lished in one or more newspapers in Montgomery county once in each of three successive weeks before said final ratification, or unless said report shall have lain in court one whole term, or unless the parties interested in said audit shall file their consent in writing to such rati- fication. INDEX. [References are to the pages.] ABATEMENT. of suit, definition and nature of, 251 mode of reviving equity suit in Federal courts, 253, note I effect of reviving suit, 251, note 4 former causes of, 251 insolvency and bankruptcy, effect of on suit, 251, note 5 death of party as cause, 251-252 in creditors' suit death of plaintiff, 252, note 6, 471, and note 2 in cases where injunction granted, 252, note 6 death of party no longer a cause of, 252-253 code provisions as to making new parties, 253, and note 1, 103 filing suggestion of death of party, 253 suggestion of death filed by plaintiff or defendant, 259 representative of deceased may suggest his death, 253-254 proceeding on failure of deceased to appear, 254, note 3 purpose of statutes as to suggesting death of party, 254 bill of revivor may be used, 254 who may use statute as to making of new parties, 254-255 statutory proceedings used, when, 255 death after case set down for hearing or submitted, and before decree, 255, 315, note 8 death of defendant after decree for account, sale or partition, 255, and note 5 death of defendant after proceedings warranting decree, 255, and note 2 death after answer confessing facts or making no defence, 255 death of executor or administrator, parties, 256 representative of deceased secreting himself or evading pro- cess, 256 death when appeal prayed to court of appeals, 256 old method of reviving suit abating after final decree, 256, and note 1 present statute as to death after final decree, 256-257 court should be informed of death of party after decree, 257 j statute confined to cases of death, 257 statute as to decrees subject to statute of limitations, 257 decree barred by limitations revived, 257, note 4 death after decree does not of necessity make revival neces- sary, 257 revival is in discretion of court, 257 death of party after decree for sale, 257, note 5, 599, note 1 Index. 921 [References are to the pages.] ABATEMENT— continued. revivor of decree to recover costs, 257 parties to proceedings to revive, 258 proper legal representatives must be made parties, 258 proceedings by or against those in privity with deceased, 258 whose duty it is to revive suit, 258 reviving suit when some of plaintiffs refuse to join, 258, note 6 defendants may revive suit, when, 258, 259, note 3 revivor by defendant of adverse decree, 259 proof of right to revive, 259 by marriage of female plaintiff, 251, 252, 260 marriage of female defendant did not cause, 260 suit revived by bill of revivor when abated by marriage, 260 after decree, suit abated by marriage, revived by subpoena scire facias, 260 no suit now abated by marriage of any party, 260 pleadings amended so as to include parties made necessary or proper by marriage, 260 the latest statute, short petition, 260 injunction cases, 714-715, and note 1 ACCOUNT. see "bill for account" stated, plea of, 192 cross-bills in action for, 242, note 4 dismissal of bill after decree for, 299, note 2 retaining bill to allow statement of, 323 appeal from order directing, 396 of rents and profits in creditors' bill on deficiency of assets, 455, and note 3 decree for against executor in creditors' suit, 465, and note I decree for in foreclosure by formal proceedings, 530, and note 5 ACCOUNT, BILL FOR; see "Bill for account." ACT TO DIRECT DESCENTS; see "Partition under act to DIRECT DESCENTS." ACTORS; see "Bill for account." ADMINISTRATOR. ' as representative party, 39 and note 5 when a party, 5°-5i. and note 1 when necessary party, 50-51, and notes 2, 3 as party in creditors' suit, 70-71. and notes when a party in proceedings to revive, 258, 51, note 2 order directing, to bring money into court, not appealable, 384, note 4 ADMISSIONS. by demurrers, 171-172, and notes by pleas, 185 922 Indfx. [References are to the pages.] ADMISSIONS— CONTINUED. by answers, see "answers" of infants not binding, 212, note 1 of guardians, of no effect, 213 and note 2 of guardians and committees in creditors' suits, 462, note 4 issuance by consent of commission to take testimony, 263, note 1 order of court upon admissions in the case, 312 when case heard on bill and answer, 317-318 by receiver, not binding on creditor, 721, note 3 ADOPTION. the act of 1892, ch. 244, 820 effect of decree, 820 instances of, in Baltimore city, 821, note 1 to sec. 718 AFFIDAVIT. by next friend for removal of cause, 16 to bill, when required, ill, 112 and note 5 demurrer for want of, 112, and note 6 to demurrer as to delay, 176 to motion for amendment to answer, 240 to application for taking additional testimony in Baltimore city, 276, note 7 to petition, when required, 306, note 5 form of, 312, note 5 to application for postponement or continuance, 315, note 9 to petition for rehearing, 356, 357, note 10 to petition for bill of review for newly discovered evidence, 366 and note 3 to answer, 210-21 1 to answer in granting injunction, 393 to answer to motion for dissolution of injunction, 393-394, and note 4 with appeal bond, to stay execution, 418 of fraud or mistake as to time of taking appeal, 442-443 to voucher of claims of creditors, 467, 469, and note 1 in trustees report of sale, 581-582 in foreclosure of mortgages, 547, 560 in bill for injunction, 692-693; see "injunctions" in bill for receiver, 729 \ in bill to perpetuate testimony, 816 in bill to take testimony de bene esse, 816 in bill of interpleader, 827, and note 2 answer as in certain cases, 210, 704, 731 ALIEN ENEMY. may not sue, 13 as defendant, 18, note 1 wife of may answer as feme sole, 212, note 4 Index. 923 [References are to the pages.] ALIMONY. enforced by attachment for contempt, 303-304, and note 4 proceedings for contempt, 304, note 5 AMENDED BILL. answer to, 203 proceedings when case materially altered by amendment, 203 original bill and its amendments, or original and, form one record, 236 proceedings are on, after amendment of original bill, 236 may be taken as substitute for original bill, 237 amendment does not alter time of filing of original bill, 237 suit as amended dates from time of amendment, 237 proceedings on answer, plea or demurrer to, 237 creditor coming in creditors' suit by, 467, note 2 AMENDMENT. see "pleadings'' see "amendment of bill" see "amendment of answer' - how notice of given, 147, note 6 of pleas, 191, note 5 method of making, 240 short and unimportant, made by interlineation, 240 long, made by filing new bill, 240 of pleadings, right to, 230-231 at the hearing, 230, note 7 discretionary with court, 231, 386 after lapse of time or when inconvenience or expense would ensue, 231 no appeal from action of court granting or refusing, 232 to bring in new parties made necessary or proper by marriage, 260 retaining bill after plea or demurrer allowed, 322-323 remand of cause for, 423 and note 1 of record by agreement of counsel, on appeal, 447 of claim, after filing, 641, note 3 AMENDMENT OF ANSWER. defendant no absolute right to, 237 leave for, granted under peculiar circumstances, 237 amended answer filed without leave of court, 237 when allowed, 237 new matter coming to knowledge after answer, 237-238 as to matter of form, verbal inaccuracies, etc., 238, note 4 in case of surprise or mistake, 237 to explain ambiguous word, 238-239 not allowed for retracting clear admission, 195, note 1, 237, note 3 supplemental answer instead of, 238, note 3 924 Index. [References are to the pages.] AMENDMENT OF ANSWER— continued. allowed after decision of cause announced, 239, note 4 discretionary with court, 239, 286 procedure on applying for, 239-240 AMENDMENT OF BILL. see index to equity rules; "amendment of bill" for want of parties, 91, 133 when bill brought by married woman without next friend, 715, note 1 to embrace admissions in answer, 121, note 2, 783, note 3 after allowance of plea, 187, and notes 1, 2 leave of court necessary, 232 after allowance of demurrer to whole bill, 175, 232, note 2 to sec. 184, 233, note 4 applied for by petition, 232 time within which made, 232 right to contest, reserved to defendant, 232 after allowance of demurrer or plea, 232-233 when made necessary by allegations in answer, 233 abandonment of leave, 233 notice of, 233 proceedings on default of answer to, 233 proceedings on answer plea or demurrer to, 233 for what purposes allowed, 233 and note 1 for defect in proper parties, 233, 234 remanding of cause to have proper parties made, 234 by striking out parties plaintiff, 234, note 2 for defect in prayer for relief, 233 for omission or mistake in fact connected with, but not forming substance of case, and instances, 233-235 new case may not be made by, 235, and note 1 remand not ordered if new bill or one inconsistent in its parts must be made, 235-236 not allowed if bill made multifarious thereby or beyond juris- diction of equity, 236 nothing occurring after original bill filed may be added by, 236 title acquired after original bill filed may not be availed of by, 236 in injunction cases, 697-698 AMICABLE SUITS. appearance gratis in, 150, note 7 ANSWER. see also "disclaimer" see "amendment of answer" in injunction and receivership cases, see those titles not necessary to pray that defendants be required to, 130, note 13 Index. 925 [References are to tne pages.] ANSWER— CONTINUED. under oath, prayer for, 130, note 13 when to be used instead of plea, 183, note 6 overruling demurrer or plea, 173, note 1 upon overruling demurrer, 174 the answer in general, 193-195 controverts facts in bill and states others, 193, 182, note 5 admitting facts of bill considered as true, 193 in such case no proof necessary, 195-196 if facts of bill not admitted, replication follows, 193 general reservation in, 193, note 1 general traverse at end of, old practice, 194, note 1 answers of non-residents, old practice, 194, note 1 to sec. 153 two parts of, 194 double office performed by, 194, and- notes 2, 3 discovery in, 194, and note 4, 839-840 matters in avoidance, 194-195 matters responsive and in avoidance, 195, and note 6 how far responsive, 195 instances of responsive, or otherwise, 195, note 8 admissions in, 195 are binding, 195, 193, 183, note 3 may not be retracted by amendment, 195, note 1 no proof necessary if facts of bill admitted, 195-196, and note 2 plaintiff not bound to read whole, 196 portion of, to fix admissions on defendant, 196 rule as to reading passages from, 196, note 3 matters in avoidance cannot extricate from admissions, 196 detached sentences cannot be used in fixing liability, 196 as evidence in another and distinct case, 196, note 6 relief upon admissions in, 196, note 6 answer must be full, 196-198 must admit or deny all facts stated in bill, 196-197, and note 2 not limited to interrogatories of bill, 197 general denial of allegations insufficient, 197, and note 5 evidence to allegations not made in, 198, and notes 6, 7 need not be full, Where protection could be had by plea or de- murrer, 198 any defence to merits which could be raised by demurrer or plea, may be made in, 198, note 8 incriminating matters may be omitted, 198, note 8 confidential communications, and matters of public nature, 199, note 8 scandalous inquiries, 199, note 8 not required when subjecting defendant to penalty, etc., 199, note 8 see also "bill of discovery" 926 Index. [References are to the pages.] ANSWER— CONTINUED. failure to answer fully not an admission, 199 silence not an admission, 199 allegations of bill must be proven, if not admitted or denied, 199 neglect to answer throws suspicion on defendant, 200 defendants ignorant of matters in bill, 200 common form of infants' and lunatics', 200, note 7 exceptions, 200-202 on motion to dissolve injunction, 706 two kinds of exceptions, 200, note 1 object of exceptions, 200, note 1 nature of, 201, note 4 insufficiency cannot be raised by demurrer, 201 insufficiency as to material allegations, &c, 201, 202 joining issue upon, is waiver of objection, 201, note 2 co-defendants cannot complain if plaintiff accepts defective, 201, note 2 solicitor's fee, on exceptions, 201, note 2, 672-673, note 2 new exceptions, 201, note 4 exceptions should be disposed of before decree, 201, note 4 bill must not be ambiguous, if plaintiff excepts to, for insuffi- ciency, 202 exceptions do not lie to matter in avoidance, 202 insufficient, are no answers, 202 costs of exceptions to, to prevailing party, also counsel fee, 202, 201, note 2 order for more perfect, enforced by attachment, or bill taken pro confesso, 202 do not lie to answer of infant by guardian, 202, and note 11, 212, note 1 to answer of married woman jointly with husband, 202, and note 11 answer to amended or supplemental bill, 203-204 amended bill, defendant required to answer, 203 proceedings on default of, to amended bill, 233 second answer confined to new part of amended bill, 203 altering original answer in answering amended bill, 203 if original bill, not answered, no new subpoenas required^ 203 if original bill answered, subpoena or publication, 203 when bill is materially changed by amendment, 204 new party, brought in by supplemental bill, alone should re- spond to i*-, 204 defendant not affected by amendment, need not answer amend- ed bill, 204 answers to interrogatories, 204-205 must be answered, 204 Index. 927 [References are to the pages.] ANSWER— CONTINUED. what interrogatories defendant may decline to answer, 204 equity rule as to declination to answer, 204, note 3 see also " bill of discovery'' notice of interrogatories, 205 answer compelled by attachment, 205 when answer to be made, 205 answer under oath as evidence, 205-206 former effect of answer under oath, 205 rule as to two witnesses, or one, with corroborating circum- stances, 205-206 pregnant circumstances alone, insufficient to disprove, 206, note 2 averment of ignorance in, puts plaintiff to proof of bill, 206 cases to which rule was intended to apply, 206, note 5 instances where the rule did not apply, 206-207, note 5, 824, note 10 in injunction cases, see "injunctions'' not evidence of matter in avoidance, 207 matters in avoidance require independent proof, 207 the rules changed by statute, 208 legislation concerning rule as to two witnesses, 208-209 answer not evidence, but merely a pleading unless, etc., 209 the present code provisions; equity rule; 209-210 the statute and rule stated, 209-210 effect of on motion to dissolve injunction or to discharge re- ceiver, 209, 703-704, 708-709, 731 effect of in petition for writ of habere facias possessionem, 209, 532-533, notes 4, 5 effect of in plenary proceedings in orphans' court, 209 as evidence when case heard on bill and answer, 208, 210, 319- 321 as evidence so far as responsive to specified interrogatories, 210 when may be treated as affidavit, 210 affidavit to answer, 210-21 1 in injunction cases, see "injunctions'" when necessary, 210, and note 1 before whom affidavit made, 210, note 1 omission of oath, by consent, 210, note 1 waiver of informality as to oath, 210, note 1 effect of omission of oath, 210-211 husband and wife, 211-212 of married women, joint with husband, 211, and note 2 when wife may answer separately, 211 when wife may answer as feme sole, 212 and note 4 infants and non-sane persons, 212-214 of infants made by guardian or guardian ad litem, 212 928 Index. [References are to the pages.] ANSWER — CONTINUED. of infants cannot be excepted to for insufficiency, 212, note 1 admissions made by infants not binding, 212, note 1 when made by guardian, not evidence against infants, 212 admissions by guardians of no effect, 213, and note 3 in creditors' bills, answer of guardian, 213, note 3, 462, note 4 allegations in, to be established, 213-214 of lunatics, made by committee, or guardian ad litem, 214 executors and administrators, 214-215 of executors, may be upon their belief, 214 of administrator taken as true on hearing on bill and answer, 214, note 3 of corporation to be under oath when individuals should be, 214 corporate seal does not take place of oath, 214 co-defendants, 215-216 may be joint, or separate, 215, and note 1 defendant may refer to and adopt co-defendant's, 215 how defendant may compel answer from tardy co-defendant 215, note 2, 300 of one defendant cannot be read against co-defendant, 215, 216 foundation of rule forbidding answer of defendants from being read against co-defendants, 216, and note 7 of partners may be read against each other, 217, note 7 of officers may be read against corporation, 217, note 7 time allowed for; proceedings on default, 217-218 time for putting in, 217 defendant may put in immediately, 217 default of, bill taken pro confesso, 217, and note 4, 342 defendant leaving State after appearance, but before answer, decree pro confesso against, 341 other proceedings on default in, 218, note 5 miscellaneous, 218 may insist upon all defences available by demurrer or plea, 218 to be paragraphed and numbered, 218 objection to, how taken, 218, note 2 leave to withdraw, and file demurrer or plea, 218 sometimes treated as demurrer, 218 demurrer amended so as to be, 218 should not set up inconsistent defences, 218 signature of proper parties to, 218 signature of solicitor required, 218, note 7 after passage of order to take bill pro confesso, 344-345 order requiring, by certain day, after demurrer overruled, 379 in appeals from orders granting injunctions and appointing receivers, 391-392, and notes, 699 oath to, in injunction cases, 393, 703, 711 insufficient answer is no answer, 393 Index. 929 LReferences are to the pages.] ANSWER— CONTINUED. oath to, on motion to dissolve injunction, 393-394 appeal from order granting injunction when co-defendants have not answered, 394 as affidavit in certain cases, 210, 704, 731 in certain injunction proceedings, 686-687 in certain receivership proceedings, 730 to bill of discovery, 839-840 ANTICIPATED DEFENCE. statement of facts in bill avoiding, 124, and notes APPEAL. see "appeal bonds" see "remand" duty of clerk in making out transcript of record on, 9, 441 right of next friend in behalf of infant to, 16 right of guardian ad litem in behalf of infant to, 20 right of intervenor to, 100 objection of multifariousness for first time on, 143 lies from order overruling demurrer, 174 lies from order sustaining demurrer, 175-176 not from order granting or refusing consolidation, 296 lies from final decree pro confesso, 345 not from action of court in awarding costs, 348 awarding of costs in, discretionary, etc., 348 not from action of court as to rehearing, 356 from action of court as to vacation of enrolment, 362 does not lie from order granting leave to file bill of review, 368-369 from orders refusing leave to file bill of review, 369 interpleader, interlocutory decree in, 827 and note 5 order ratifying commissioners' return on appeal from decree for sale, 525 from decree under mortgage containing assent to decree, 558 not from order suspending sale under mortgage with assent to decree, and ordering account, 559-560 from order dismissing petition to arrest sale under assent to decree, 560 execution of decree for sale stayed by appeal and bond, 611 from order fixing rate of commissions, 659, and note 6 in iniunction cases by statute, 684, and note 12 in injunction cases, discretion as to bond, 694, note 1 in injunction case dissolution unless amendment made, etc., 698, note 3 not from order upon application to fix early day for hearing motion to dissolve, 701, note 5 statutes respecting, in general, 373-376 prior to the statutes, 373, and notes 59 930 Index. [References are to the pages.] APPEAL — CONTINUED. purpose of statutes restricting right of, 374, 376, note I two classes of cases in which, lies, 374, and notes present statute as to right of, 375-376 summary of statutes relating to, 37s, note 1 final decrees and orders, 374-379 final decrees, 374, 375 final decree, definition of, 376 and notes instances of final decrees, 377 order in nature of final decree, appeal from, 374, 375 order in nature of final decree, definition, 377 instances of orders in nature of final decree, 377-379 order finally ratifying auditor's account, 377, and note 2, 650 order confirming commissioners' partition report, 514 order refusing to rescind order striking out, 378 order refusing to reinstate, 378 orders not final, 379-388 certain instances of, 379-381 defects of form, appeal from, 381, note 15 orders reserving questions, 381 instances of orders reserving questions, 381, and note 3 orders discharging receivers, 382, and notes orders refusing to discharge receiver, 382, and notes orders referring case to auditor, but determining no rights, 382* 383, and notes order rescinding previous orders, 383 instances of orders rescinding previous orders, 383-384, and notes orders directing payment into court, 384, and notes discretionary orders, general rule respecting, 385, and note 1 instances of discretionary orders, 386-388, and notes see "discretion" interlocutory orders, statutory appeal from certain, 388-401 the principal statute stated, 388-389, and notes order granting injunction, 390 sufficiency of averments of bill sole question raised, 390 order refusing to dissolve injunction, 390 , order continuing injunction, 390, and note 2 to sec. 318 see "injunction" order appointing receiver, 390-391 order, refusing to rescind appointment of or to discharge, 390. 391 discharge of receiver, no appeal from, 391 filing of answer a condition precedent to appeal, 391 demurrer to bill treated as answer in, 391, and note 3 answer not considered, 391-392, and note 1 averments of bill taken as true in, 392, and note 2 Index. 931 [References are to the pages.] APPEAL— CONTINUED. duty of court to determine if proper case made by bill in, 392, and note 3, 393 answer must appear in record in, 393 full transcript of record to appellate court, 393, and note 2 appeal premature if taken before answer, 393 defective answer is no answer, 393, and note 3 oath to answer not necessary, from order granting injunction, 393, 394. note 4 appeal from order granting injunction by one defendant, 394 objection to authority of court to pass injunction, 394 dissolution of injunction, appeal from order of, 394, and notes Order for sale, conveyance or delivery of property, 395, and notes the statute stated, 395 order refusing to authorize sale before final decree, 395 interlocutory order of sale, order suspending or rescinding, 395 order determining question of right and directing an account, 396-397. and notes the statute and its history, 396, and note 1 orders refusing to grant injunctions, 397 the statute and its history, 397-398, note 1 transcript of record to be sent to court of appeals forthwith after appeal, 398, and note 2 orders previous to final decree, 399 the statute and its history, 399, and note 1 purpose of the statute, 399-400 what orders may be reviewed on appeal from final decree, 400 instances of such orders, 400-401, and note 7 certain objections not reviewable on appeal unless exceptions filed, 402- 415 the statute stated, 402-403, and note 1 competency of witnesses, exceptions to must be filed below, 403 instances of objections to competency of witnesses, 403 admissibility of evidence, exceptions to must be filed below, 403-404 see "evidence'' instances of objections to admissibility of evidence, 404 insufficiency or want of evidence, exceptions below not neces-* sary, 404 effect of evidence not excepted to, 405 parol evidence varying written instruments, 405 and note 1 other instances, 405, and note 4 papers not strictly in evidence do not require exceptions, 406 instances of this rule, 406 insufficiency of averments of bill must be excepted to belc 406-408 932 Index. [References are to the pages.] APPEAL— CONTINUED. instances of these exceptions, 407-408 if no exception, appellate court decides upon proof, 407 and note 5 account stated and reported must be excepted to below, 408-409 and notes the statute and its history,- 408 and note 4 the rule prior to the statute, 408 instances of objections to account stated and reported, 409 certain accounts not requiring exceptions, 409-410 accounts stated under instruction of party, 409 account stated as determined by court, 409-410 exceptions must present same points as decided below, 410 exceptions must be definite, 410 particular ground of exception must be pointed out, 410 instances of exceptions, 411-412 exceptions to the competency of witnesses, 411 exceptions to the admissibility of evidence, 411 exceptions to sufficiency of averments of bill or petition, 411 exceptions to account stated, 412 filing the exceptions, 412 noting exception by examiner not sufficient, 413 jurisdiction, objections to by defendants, 413-414 and notes prior to the statute, 413 the statutory provision, 413 applies only to appellate court, 413-414 parties other than defendants, objections by, 414 meaning of objection to jurisdiction, 414, note 5 to be specially taken by exceptions, 414-415 record must show objection taken, 415 remand without affirmance or reversal, 421-427 the effect of the statute, 421 the statutory provisions, 421, note 2 ordered when justice requires further proceedings, 422 not ordered when entire new bill required, 235, 422 when amendment would make bill inconsistent, 422 and note 3, 235-236 whether required by justice, a proper subject of argument, 422 if requirements present, statute is mandatory, 422, and note 5 for amendment, 423 and note 1, 235-236 for introduction of evidence, 423-424 and note 2 for making new parties, 424 and note 3 for other purposes, 425 and note 4 effect of order of, 425 and note 1 directions of appellate court, 425-426, and notes decision of appellate court final, 426, note 2 appellate court to decide all questions presented by record, 426 and note 3 Index. 933 [References are to the pages.] APPEAL— CONTINUED. appellate court must express opinion and give directions, 426- 427 costs upon, subject to final decree, 351, note 1, 352, 427 parties to, 427-429 parties to suit for purposes of, 427-428 right to, not restricted to technical parties, 427 in creditors' bill case, claimant of property involved, 427-428 and note 2 guardian ad litem on behalf of infant, 428, and note 3, 20 next friend on behalf of infants, 16, 428, note 3 must be proper parties, 447-448 joinder of plaintiffs or co-defendants, 428 and note 1, 429 cannot be heard ex parte without express authority, 447-448 interest of appellant, 429-433 record must show interest in appellant entitling him to, 429 and note 1 dismissal of, where appellant without interest, 429 and note 1 interest of appellant must affirmatively appear in record, 429- 430 and note 3 attorney has no right to appeal in own name, 127, note 2, 430 note 2 trustee under decree, no right to, 430-431 and note 1; except as as to order affecting allowance of commissions, 431 and note 2 conventional trustee to sell property, when may appeal, 431-432 and notes receiver, right of to, 432, and note 1, 73s insolvent's trustee, right of to, 432-433 executor, right of to, 433 and note 3 miscellaneous, 433-450 is wholly statutory, 433 and note 1 special statutory jurisdiction, appeal in cases of, 434 and note 1 presumption in such cases, 434 a matter of right in cases provided by statute, 435 and note 1 statutes as to, liberally construed, 435 and note 2, 3 agreements not to, or to withdraw a pending appeal, 436 and note 1 proof of agreements inserted in record, or by affidavit, 436 decree must be adverse, 436-437 and note 2 no reversal if appellant not injured by decision below, 436-437 decrees by consent, appeal does not lie from, 437 consent should be part of decree or endorsed upon it, 437 decree should not be broader than consent, 437 and note 4 when objection to appeal should be taken, 437-438 decrees by consent in mortgages in Baltimore city, 438 and note 6, 5S8-SS9 934 Index. [References are to the pages.] APPEAL— CONTINUED. recitals in decrees, as to formal matters on appeal, taken as true, 438 mere recital of jurisdiction in decree, not sufficient proof, 438- 439 appellate court determines whether an appeal lies, 439 and notes appellate court determines effect and operation of, when taken, 439 concurrence of majority of judges necessary to a reversal, 440 affirmance where court is divided, 440 no opinion filed where court divided, 440 motion to dismiss appeal fails in case of divided court, 440 deciding case though appeal dismissed, 440 and note i,to sec. 367, 441 and note 2 decision of case never made against wish, &c, 441 statutory provision as to mode of taking, 441 and note 1 rules of court of appeals, 441, note 1 time allowed for taking, 442 and note 1 filing of petition for rehearing does not suspend running of time, 442, note I date of decree excluded in computing time, 442, note 1 time of taking in case of fraud or mistake, 442-443 and note 2 allegation of fraud or mistake on oath sufficient, 443 must be actually entered within two months, 444 and note 5 verbal order for appeal and entry thereof, 444 and notes 5, 7 transcript of record, see "record" entry of, stricken out for failure to transmit record, 445 and note 4 second appeal after striking out entry of first, 446, note 4 record may be sent up by appellee, 446, note 4 practice in court of appeals, 446-447 rules respecting appeals regulate practice in court of ap- peals, 446 regularity and propriety of, how determined, 446 and note 2 motion to dismiss presents first question for determination, 446 dismissal sua sponte, by court, 446 appellant may dismiss appeal at any time, 447 after withdrawal, second appeal if, 447, note 5, 449-450, note 13 re-argument, when allowed, 447, note 6 enrolled decree, power of court of appeals over, 447, note 6 character in which appeal taken, 447 proper manner in which taken, 447 agreements of counsel, disregarded in certain cases, 447 agreements to amend record, when permitted, 447 death of party after appeal prayed, procedure, 448 affirmance of decree makes it the law of the case, 448 and note 8 i instance where affirmance binding, as to interest, 448 Index. 935 [References are to the pages.] APPEAL — CONTINUED. reversal not granted for benefit of party not appealing, 448 * on reversal, court of appeals passes decree, 448-449, and note 10 appeal not pending till transmission of record, 449, note 2 mere entry of, does not deprive lower court of its jurisdiction, 449 and notes 11, 12 after appeal taken, agreements in control of appellate court, 439, note 6 successive appeals not allowed on same state of record, 449 and note 13 APPEAL BONDS. in action on, costs of obtaining records part of taxable costs, 347, note 2 code provision as to staying execution or suspending decree by, 415 and note 1, 417, act of 1890, ch. 32, 415-416 and note 2, 699-300 who must give, 416 and note 3, 417 and notes 3, 4 staying of operation of previous orders by, 416, note 1 requirements as to, 416 approved by judge or clerk, 9, 416, 418 power of courts to take, independently of statute, 417, note 1 statutory provisions applicable at law and in equity, 417-418 order of chancellor or court staying proceedings, 417, note 1 . should be filed immediately, 417 and note 5 appeal per se does not operate as stay, 417, note 5 effect of, not destroyed by non-payment of costs, 417, note 5 securities on, must be at least two, 417-418 and note 6, 416 note 4 penalty of, 416, 418 condition of, 418 and note 8 affidavit as to delay before issuance of, 418 filing of stays execution, 418 sufficiency of sureties determined by court, 418 and note 12 rejection of, and filing of new, 418, note 12 not avoided for matter of form, 418, note 12 of appellant dying pending appeal, remains liable, 418, note 12 appeals are valid without, 419, and note 1 sole purpose of, is to stay execution, 419 and note 3 improper bond does not stay execution, 419 effect of, upon cause, 419 and note 1, to sec. 344; 420 and note 2 proceedings not prejudicing rights of appellant not stayed, 420 proceedings as to rights not passed upon by decree, not stayed, 420 responsibility under, directly upon bondsmen, 420 new bond may be compelled, if one improperly drawn, 420 speaks from date of filing and approval, 420 damages in action on, 420 in injunction cases, 699-700, 711-712 936 Index. [Eeferences are to the pages.] APPEARANCE. what is; general and special, 148-149 no step allowed till entry of, 148. note I as waiver of objection to jurisdiction, 148, note 1; 149, note 2 by solicitor, 149 special, how made, 149, note 2 who makes and how, 149 authority to make, need not be made part of record, 149, note 3 court may enter, when defendant fails to do so, 149, note 4 in what time to be made, 149-150 voluntary, waives notice, 150, note 6 gratis, 150, note 7 default in, procedure, 150 modes of compelling, old and present, 150-151 attachment and sequestration, 150-151 corporations, proceedings against to compel, 150, note 3 commission of rebellion, and search by sergeant-at-arms, 151, note 6 election of proceedings to compel, by plaintiff, 151, note 6 authority of solicitor presumed, 108, 149, note 3 striking out, by solicitor, 108, note 4 of representative of deceased party, 253, 254, note 3 defendant appearing, but leaving State before answer, 341 of defendant after passing of order to take bill pro confesso, 344 neglect of counsel to appear not sufficient for vacation of en- rolment, 360, note 1 APPEARANCE FEE. portion of, allowed deputy clerk acting as guardian ad litem, 19, note 5 for what allowed, 674 depends upon contract of employment, 674 must be a suit, 674-675, and note 3 not allowed in certain cases, 675 commission to deputy clerks, 674, note 1 division among solicitors, 674, note I - interpleader cases, 674, note 1 in sale of mortgaged property under power of sale, 675, note 3, S35, note 7 in Baltimore city mortgage foreclosures, 675, note 3 ARBITRATION. court may with consent of parties refer pending suit to, 312 order for reference passed on motion and written agreement, 312 decree passed in conformity with award if no objections be made to it, 312 specific performance of contract for, 774, and note 4 Index. 937 [References are to the pages.] ARBITRATORS. parties for purposes of discovery, 30, note 9 ARGUMENT. setting case down for, 313-314, and notes setting demurrer for, 177 setting plea for, 185-186, and note 3 submitting case without, 315, and note 8 not necessary to constitute hearing, 315 ASSIGNEE. see "parties" of mortgage with power of sale, see "foreclosure of mortgages under power of sale" ASSIGNOR; see "Parties." ASSOCIATION. unincorporated, members of, as parties by representation, 49, and note 4 voluntary, officers of, as representative parties, 50 ATTACHMENT. with proclamations, 150-151, 336, note 7 to compel appearance or answer, 150 to enforce order for more perfect answer, 202 to compel answer to interrogatories, 205 to compel appearance and testimony of witness before exam- iner, 265 to enforce order directing payment into court, 289 to enforce decree may issue within twelve years, 335 process of, when returnable, 335, note 2 of contempt to enforce decree, 335 by way of execution to enforce decree, 335 upon decrees, authority of court to determine questions arising on. 336, note 10 order for, to bring party before court, 380 against defaulting purchaser at sale, 615-616, 617 use of in various other proceedings, see the several titles ATTORNEYS; see "Solicitor." AUDITOR AND MASTER officer of court, 653 functions of in England, 653, and note 2 in Maryland under inherent jurisdiction, 653 constitutional authority to appoint, 653, and note 4 has powers of auditor as well as master, 653 term of office, 653-654 fees of, 653, note 4 the office in Baltimore city, 654, and note 7 adviser of the court, in cases not argued, 654 report of and action thereon, 654-655 rules of court in Baltimore city, 654, note 1, 315, note 9 form of order of reference, 654, note 1 938 Index. [References are to the pages.] AUDITORS AND THEIR ACCOUNTS. production of documents before, 283, note 3, 286-287 payment under ratified auditor's report enforced by petition, 308 fees of, are taxed in the costs, 353 setting aside ratified auditor's account after enrolment, 358, note 6 order ratifying account of, is in nature of final decree, 377, and note 2 order sustaining exceptions, in nature of final decree, 377-378 order directing account of, to be stated in particular manner, is in nature of final decree, 379, 396, note 1 order adopting recommendation of, to suspend action, is not final, 381 orders suspending final action on claim, not final, 381, note 3 orders referring case to, for account, but settling no rights, 382- 383 orders determining rights of parties and directing account, 383, 326 objection to account of, when to be made, 409 exception to report of, must point out particular ground, 410 in creditors' suits, after notice to creditors, 466 code provisions, 629-632, and notes appointment of, 629, 630, note 6 oath of office, 629, and 630, note 6 accounts to be referred to, 629-630, and note 3, 632 power to administer oaths, and take testimony, 630, and note 4 to state accounts, by order of court, 630, and note 5 special auditor, when may be appointed, 630-631, and note 6 certain other provisions, 631-632 old practice, 629-630, note 2 has all powers as under old practice, 630, note 2 auditor at law, 630, note 2 who may lay papers before auditor, 630, note 3 in creditors' suits, 630, note 3 testimony taken without authority, 630, note 4 various methods of statement, 630-631, note 5 by direction of parties, &c, 630-631, note 5 account falls with reversal of prior proceedings, 631, note 5 see equity rules 53-56 in the appendix auditor's office, powers and duties, 632-633 see also ante, this title, "code provisions" calculator and accountant of court, 632 pleadings, &c, to be referred to him, 632 duty to state account, &c, 632, 633 office analogous to master in chancery, 632 mere ministerial officer, 632, and note 5 Index. 939 [References are to the pages.] AUDITORS AND THEIR ACCOUNTS— continued. report of not obligatory until confirmed, 632-633, and note 6 duty of in stating accounts, 633 suggesting matters to court, 633, and notes 7, 8, 9 and 11, 641, note 1 suspending or reserving claim, 633 powers broadly stated, 632, note 2 fees of auditor, 634 regulated by statute and rules of court, 634 payment of may be compelled, 634 part of costs and enforced as such, 634 code provisions, 634, note 1 increase in auditors' fees, 634, note 1 rules of Baltimore city courts, 634, note 1 who chargeable with payment of, 634-635, note 3 when a reference is not necessary, 635 very few items, 635 sum for distribution very small, 635 unnecessary multiplication of audits condemned, 635, and note 4 difficulty in stating, no objection to, 635, note 4 filing claims in creditors' suits, 635-636 party filing claim becomes party to suit, 635-636 any creditor may thus become party, 635 persons dismissed as plaintiffs may file claim, 636 filing claims in other suits, 636-637 claimant should make known his right, &c, 636, and note 2 by assignee of interest of a party, 636, and note 3 by petition, without subpoena, 636-637 where interest of persons appear in proceedings, 637, note 5 where claims filed by creditors as witnesses, 637, note 5 when claims may be filed, 637-638 at any time before distribution, 637, and note 2 new reference to auditor by creditor, 637 where creditor is not negligent, 637-638 costs of restatement of account, 638, and note 4 late creditor put on footing with others, 638 where whole estate paid out, 638 small claims paid out of interest, 638. note 4 character of proof required, 638-639 same as for claim in orphans' court, 638, and note 1 this is primary proof only, 638-639 where full proof demanded, 638-639 strict legal evidence required, 639 how demand for full proof made, 639 passage of claim by orphans' court, 638, note 1 demand for full proof dispenses with ordinary proof, 639, note 2 940 Index. [References are to the pages.] AUDITORS AND THEIR ACCOUNTS— continued. proof of vouchers, 639, note 3 stating the account; notice; 639-640 from proofs already in cause, 639, and note 3 from proofs in cause and other proofs, 639-640 whether notice of stating account is necessary, 640, and note 3 persons not parties not entitled to notice, 640, note 4 provisions of equity rules, 640, notes 3 and 4 ex parte statements by auditor, 640, note 4 presumed to be made up to time of filing, 640, note 4 or to some selected date, 640, note 4 names of creditors should be given, 640, note 4 taxing costs in the account, 640, note 4 allowance of claims by auditor, 641 admits every claim filed and properly authenticated, 641, and note 1 claims not verified, 641 reason of requiring proof, 641 claims referred to but not filed, 641, note I order in which claims in creditors' bill case to be stated, 641, note 1 reserving fund to meet litigated claim, 641, note 1 practice in Baltimore city, 641, note 2 amendment of claim after filing, 641, note 3 exceptions, 641-643 auditor's report stands over, 641-642, and note 1 after this time, may be ratified, 642 during this time exceptions may be filed, 642 exceptions of fact and of law, 642, and notes 3, 4 person not party cannot except, 642 if sustained, operate beneficially for all creditors, 642 but not the exception of limitations, 642 when they are in time, 642, and note 8 by late creditor to claims already settled, 642-643 claim once established, not subject to exceptions, 643, and note 9 order nisi on auditor's account, 642, note 2 assignee for benefit of creditors' right to except, 642, note 5 exceptions and testimony before case goes to auditor, 643, note 8 surcharge and falsify, 643, note 8 exceptions, form of, 643-644 should point out particular error, 643 and note 1 general exceptions cannot be considered, 643 and note 1 for purposes of appeal, 643-644 reasons of exception need not be stated, 644 substance rather than form determines, 644 Index. 941 [References are to the pages.] AUDITORS AND THEIR ACCOUNTS-continued. instances of exceptions, 643-644, note 1 exceptions, when not necessary, 644 accounts stated by direction of party, 644 and note 1 where rights adjudicated by court, 644, and note I limitations, who may plead, 645 any party interested, 645 and notes 2, 3 not stockholder for corporation, 64s, note 4 limitations, how and when pleaded, 645-646 by filing informal statement without oath, 645-646, and note 2 objections must show that statute is relied on, 646 when may be pleaded, 646 not after the defense has been waived, 646 and note 5 limitations, other matters in regard to, 646-648 runs until date of filing claim, 646 and note I enures only to benefit of party pleading, 646-647 and note 2 period of, applicable to classes of claims, 647 acknowledgments to remove bar of, 647 suspended for eighteen months in certain cases, 647, and note 5 plea not operative against claim not then filed, 647-648 general plea of, in answer, 648 conflicting pleas of, 648, 647, and note 2 judgment against administrator in creditors' suit, 647, note 4 proof, proceedings to complete defective, 648-649 reference to auditor to complete, 648 and note 1 ratification in part, 648-649 procedure upon reference to auditor, 649 creditor must be vigilant, 649 and note 5 between final report of auditor and its ratification, 649 ratification, in part, of auditor's account, 649-650 instances of ratification in part, 649-650, 648-649 ratification as stated by auditor, with modification, 650 final ratification, 650-651 is an order in nature of final decree, appealable, 650 is a judgment of the court, 650 rehearing or revision of, 650 conclusive upon all parties, 650-651 as a judgment in rem in certain case, 650, note 1 payment of money before, 650, note 1, 609-610 and note 6 consent to ratification as proof of receipt of funds, 651, note 4 form of order in Baltimore City, 652, note 1 final ratification, opening account after, 651 party petitioning for, must come with strong circumstances, 651 general rule in respect to filing claims, 651 when claimants are negligent, 651 when accounts are remanded for other causes, 651-652 when reopened for any cause, claim may be filed, 652 942 Index. [References are to the pages.] AUDITORS AND THEIR ACCOUNTS— continued. enrolment, before and after, 652 payment of the amounts audited, 652-653 order directing payment, 652 enforcing payment by petition, 652-653 order to bring money into court, 652, note 1 • form of order in Baltimore city, 652, note 1 AWARD; see "Arbitration." specific performance of, 774, note 4 BANKRUPTCY. assignee in, as party, 57 of party renders suit defective, 251, note 5 BENEFICIARY. see "parties" represented by trustee, 44-45, and notes as parties, 46-47, 52 and notes trustee a necessary party in suits against, 52 suits between, and trustee, parties to, 53 and notes suits between trustee and strangers, not necessary parties, 54 and notes BILL. see "amendment of bill," "amended bill," "petition," "supple- < mental bill," "dismissal of bill" classification of bills, 107, note 7 ancillary, 107, note 7 Ming the bill, 107-108 necessity of, 107-108 and notes authority to file, 108 authority presumed, 108 and note 4 parts of the bill, 109-110 the nine parts formerly used, 109-110 and notes provisions of the equity rule, no forms, 109, note 2, and no, note 12 caption not part of, in, note 12 to sec. 88 signature and affidavit, 111-112 signature of solicitor, in and note 1 signature of party, in affidavit by plaintiff, 111-112 what bills must be sworn to, 112, note 5 affidavit by corporation, who makes, 112 interrogatories in, see "interrogatories" prayer for process, 114-115 purpose of, 114 and notes 1, 2 character of process prayed for, 114 prayer for process, contents of, 114-115 writ or special order, 115 Index. 943 [References are to the pages.] BILL — CONTINUED. frame of bill and statement of case, 115-116 equity rule, 115-116, and notes 1, 3 reasonable accuracy and clearness necessary, 116-117, and notes demurrer for lack of, 116, 119 when strictly necessary in bills, 117, note 10 in charging fraud, 118 in charging irremediable damages, 119 in charging waste, 119 certainty, 116-119, and notes in charging irremediable waste or damages, 119 charge of fraud, 117-118 particular acts to be set out, 118 and notes 1, 4 case in alternative, 119-121 general rules respecting, 119-120 and notes bill must be consistent with itself, 120 recovery only on allegations of bill, 121-124 the general rule, 121 and notes 1, 2 amendment of, to include omitted facts, 121 and note 2 infirmity apparent on face of, relied on at hearing, 122 exceptions, limitations, usury, 112, 316 must allege all facts intended to be proved, 122, and notes 7, 8 evidence must be applicable to material allegations, 122 no facts in issue unless charged, 122-123 and notes 11, 13 relief cannot be granted upon case not set forth, 123-124, and note 15 anticipating the defense, 124 plaintiff may anticipate defense of defendant, 124, and note 1 equity rule, 124 plaintiff may state facts repelling presumption of laches, 124, note 2 must show equity jurisdiction, 124-126 the rule stated, 124-125 and notes 1, 2 objection to jurisdiction, when and how taken, 125 court may sua sponte refuse relief, 125-126 and note 9 consent of parties cannot confer jurisdiction, 126 objection at the hearing, 126, and note 12 removal to court of law, 126 must show plaintiff's and defendant's interest, 126-128 must show plaintiff's interest in subject-matter 126 and notes 1 and 2 interests of plaintiffs must be consistent, 133 insufficient disclosure of plaintiff's interest, 126 and note I mere volunteer with no interest in subject-matter, 127 must show defendant's interest, 127-128 must show plaintiff's title and capacity to sue, 128 plaintiff must have proper title to sue, 128, and note I 944 Index. [References are to the pages.] BILL — CONTINUED. objection to capacity taken at any time, 128 consent cannot entitle plaintiff to relief where no capacity to receive it, 128 prayers for relief, 128-130 special and general prayer, 128 prayer for general relief, 128-129 form of general prayer, 128, note 2 in absence of special prayer, relief under general prayer, 129 court not confined to relief specially prayed for ,129 court must conform to case made in granting relief, 129 relief not warranted by facts alleged and proved, 130 prayer should specify relief desired, 130 equity rules, 130 frame of prayer, 130 and note 13 special prayer for injunction, 130 and note 13 illustrations of rules, 130-131, and notes decree for account, in creditors' bill, 131, note 2 decree for partition under bill for sale, 131, note 2 decree for compensation when specific performance refused, 131, note 2, 780, and note 1 in bills for discovery, 839 plaintiffs right to dismiss, 132-133 dismissal on payment of costs, 132 dismissal as to certain parties, 132-133 plaintiff may not dismiss as of course, when, 132, and notes 2-4 miscellaneous, 133 character of, how determined, 133, 461 to be framed so as to admit of final settlement, 133 exceptions to averments of, 407-411 retaining of, to determine question of law, &c, 322-323 order to retain is not final, 380 averments of, taken as true in certain appeals, 392 and note 2 objection to insufficiency of, must be raised below, 406-408 and notes certain other matters, 133 Multifariousness, 133-134 definition and reason, 133-134 several definitions, 133-134 necessity of rule against, 134 distinguished from misjoinder, 134, note 6 discretion and convenience, 134-135 no inflexible rule, 134-135 and notes 1, 3 each case governed by its own circumstances, 135 multifariousness as to one defendant, and not to others, 135 multifarious bill to contain two good causes of action, 136, note 4 Index. 945 [References are to the pages.] BILL — CONTINUED. prayers of, will not render it multifarious, 136, note 4 classification, 136 three classes stated, 136 where no privity between parties, 136-138 illustrations of this class, 136-138 and notes limitation on rule, 138-139 where parties have one common interest, rule does not apply, 138-139 sureties on bond may unite against another for contribution, 139 other instances, 139 rule against, broadly stated, 139-141 where cases entirely distinct, 139-140 creditors may join debtor and his fraudulent grantees, 140 instances of bills not multifarious, 140-141, note 5 party sued in different capacities, 141 instances, 141, and note 3 party sued for distinct matters, 142 proceedings for sale for partition and foreclosure, 142 , how, when and by whom objection taken, 142-143 taken by demurrer, plea or answer, 142, 179-180 cannot be taken at the hearing, 142, 317 waiver of objection, 142 court may sua sponte raise objection, 143 on appeal, objection cannot be raised for first time, 143 after decree pro confesso, the objection cannot be raised, 143 who may object, 143 dismissal of bill in part for, 144 old practice was to dismiss in toto, 144 equity rule, purpose of, 144 BILL FOR ACCOUNT. maintainable when remedies at law inadequate, 823 instances where legal remedies are inadequate, 823 • in cases of fiduciary relations, 823-824 after decree to account, both parties actors, 824 decree for payment may be either for plaintiff or defendant, 824 in partnership cases, 824 instance of bill for discovery and account, 823, note 1 creditor as actor, 824, note 10 answer not evidence of disbursements, 824, note 10 statute of limitations, and another bar, 824, note 10 BILL IN THE NATURE OF A SUPPLEMENTAL BILL, see "supplemental bills" 60 946 Index. [Referenpes are to the pages.] BILL OF DISCOVERY. nature of the bill, 837-838 \, in aid of the jurisdiction of court of law, 838, and note 2 not much present occasion for use of, 838 may now be taken pro confesso, 838, 341 equity jurisdiction not ousted by statutes at law, 838 discovery and relief, 838-839 interest of plaintiffs and defendants, 839 not maintainable against persons who may be witnesses, 839 disclosure sought must be pertinent and material, 839 frame and allegations of bill, 839 answer may set forth matter in avoidance, 839-840 certain rules as to answers, 840 and note 2 answer need not be incriminating, 840 and note 3 discovery of title of adversary, 840 demurrer to test liability to answer, 840 case terminates with the answer, 840-841 , cross-bills of discovery not now allowed, 841 petition pending the cause, 841 and note 3 relevancy, &c, of testimony, determined by law court, 841 costs upon, 841 BILL OF EXCEPTIONS. on trial of issues by jury, 294, note 1 BILL OF PEACE; see "bill quia timet" BILL OF REVIEW. as to unknown heirs and representatives of non-resident, 163, notes 2, 4; 369, note 5 lies for only two causes, 362 ■ party must have been injured to be entitled to, 362-363 supplemental bill in nature of, 362, note 2 bill in nature of, 362, note 2 operation of decree not suspended by filing of, 363 decree sometimes ordered suspended, 363, note 4 lies only to impeach final, not interlocutory decree, 363 does not lie to review decree by consent, unless, &c, 363. to vacate decree of interpleader, 827 performance of decree a condition precedent to, 363 for error of law apparent on face of decree, 362, 363-365 nature of error justifying, 363 instances of error of law apparent on face of decree, 363, note 2 erroneous conclusion or judgment of court, 363 in examination of decree, testimony not considered, 364 bill, answers, &c, revised as if recited in decree, 364 leave to file not necessary, 365 will not lie for error of law after affirmance on appeal, 365 founded on new matter after affirmance on appeal, 365, note 9 as to decree pro confesso in court of appeals, 365, note 9 Index. 947 [References are to the pages.] BILL OF REVIEW— continued. time for filing, 365-369 procedure on filing, for error of law, 365 and note 1 for newly discovered evidence, 366-369 leave of court necessary, 365-366 procedure in applying for, 366 and note 7 what petition must show, 366 affidavit, as to newly discovered evidence, 366 and note 3 reasonable diligence to be shown, 367 refused if new evidence could reasonably have been known before, 367 instances of lack of due diligence, 367, note 5 new matter must be relevant and material, 368 and note 6 application addressed to sound discretion of court, 368 where interests of innocent third parties involved, 368 order granting leave to file, not appealable, 368-369 time of filing, 369 time of filing after sale of lunatics property, 506, note 1 time of filing by non-residents, 166 and note 2 decree dismissing, a final decree, 377 order granting leave to file, not final, 380 against trustee and parties by purchaser discovering deficiency of land, 597 BILL OF REVIVOR. see "'abatement" or original bill in nature of, which to be used, 224, note 2 BILL QUIA TIMET. other terms for, 817 purpose of, 817-818 and note 2 ground of equity jurisdiction, 818 bill of peace against person reiterating claim, 818, note 3 possession and title of plaintiff, 818-819 possession necessary as a rule, 818-819 and note 4 ■ instances of use of proceeding, 819 allegation that plaintiff is seized in fee simple, 818, note 1 constructive possession of wild lands, 818, note 1 by creditor to remove cloud from debtor's property, 819, note 7 assignees made parties to remove cloud, 56, note 1 to sec. 47 BILL TO PERPETUATE TESTIMONY. see also "bill to take testimony de bene esse" when maintainable, and object, 816 and sec. 713 contents of bill, 816 in the federal courts, 816, note 2 affidavit of, 816 > ' rarely used in Maryland, 817 objects obtainable by other methods, 817 equity rule provisions, 817 and note 4 when testimony may be taken, 263, note I 948 Index. [References are to the pages.] BILL TO TAKE TESTIMONY DE BENE ESSE. see also "bill to perpetuate testimony" when maintainable, 816 how differs from bill to perpetuate testimony, 816 affidavit to, 816 in the federal courts, 816, note I to sec. 713 rarely used in Maryland, 817 objects obtainable by other methods, 817 equity rule provisions, 817 when testimony may be taken, 263, note 1 BILL TO VACATE DECREE OBTAINED BY FRAUD. after enrolment, proceedings by bill, not petition, 358 and note 6, 370 and note 2 fraud to be proved, before decree investigated, 370 may be filed without leave of court, 370 BONDS. see "appeal bonds'' clerk may approve securities on, in certain cases, 9 retaining bill to allow action on, to determine liability of sure- ties, 323 costs as to, in cases of specific performance, 353, note 15 liabilities on executor's, for waste of assets in creditors' suit, 457, and note 3 liability of sureties on trustees, 528, note 1 to sec. 447 in sales under power of sale, 544 in sales under assent to decree, 560 in sales under decrees, 569-570 sureties on trustees, effect of ratification of auditor's account, 650, note 1 injunction, 694-696 receivers, 722, 729, note 3 interpleader, 827, and 828, note 5 cancellation of deceased receivers, 718, note 3 BONDHOLDERS. represented by trustee under railway mortgage, 45-46, and note 1 representing one another, 49, note 3 BOOKS AND PAPERS; see "Production of documents." CAPACITIES. party sued in different, 104, and note 5, 105 multifariousness in this respect, 141 CHANCELLOR. office of, 2 abolition of office, 2 proprietary governors or appointees as, 2, note 6 exclusive jurisdiction of, in equity, 3 Index. 949 [References are to the pages.] CHANCELLOR -continued. county courts given same jurisdiction, 3 authorized to take opinion of common law judge on questions of law, 290, note 4 CHILDREN. examination of, in regard to capacity to testify, 266, note 4 discretion of court in allowing to testify, 388 CLAIMS OF CREDITORS. ■see "auditors and their accounts" see "creditors' bills" CLASS. 1 representation of numerous, 38, note 4, 48-50, and notes CLERICAL ERROR. in decrees, correction of before enrolment, 355, and note 2 CLERKS OF COURT. election, appointment, compensation, 8 may appoint deputies, 8 acting by deputy, 8, note 6 charges, 8 trust clerk, salary of, 8 certain duties and powers of, 8-9 care of, over papers, 9, note 6 deputy, as guardian ad litem in Baltimore city, 19, note 5 may issue order of publication, 168 approval of appeal bond, 416 duty of, when appeal taken, 441 may refuse to transmit transcript of record till costs paid, 441 not duty of to notify appellant of completion of record, 442 appearance fee, payment of portion of, to clerk, 674, note 1 CLOUD ON TITLE; see "bill quia timet." CO-DEFENDANTS. husband as, in suits against wife, 20 ,and notes answer of, may be joint or separate, 215, and note 1 answer of defendant cannot be read against, 215 answer of, how compelled by defendant, 300 decree as between, 330-331 COMMISSIONERS. in partition cases, see "partition" and "partition under the act to direct descents" to take testimony, compensation of, 262, note 3 compensation of clerks to, 262, note 3 how payment to enforced, 262, note 3 have authority to summon witnesses, 265, note 1 interrogatories sent with, 268, note 3 commissions issue to two persons, 279, note 1 to sec. 222 950 Index. [References are to the pages.] COMMISSIONERS-continued. commission may issue by consent to one person, 279, note 1 to sec. 222 only one to act on same day unless both are called for, 279, note 1 to sec. 222 shall act as clerk unless clerk is asked for, 279, note 1 to sec. 222 COMMISSION TO TAKE TESTIMONY, proceedings under, 264, note 6 much particularity required in notice, 266 objection to depositions as taken at another time or place, 267 when strict compliance with waived, 267 presence of counsel and cross-examination of witnesses, as waiver, 267 onus of proving irregularity in, not on exceptant, 267, note 2 hour named in notice, 267, note 3 objections to be noted down and heard at final hearing, 269, note 11 did not continue open longer than six months, 270, note I application for, not granted if party negligent, 27s remanding of, not granted when parties negligent, 275-276 irregularly executed commission, proper proceedings upon, 276, and note 1 testimony ex parte against defendants in default, 272, note 2 issued by consent, evidence only as to those consenting, 277, note 2 evidence under ex parte commission; defendant brought in after issuance, 278, note 2 except foreign commissions, no commission shall issue, 279 issued to two persons named and appointed by court, 279, note I to sec. 222 one commissioner by consent of parties, 279, note 1 to sec. 222 notice of execution of foreign commission, 279, note 1 to sec. 222 rules of court in Baltimore city as to issuance of, &c, 279-280 non-resident plaintiff, 280 in taking bills pro confesso, 343 for exclusive benefit of plaintiff in decree pro confesso, 343 objection to testimony taken under, when to be raised, 404 COMMISSION OF REBELLION. abolished, 151, note 6 COMMISSIONS. conventional trustee, 656-657 the rule in England, 656, and notes 1, 2, 3 the rule in Maryland, 656-657 commissions allowed where trustee has performed his duty, 657 to mortgagee for sale, 550, and note 1, 656, note 4 Index. 951 [^References are to the pages.] COMMISSIONS-CONTINUED. where deed of trust void for fraud, 657, note 4 where no commissions intended, 657, and note 5 conventional trustee, rate of commission to, 657-658 considerations in reference to, 657 discretion of court, 657, 658-659, and note 5 in trust under will, usual rate five per cent, 657-658 other rates sometimes fixed, 658, and note 3 trustees for benefit of creditors, eight per cent, 658 appeal by, in respect to, 431-432 when the instrument fixes the rate, 658-659 the rate prescribed generally allowed, 658 instances of such allowances, 658 discretion of court, 657, 658-659, and note 5 appeal from order, 659, and note 6 case of substituted trustees under decree, 658, note 3 trustee under decree; receivers, 659-660 allowance of, and reason therefor, 659 may be increased or diminished, 659 the same rules in general apply to receivers, 659-660 the same rules in general apply to receivers, 659-660 rule as to receivers, not so invariable, 660, and note 5 rate regulated by rules of court, 660 rules are imperative — the law of the court, 660, II, note 8 the amount received the basis of allowance, 660 nature of the commission, 659, note 2 small collections retained as commissions, 659-660, note 3 double commissions promised by mortgagor, 660, note 7 miscellaneous matters, 661-663 to mortgagee for receiving rents, 657, note 4 where mortgage sale under power of sale is set aside, 562, note 3 re-sale — allowance on, 661, and note 1 estate of deceased trustee, 661, and note 2 double commissions in certain cases, 661 "receipts and collections" — commissions on, 661 disbursements — commissions on, 661-662 when compensation is received, in another capacity also, 662, and note 7 where fund insufficient, parties to pay, 662-663 trustee of non compos mentis, 662, note 6 to agent employed by trustee, 662, note 7 for making investment in Baltimore city, 662, note 7 interest on commissions, 663, note 7 to sec. 561 several sales at different times, 663, note 7 to sec. 561 waiver of commissions, 663, and note 7 to sec. 561 charged upon entire income, under wills, 663, note 8 executors' commission fixed by law, 658, note 2 952 Index. [References are to the pages.] COMMISSIONS— CONTINUED. on specific sums bequeathed, 663, note 8 tax on, 663, note 8 division of — contracts for, 663, note 8 COMMITTEE. suits by non compos mentis brought by, 17 answers for lunatics, 21 service of process on, when non compos mentis sued, 247, note 3 answer by, for non-sane defendant, 214 COMPLAINANT; see "Parties." term "plaintiff" used instead of, 107, note 3 CONFIDENTIAL COMMUNICATIONS. answer to, 199, note 8 objection as to, made in behalf of client not of attorney, 266, note 4 CONFIRMATION OF CONTRACTS. of infants, idiots and persons non compos mentis, 480-481, note 1 CONFIRMATION OF TAX SALES; see "Tax sales, confirma- tion OF." CONSOLIDATION OF SUITS. no statutory provision as to, in equity, 294 maxim that equity prevents multiplicity of suits, 294 when ordered, 294-295 causes in different courts may sometimes be heard together, 294, note 2 advantages of, 29s rights of all parties fully before court, 29s instances of, 295, and note 3 in sale of encumbered land, 295 where several bills are filed by creditors, 295 as to multifariousness, 295, note 3 should not be allowed where objects conflict, 295-296 by agreement between plaintiffs, 296 may be applied for by plaintiff or defendant by petition, 296 court may direct it of its own motion, 296 may take place at any stage of the proceedings, 296 discretionary with court and without appeal, 296, and note 9 order for, not final, 381 of bills for distribution and by creditors, 459, note 6 CONSTRUCTION. of decrees, 326-327 of statutes as to appeal, liberal, 435, and notes Index. 953 [References are to the pages.] CONSTRUCTIVE NOTICE. see "publication^ process by" by publication of notice to file claims, 466 CONTEMPT OF COURT. disobedience of order of court directing payment of officers' fees, 263, note 3 power to punish, inherent in all courts of record, 302 employed to vindicate dignity of court or to enforce its orders. 302 party in, not heard by motion or otherwise till relieved of, 302 commitment for, form of in Baltimore city, 303, note 2 to sec. 243 statutory provisions, respecting, 303-305 failure to pay money decree, 303 in divorce cases, orders may be enforced by attachment for, 303-304 imprisonment for failure to pay alimony, 304, note 4 fine of not more than twenty dollars, 304 person in, committed until order obeyed and fine paid, 304 when attachment for is preceded by order nisi, 304, note 5 when attachment for issues summarily, 304, note 5 for failure of defendant to appear and answer bill, 304 on overruling or withdrawal of plea or demurrer, 175, note 4. 304 for neglect of duty on part of sheriff, 304-305 for executing decrees or orders, 305, 335 for violations of injunctions, 305 for secreting infant to prevent service of process, 305 person in custody for, entitled to immediate trial, 335, note 4 order imposing fine for, not final, 380 for non-payment of auditor's fees, 634 suit against receiver, without leave of court, 726 interference with possession, &c, of receiver, 727 in various other cases, see the appropriate titles CONTINUANCE. application for, 315, note 9 application for, to procure additional testimony, 315, note 9 granting of discretionary, 388 CO-PLAINTIFFS. decree as between, 331 CORONER. service of subpoena by, 146, note 1 CORPORATIONS. see "receivers" foreign, suits by, 13, note 2 power to sue and be sued in corporate name, 21 954 Index. [References are to the pages.] J CORPORATIONS— continued. names of, how to be stated, 21, and note 3 waiver of error in name, 21-22 amendment of misnomer, 22, 23s bill of, need not be under corporate seal, 22 signature of solicitor, sufficient authentication, 22 appear by attorney, 22 need not exhibit proof of incorporation, 22 authority to institute proceedings for corporation,,22, note 5 necessary parties, when, 57-59; see "parties" officers of, joined for purposes of discovery, 29 infringement of patent cases, president joined, 30, note 9 service of process on, 148, note 7 waiver of defective process on, 148, note 7 order of publication on non-resident, 163-164 order of publication against, 166 action against directors for malfeasance, 58 answer of, 214 seal does not take place of oath in answer by, 214 writ of sequestration to enforce performance of order, 301, note 5 distringas and sequestration to enforce answer or obedience to decree, 302, note 5, 335, note 6 cannot exercise power of sale in mortgages, 541 COSTS. see "rule security for costs" next friend liable for, 15, 347, note 2 of amended bill, 91 on dismissal of bill, 132 of overruled demurrer, 175, note 4, 176, note 3, 352 of overruled or withdrawn plea, 188, note 4, 190, 352 of exceptions to answer, 201, note 2, 202, 352 of amendments, 230, 352 of striking out scandalous or impertinent matter, 229, and note 7 revivor of decree for recovery of, 257 of taking testimony before examiner, '265, note 1, 352 of objections to questions propounded witnesses before ex- aminer, 266 of irrelevant, incompetent or immaterial testimony, 281 not dependent on statute or event of cause, 347 discretionary with court, 347 . in chancery compared with costs at law, 347 generally decreed to successful party, 347, note 2 sometimes decreed to unsuccessful party; sometimes appor- tioned, 347, note 2 of obtaining records in action on appeal bond, 347, note 2 Index. 955 [References are to the pages.] COSTS — CONTINUED. must not fall on those not interested in decree, 347, note 2 not decreed against executor acting in proper discharge oi his office, 347, note 2 on dismissal for want of jurisdiction, 348, note 2 postage, notarial seals, etc., not taxable as, 348, note 2 taxed and awarded, constitute liquidated decreed debt, 348 execution may issue for, 348 interest not allowed on, 348 no appeal from action of court in awarding, 348, 387 on appeal, question of, in discretion of court of appeals, 348 on affirming decree, costs on appellant, 348 person to whose use a suit is marked is liable for, 348 opening judgment to insert items after affirmance on appeal, 348 of construction of will comes out of estate, 349 of litigation concerning trust estate to be paid out of fund, 349, and note 3 rule as to in cases of dower, 349, note 3 of trustee's sale set aside on exceptions, 349, note 3 in divorce cases, 669-670 where each party partly successful, 349 when each party in default, 349-350 where part of issues found for each side, 350 when both parties appeal, 350 of unnecessary matter in record, 350 decree will not be reversed on appeal for costs only, 350, and note 1 rehearing for, when allowed, 350-351 motions as to disposition of, on appeal, 351 question of, opened on reversal of decree, 351 in appealed cases, rules as to, 351-352 on reversal, 351 in cases appealed more than once, 351, note 1 on remand when decree below reversed, 351, note 1 on remand without affirmance or reversal, 352, 427 various statutory provisions, 352-353 of amendment, 352 to innocent person charged with violating injunction, 352 in proceedings for change of name, 352 of striking out improper matter or averments, 352 in cases of contempt, 352 of suits defective as to parties, 352 of vexatious or unnecessary issuance of process, 352 payment of, how enforced, 352-353 on remand of cause by court of appeals, 351, note 1, 352, 427 956 Index. [References are to the pages.] COSTS— CONTINUED. as affecting stay of execution by appeal bond, 417, note 5 of making transcript of record, 441, 442 entry of appeal stricken out, 445, note 4 of judgment against executor not debt of estate, 454, note 2 in creditors' suits when lien creditors enjoined, 473, note 2 auditor's fees, part of, 634, 352 taxing in auditor's account, 640, note 4 upon delinquent purchaser at sale, 618, 620 in bill of discovery, 841 COUNSEL FEES. allowances to trustees, 663-664 just allowances include counsel fees, 663-664 under deed providing for allowances, 664 not in contest as to appointment of trustee, 664, note 1 where trustee is attorney and renders services, 664, note 2 instances of such allowances, 664, note 2 rule in Baltimore city, 664, note 2 for resale of property, 664, note 2 allowances to other judicial officers, 664-66$ receivers' counsel fees, 664-665 receivers' counsel, appointment of by court, 665, note I trustee in insolvency, 665, and note 3 in lunacy proceedings, 665, and note 4 executor in construction of will, 665, note 4 allowances out of a common fund, 665-666 on the principle of representation or agency, 665 there must be a contract of employment, 666 no fees for voluntary services, 666, note 2 community of interest, 666, note 2 instances of such allowances, 667-668 in creditors' suits, 667, and note I foreclosure of railway mortgages, 667, and note 2 in bankruptcy cases, 668 in insolvency cases, 668, and note 4 in certain stockholder cases, 668, note 4 when matter to be heard, 668, note 4 to wife in divorce cases, 669-670 almost a matter of course, 669 discretion of court, 669 if lack of means of wife be denied. 669 1 if wife be living with husband, 669 if husband dies pending suit, 669 suit against executors, 669, and note 5 in appealed cases, 669-670, and note 6 want of pecuniary means of wife, 669-670, and note 9 application in name of counsel, 670 Index. 95 [References are to the pages.] COUNSEL FEES— continued. when application may be made, 669, 670, and note 11 order, refusing allowance is appealable, 379, note 10 amount of allowance, 669, 670 enforcement of order granting, 669, note 1 a certain instance,. 669, note 1 suspending proceedings until allowance paid, 670, note 9 when husband denies ability to pay, how determined, 670, note 12 allowances in the orphans' court, 671 the code provision authorizing, 671 decisions collected in note 3 on page 671 miscellaneous, 672-673 application by solicitor or client, 672, and notes 1 and 2, 670 agreements relative to compensation to be enforced at law, 673, and note 3 form of application by counsel, 672, note 2 for solicitor appointed to defend for infants or lunatics, 672, note 2 no fee to solicitor of guardian ad litem, 672, note 2 for solicitor of non-resident non compos mentis, 672, note 2 in deciding on exceptions to answers, 672-673, note 2 provision in mortgage for payment of, 673, note 3 mortgage sale proceeds, claim rejected against, 674, note 3 to sec. 568 to stakeholders, 673, note 3 interpleader, 673, note 3 appellate courts and lower courts, 673-674, note 3 in general, 674, note 3 to sec. 568 order allowing, not final, 380 not allowed guardian ad litem or solicitor for filing answer, 19, note s COUNTIES. land lying in different, jurisdiction over, 6, and notes defendants residing in different, jurisdiction over, 7, and notes COURT OF APPEALS; see "Appeal." COURTS OF EQUITY. see "courts — circuit" see "courts — county" see "court of chancery" see "courts of equity in Baltimore city" see "judges as chancellors" deemed always open for business, 8 COURTS— CIRCUIT. same powers as county courts, 3-4 equity jurisdiction of judges of, 3-4 958 Index [References are to the pages.] COURTS— CIRCUIT— continued. designation of, "for" or "of" county, 4, note 2; no, note 2 criminal cases, writs of error in, 4, note 2 terms of, 4, note 4 COURTS— COUNTY. originally common law courts merely, 3 grant of equity powers to, 3-4 conflict of jurisdiction, 3, note 1 when ceased to exist, 4 note 2 COURT OF CHANCERY. see also "chancellor" compared with English chancery court, 1 principles and powers of prior to Revolution, 1-2 abolition of office of chancellor, 2 name of, 1, note 1 common law jurisdiction, 1, note 1 officers of, 2 note 6 where held, 2, note 7 jurisdiction over State, 2, note 7 no new business after ratification of constitution, 2, note 8 removals to from county courts, 2-3, note 8 abolition of, effect on equity jurisdiction, 3, note 8 powers of, given to circuit courts, 3-4 rules of, where may be found, 10, note 1 COURTS— OF EQUITY IN BALTIMORE CITY. terms of equity courts, 4, note 4 equity courts in, 4-5 superior court given equity jurisdiction, 4 removal of cases to superior court, 4, note 1 concurrent jurisdiction of superior court, 4, note 1 annulling of marriage by superior court, 4, note 1 equity jurisdiction of superior court taken away, 4-5 circuit court of, established, 5 jurisdiction of circuit court. 5, and note 9 where may assemble, 5, note 9 removal of cases to circuit court, 5 circuit court not authorized to grant writ of habeas corpus in criminal cases, 5 circuit court number two established, 5 lands lying partly in city and county, jurisdiction over, 6 CREDITORS' BILLS. see "parties," sees. 57-58 trustee in insolvency represents creditors, 40 intervention in, how made, 102 defendant to, though not alleging himself in his answer to be creditor may come in upon funds, 198, note 7 Index. 959 [References are to the pages.] CREDITORS' Bills-continued. answer of guardian in, conclusive, 213, note 3 abatement of, 252, note 6 right of claimant of property in, to appeal, 427-428, and note 2 definition and history, 451-453 nature of proceeding, 451-452 technical meaning of, 451, note 1 against living debtor, 451, note 1 vacation of fraudulent conveyances by, 451, note 1 history, and summary of legislation, 452-453, and notes decree for sale and distribution does not bar ,452, note 3 parol demurrer in, 452, note 4 what debts authorize the suit, 454-455 debt must exist during life time of debtor, 454, and note 12 funeral expenses, a debt, 455 widow as creditor of husband, 455, note 2, sec. 374 what real estate may be sold, 455-456 in general, 455, and note 2 equitable real estate, liability of, 455, note 2 rents and profits accruing after decease, 455, and note 3 receiver, appointment of pending suit, 455-456, and note 4 specific devise for payment of debts, 456, and notes debts charged on realty by will, proceedings, 456, note 4 insufficiency of personal assets, 456-458 lien of creditor of deceased debtor, 456, note 1 liability of executor for waste of, 457, and note 3 personal estate primary fund for payment of debts, 457, note 2 right of heir to defend realty from payment of debts, 457, note 3 right of creditor to follow realty of decedent in hands of pur- chasers, 457, note 3 proof of insufficiency when not admitted in answer, 457-458 form of proceeding, 458-459 no special form provided by statute, 458 engrafting of, on other suits, 458, and note 3 allowing creditors to come in, 458-459 converting suits into, 459, notes 5, 6 allegations of the bill, 459-461 as to debts and real estate, 459 description of real estate, 459 form of allegation as to real estate, 459-460, note 3 as to insufficiency of personal assets, 460, and notes 1, 2 as to bill being filed for all creditors, 460-461, and notes 2, 4, 5 allegation as to being filed for all creditors, not essential, 461, and notes 4, 5 proof of debts and of insufficiency of personalty, 461-462 validity of claims of creditors to be established, 461, and note I validity of claims not denied, decree had, 461-462, and note 2 960 Index. [References are to the pages.] CREDITORS' BILLS— continued. admission of validity of claims dispenses with proof, 461, note 1 statute of limitations suspended for eighteen months, 647, and note S admission of insufficiency of assets, dispenses with proof, 462 denial of insufficiency, procedure upon, 462 dismissal of, as to heirs when assets sufficient, 462 admission of guardian or committee, binding, 462, note 4 executor's accounts prima facie evidence of personalty, 462, note 4 when decree is granted, 462-463 all or some of plaintiffs must be shown to be creditors, 462, and note 1 case need not be set down for final hearing, 462-463 account of disposition of personalty and of unpaid debts need not be rendered, 463 decree may be passed on prima facie evidence, 463, note 2 decree, various matters concerning, 463-464 validity of claims and insufficiency of assets established by, 463, and note I decree for sale operates as judgment for claims, 463, and note 4 impeaching validity of claims after decree, 463-464 proof of claims after sale made and ratified, 464, and note 7 decree should specify claims rejected in whole or in part, 464 decree for sale does not settle exact amount of claims, 464 rights of creditors as to each other not determined, 464, and note 11 decree to account when some assets not administered, 465, and note 1 trustee, suggestion of creditors as to appointment, 465, and note 4 amount of property to be sold, 465-466 discretion of trustee as to how much of realty to sell, 466 property vested in court by decree, 466, and note 8 notice to creditors, 466 constructive notice by publication, 466, and note 1 claimants with rights appearing on face of proceedings, 466, note 1 claims of creditors, 467-470 filing of claims, 467-469, 635-636 coming in after institution of suit, 467, and note 1 filing of claim after distribution, procedure, 467, note 1 coming in by petition, when, 467, and note 2 coming in by filing voucher, 467 coming in by amended bill, 467, note 2 originals of notes, bills of exchange, etc., to be produced, 467, note 2 Index. 961 [References are to the pages.] CREDITORS' BILLS— continued. counsel not necessary to support claims, 467, note 2 presumption as to becoming party by filing claim, 102, 467-468, and notes 4, 5 filing claims after decree, 468-469, and note 6 limitations suspended after death of decedent, 469 affidavit to claims, 469-470, and note I certificate of register of wills as evidence, 469-470, and note 2 proof of claims, 470, and note 2 judgment against executor as evidence of debt, 470 judgment creditor must prove claim, 470 judgment does not remove bar of limitations, 470, and note 4 miscellaneous, 471-475 control of suit, 471, and note 1 right of co-plaintiffs to prosecute suit, 471, and note 2 death of original plaintiff does not abate suit, 471 reference of case to auditor, 630, note 3 interest on claims. 471-472 method of calculating, 471, and note I to sec. 390 interest on cash and credit sales, 471-472, and note 3 counsel fees, 667, and note 1 order of distribution, 472, and note I order in which claims to be stated, 641, note 1 priorities of creditors observed, 472-473, and note 2 surplus, disposition of, after payment to creditors, 473, note 1 lienors parties to suit, 473-474, and notes 3, 4 retaining of assets by heir or devisee, 473, note 2 persons not judgment creditors, come in pari passu, 473, note 2 payment not made before final ratification, 474 enjoining proceedings at law, 474-475 injunction to stop proceedings by creditor after decree for sale, 474, and note 1 who may obtain injunction, 474 execution issued during the time of debtor, 474-475, and note 2 CREDITORS WITHOUT JUDGMENT, right to proceed in equity, 832-833 see ''vacation of fraudulent acts by non-judgment creditors" CRIMINAL CASES. writ of error in, from equity courts, 3, note 2 circuit court of Baltimore city may not grant habeas corpus in, S CROSS-BILLS. definition of, 241 ! for discovery, 241, and note 2 for discovery only, not allowed, 242, 841 when necessary, 242 ' 61 962 Index. [References are to the pages.] CROSS-BILLS— continued. in case of specific performance and account, 242, and note 4 nature of, 242 answer to cannot be compelled, till original bill answered, 242 how answer to, enforced, 242 testimony in original cause may* be used in cross cause, 242 cannot contradict assertions in answer in original suit, 242 form of, 242 notice, when no new parties introduced, 242 notice when new parties are made, 242-243 allegations of, must be related to subject matter of original bill, 243 amendment changing ground of relief, 243, note I relief prayed should be equitable relief, 243 relief may be given on, when original bill dismissed, 243, note I not now encouraged, 244 answer viewed in light of, when possible, 244 petition in nature of, by defendant against third parties jointly and separately liable with him, 244, note 5 service of summons on solicitor, 147, note 6 in creditors' suit to introduce matter not apparent on voucher, 467, note 2 CROSS-EXAMINATION. testimony of witness dying before, 281 of witness whose competency is objected to is not waiver, 281 defendant has no right to, after bill taken pro confesso, 343 CUSTODY. party in, for contempt entitled to immediate trial, 335, note 4 DAILY RECORD, THE. is a daily "newspaper," 584, note 4 to sec. 497 DAMAGES. retaining bill to determine question of, 323 what covered by appeal bond, 420 what covered by injunction bond, 696, and note 13 DANIELL'S CHANCERY PRACTICE. authority of, 2, note 4 DAY— IN BALTIMORE CITY. of examiner, length of, 262, note 3 of auditor, length of, 634, note 1 of auditor and master, length of, 653 DEATH. of parties, see "abatement" of witness before cross-examination, effect of on testimony previously given, 281 of party after cause set down for hearing or submitted, 315, note 8 Index. 963 [References are to the pages.] DEATH— CONTINUED. execution of decree after death of party, 33s, note 3 of party after appeal prayed, effect of, 448 DE BENE ESSE; see "Bill to take testimony de bene esse." DEBTS. see "creditors' bills'' equity courts no jurisdiction where less than twenty dollars, 7 authorizing creditors' suits, 454, and notes costs of judgment against executor not debt of estate, 454, note 2 DECLARATORY DECREES; see "Decrees, declaratory." DECREE BY CONSENT. decree by, if agreement within scope of bill, 333 parties must be able to bind themselves, 333, note 2 decree by, not subject to rehearing or appeal, 333-334, 437 should be part of decree itself or endorsed upon it, 437 decree should not be broader than, 437, and note 4 when objection to decree by, should be taken, 437-438 appeal lies from decree by in mortgages in Baltimore city, 438, and note 6, 558 decrees by, not passed in divorce suits, 333, note 2 decrees by, may be passed upon agreement of counsel, 334 unauthorized consent of counsel not binding on married woman as to separate estate, 334 agreement of counsel cannot confer jurisdiction, 334, note 7 to vary decree after enrolment, 357 bill of review does not lie to decree by consent in absence of fraud or mistake, 363 DECREES. see "appeal" see "decree by consent" see "dismissal of bill" see "enrolment of decrees" death before and after, see "abatement" cannot be passed in absence of proper allegations, 327-328 revivor, for recovery of costs, 257 definition of. 324-325 pro forma decree, 324, note 1 final decrees, definition and instances of, 376, and notes, 377 classification of, 325 distinguished from opinion, 325 opinion of court forms no part, 325 appeal does not lie from opinion of court, 325, 326, note 5 opinion and judicial opinion distinguished, 325, note 5 construed with reference to issues joined, 326 whole decree must be looked to in construing it, 326 964 Index. [References are to the pages.] DECREES— CONTINUED. technical terms to be construed in their proper sense, 326 opinion may be considered in construing, 327 opinion gives way when conflicting with, 327 always secundum allegata et probata, 327, 407 cannot be passed in absence of proper allegations, 327-328 the rule on appeal in the absence of exceptions, 328 reserving matters for future decree, 328 case for further directions, what is, 329 relief granted where way clear, other matters reserved, 329 where questions reserved, those not reserved not to be de- cided, 329 directions cannot be given incompatible with decree, 329 should settle whole case, 330 should settle rights and liabilities of all parties to cause, 330 should not be too broad, 330 court may decree between co-defendants and co-plaintiffs, 330- 33i between co-defendants must be based upon subject-matter, 331 equity rule as to decree between co-plaintiffs and co-defend- ants, 331 dismissing bill, see "dismissal of bill" by consent, see "decree by consent" nunc pro tunc on death of defendant before decree, 334 when signature of judge inadvertently omitted, 334 granted as justice requires, 334, and note 10 enforcement of, 335-337 execution or attachment on, may issue within twelve years, 335 process of execution or attachment, when returnable, 335, note 2 execution after death of party or marriage of female party, 335, note 3 reviving of, by scire facias, 335, note 3 attachment of contempt to enforce, 335 fieri facias to enforce, 335 fieri facias not issuable upon order directing payment of money into court to be paid to a person, 335, note 5 attachment by way of execution to enforce, 335, note 5 against corporation, 335, note 6 injunction to compel delivery of estate or effects, 335 by attachment with proclamations, 336, note 7 by sequestration, 336, note 7 enforcing delivery of possession, 336, note 7, 622, 627 delivery of chattels, 336 concurrent use of different writs, 336 writs may be ordered to different counties, 336, and note 9 attachment upon, 336, and note 10 Index. 965 [References are to the pages.] DECREES— CONTINUED. in case of specific performance, 336 in certain cases of violation of injunction, 336 in cases of contempt, 336 further aid of court to carry, into execution, 336 bill to carry, into execution, 336, note 14 law of original decree not examinable in suit to carry decree into execution, 336-337 variation of original decree on bill to carry into execution, 337 miscellaneous. action at law does not lie for recovery of money decreed to paid by equity court in same jurisdiction, 337, note 16 disregard form; are moulded to reach real merits of the con- troversy, 337, and note 2 compared with judgments at law, 337, note 2 relief granted to plaintiff upon terms, 337 relief granted upon conditions, 337 are now general and without recital of facts, 337-338, 364 on appeal, recitals of facts, proof, 338 operation of, not suspended by proceedings for rehearing, 356 parties relying on executed decree not prejudiced by reversal or variation upon rehearing, 357 revision or annulment after enrolment, 357-362 parties to proceedings to vacate, 66-67; see "parties" interference with after lapse of term, 358 when petition lies to vacate, after enrolment, 359 bill of review lies only to final decrees, 363 bill of review, decree by consent, 363 fraudulent, as to persons not parties whose rights are affected, 370, note 3 orders rescinding previous decrees not enrolled generally not final, 383 order vacating, and requiring new answers, discretionary, 388 reversal will not be granted if appellant not injured by, 436, and notes, 437 concurrence of majority of court necessary to reversal of, 440 equally divided court results in affirmance of, 440 affirmance of, makes it law of case in all future proceedings therein, 448 of court of appeals, enrolment and vacation of, 358, 447, note 6 DECREE IN PERSONAM. various proceedings in personam, 153-155, and notes against mortgagor for balance due in foreclosure by formal proceedings, 531 against mortgagor in sales under power of sale, 551, and note 5 against married woman in resale at her risk, 621 966 Index. [References are to the pages.] DECREE IN PERSONAM— continued. injunction operates as, 677 see "specific performance" DECREE IN REM. binds all persons, whether the parties or not, 25, note 2 various proceedings in rem, IS3-ISS> and notes ratified auditor's account, 650, note 1 DECREES, DECLARATORY. statutory provisions, 821-822, and note 1 statute available only where equity has jurisdiction, 822 must be real, not moot, question for decision, 822 discretion of court as to exercise of jurisdiction, 822-823 right of trial by jury, 821, note 1, 293 instances where statute considered, 822, notes 4, 5 not for future contingent questions, 822, note 5 DECRETAL ORDER. see "'appeal" see "decrees'' order overruling plea is not, 186 rehearing not granted after enrolment of, 356 variation or reversal of executed, upon rehearing, shall not prejudice parties relying thereon, 357 setting aside after enrolment, 357, 358, and note 6 original bill to set aside, for fraud, 370 appeal lies from, 377, note 1 to sec. 307 DEFENDANT. use of term, instead of "respondent," 107, note 3 liable only in character in which sued, 104, 128 DEFENDANTS— WHO MAY BE. general rule, 17 infants, see "infants" and "guardian ad litem" married women, see "married women" lunatics, see "lunatics" corporations, see "corporations" United States, 18 States, 18 receivers, 18, 726 alien enemies, 18, note 1 numerous, as parties, 49-50, and notes plaintiff not to be also defendant, 105, and note 4 DEMURRERS. definition, 169 general, 169, note 1 special, 169, note 1 certainty and directness required in, 169, note I when will lie, 170 Index. 967 [References are to the pages.] DEMURRERS— continued. classification of, to bills for relief, 170, note I has no place in orphans' court, 170, note 1 nature of, 170, 182, note 5 not always regarded with favor by the courts, 170, note 2 only directed to points law, 171 filed to bill alone, 171, and note 8 speaking demurrer, 171, note 7 admissions by, 171, 172, note 8 injunction cases, where exhibits not filed, no admission by, 690 does not admit conclusions of law, 172 does not admit fraud, when facts are not stated, 172, note 5 to part of bill, 172-173 federal equity rule as to demurrer to part of bill, 173, note I if good as to part of bill only, when pleaded to whole, 173 may be joined with answers, 172-173, and note 2 plea or answer overruling, 173, note 1 to whole bill overruled, instances, 173, note 3, 4 order overruling, may be appealed, 174, and note 1 practice upon overruling, 174 final decree not passed on overruling, 174 decree pro confesso for want of answer on overruling, 174 vexatious or frivolous, decree pro confesso upon, 174 when defendant, relying on, refuses to answer, 174-175 final decree cannot be entered on overruling, till opportunity for answer given, 175 on overruling or withdrawal of, ten dollars fine, 175, note 4 contempt must be purged before answer allowed, 175, note 4 right to answer not forfeited by, 175, note 4 on allowance of, bill may be amended, 175 appeal lies from order allowing, 175-176 order sustaining, necessarily dismisses bill, 176 affidavit to, 176, and note 1 effect of want of affidavit, 177, note 1 signature of counsel to, 177, note 1 form of, 177 additional grounds of, may be assigned at bar, ore tenus, 177, note 2 if one of several causes assigned good, 177, note 2 to jurisdiction, 177 for adequate remedy at law, 177-178 for want of equity, 178, note 2 to sec. 139 true test of jurisdiction, 178, note 2, 484 for jurisdiction in special court, 178 to substance of bill, 178 for want of interest of parties, 178, 179 for insufficient disclosure of plaintiffs interest, 126 968 Index. [References are to the pages.] DEMURRERS— continued. for want of title in plaintiff, 178 because defendant called on to answer incriminating charges, 840, 179 because bill does not embrace whole matter, 179 limitations, as ground of, 179 for laches, 179 statute of frauds may be relied on by, 179 to form of bill, 179 for want of certainty, 116, 119, 179, and note 3 defect of form to be assigned as special cause of, 179 for multifariousness, 142, 179-180, 135, note 3, 142 for want of parties, 90, 180 for misjoinder of parties, 94, 180 rule for use of, 180, note 7 for want of affidavit, 112, and note 6 to avoid answering incriminating questions in bill, 199, note 8 answer treated as, 218 amendment of, 230-231 proceedings on, to amended bill, 233 supplemental bill, testing propriety of by, 248 witnesses' demurrer, improperly so called, 266, note 4 before and after bill taken pro confesso, 345 order overruling, to whole bill, is in nature of final decree, 378 order sustaining, is in nature of final decree, 378 in injunction cases, 698-699 DEMURRER OF PAROL. in sales of infant's land, 18, note 1 in creditor's suits, abolition of, 452, note 4 DEPOSITIONS. see "evidence" and "commission to take testimony" see "testimony — the taking of" see "examiners" see "witnesses" should show themselves taken agreeably to notice, 266 proof of compliance with notice, 266-267, and note 2 when commission is silent as to time and place, 267, note 1 objection to for taking at different time or place, 267 waiver of right to strict compliance with direction of, 267 presence of counsel and cross-examination of witnesses as waiver, 267 general question at conclusion of, 270, and note 12 DEVISEES. as parties, 69 parties in proceedings to revive, 258 Index. 96 9 [References are to the pages.] DISABILITIES. see "infants," "lunatics,'' "married women" see "plaintiffs — who may be" see "defendants — who may be" total, as to plaintiffs, 13 partial, as to plaintiffs, 13 DISCLAIMER. what is. 219 must be full and explicit, 219 oath to, 219 usually filed as or with an answer, 219 when proper, 219 cannot deprive plaintiff of right to full answer, 219 liability cannot be disclaimed, 219 if proper, bill should be dismissed, 220 DISCOVERY. joinder of parties for purposes of, 29, 30, note 3 DISCOVERY, BILL OF; see "Bill of discovery." DISCRETION OF COURT. see "appeal," pages 385-388, for instances of discretionary orders assignee pendente lite becoming party, 56-57, and note 2 amendment of pleadings, 231, 386, and note 1 amendment of bill after allowance of plea, 187, note 1, 232-233 amendment of bill after allowance of demurrer, 232-233 amendment of the answer, 239 allowance of supplemental answer, 239, 387 as to rules of pleading, 225, note 4 enlarging time for taking testimony, 270 granting of leave to recall witnesses, 273 allowing re-examination of witnesses, 274, 388 allowance of additional testimony, 275, 388 allowance of commission to take testimony of non-resident plaintiff, 280 granting of issues to courts of law, 291 consolidation of suits, 296 granting leave to plead after decree pro confesso, 345, note 8 awarding of costs, 347, 348, 387 awarding of costs on appeal, 348 granting rehearing, 356, 387, and note 8 vacation of enrolment when case not heard on the merits, 359, 362 vacation of enrolment where circumstances require, 360, 362 vacation of enrolment in cases of mistake or surprise, 361, 362 bill of review for new matter, 368 appeal does not lie from discretionary orders, 385, and notes 970 Index. [References are to the pages.] DISCRETION OF COURT— continued. review of, in appellate court, in certain cases, 385, note 1 where court acts on erroneous conclusion of law, 385, and note 2 appeal lies as to authority of court to act according to its dis- cretion, 385-386, and note 3 improper exercise of, is subject of appeal, 386, and note 4 injunction bonds, 387, and note 4, 694 trusteeship, filling vacancy in, 387 rehearing, dismissing petition for, 387, and note 7 hearing, application to appoint early day for, 387-388 continuance of case, order refusing, 388 vacation of decree and requiring new answers, 388 appearance of witness in open court to correct testimony, 388 children of tender age, allowance of testimony of, 388 as to staying of proceedings on appeal by bond, 415-416 with respect to multifariousness, 134-135 rate of commissions to conventional trustee, 657, 658-659 allowance to wife for fees in divorce cases, 669 in injunction cases, 681-683, 7 01 , note 5 in receivership cases, 737 in specific performance cases, 763-764 in sales before final decree, 831 in declaratory decrees, 822-823 DISMISSAL OF BILL, see "bill," "decree" for want of necessary parties, 93, note 8 as to one party, 95 for misjoinder of parties, 96 for multifariousness, 144 for failure to file replication, 225 effected by order sustaining demurrer, 176, 378, note 5 for non-compliance with rule security for costs, 299 for failure to comply with rule further proceedings, 299 under rule further proceedings not a bar, 300, note 2, 332, note 1 order of, under rule further proceedings, 332 after decree to account, how obtained, 299, note 2 absolute, bars another suit for same matter, 331 absolute but not upon its merits, no bar, 331-332 if absolute, without words of qualification, is conclusively pre- sumed to be upon the merits, Martin v. Evans, 85 Md. — without prejudice, does not bar further suit, 332 without prejudice does not affect rights of plaintiff, 332 decree dismissing absolutely when it should be without preju- dice, 332 where injunction dissolved, 716, and note 4, 715, note I Index. 971 [References are to the pages.] DISMISSAL OF BILL— continued. for want of jurisdiction in equity, without prejudice, 332 without prejudice where relief inconsistent with scope of bill, 332 removal to court of law instead of, 333 where some of defendants in default, effect of dismissal, 340, note 8 costs upon, 347, note 2 costs on dismissal for want of jurisdiction, 348, note 2 costs of dismissal without prejudice, 351, note 4 DISSOLUTION. of injunction, see "injunctions" of corporation, see "receivers" of partnership, see "receivers" DISTRIBUTEE. represented by executor, 39 DISTRICT OF COLUMBIA. writ of tie exeat used in, 300, note 3 writ of sequestration used in, 302, note 6 DISTRINGAS. writ of, to compel appearance of corporation, 150, note 3 compel answer from corporation, 302, note 5 to enforce decree against corporation, 302, note 5, 335, note 6 DIVORCE. where bill may be filed, 7 non-resident defendant summoned by publication, 152 decree by consent not passed in suits for, 333, note 2 order refusing wife allowance for counsel fees is appealable, 379, note 10 counsel fees in action for, 669-670 DUPLICITY. in pleas, 183, note 6 ENROLMENT OF DECREES. when decree is enrolled, 354 » correction and revocation of decrees before, 355 clerical and accidental errors in, how corrected before, 355 interlocutory orders revocable by petition, 355 rehearing not granted after, 356, and note 10 revision or annullment of decree after, 357, and note 1, 358 variation after by consent or as to matters of course, 357 courts may not disturb their final decrees after, 357-358 method of annulling or reversing decree after, 358, and note 6 fund in court, vacation of decree distributing, 358, note 6 where decree after enrolment may be vacated by petition, 359 petition to set aside, to be accompanied with legal evidence, 359, note 1 972 Index. [References are to the pages.] ENROLMENT OF DECREES— continued. when case not heard on the merits, 359, and note I where circumstances require, in the discretion of the court, 359, 360, and note 1 neglect of counsel to appear not sufficient to justify vacation of, 360, note 1 where decree entered by mistake or surprise, 361, and notes 1, 2 where decree obtained by surprise, 361, note 2 discretion of court in vacating, 362 appeal lies from action of court as to vacation of, 362, 385, note 1 time for filing petition for vacation of, 362 vacation of decree obtained by fraud, 370 order refusing or allowing vacation is in nature of final decree, 378 court of appeals, power over its decrees after, 447, note 6 court of appeals decrees, rule as to enrolment, 358 auditor's account, reopening before and after, 652 EVIDENCE. see "testimony'' and "commission to take testimony" see "depositions" i l! see "witnesses" | j "i see "examiners" bill of review for newly discovered, see "bill of review" amendment to bring bill within issue made by, 235 bill sworn to, as, 281 answer as, see "answer," and 281 remand of cause for further, 423-424, and notes admissibility of not reviewable on appeal unless excepted to below, 403-404 see "appeal" want or insufficiency of, do not require exceptions below, 404 hearsay, objection to must be raised below, 404 leading questions, must be excepted to below, 404 parol evidence varying written instruments must be excepted to below, 405, and notes effect of, not excepted to, on appeal, 405 papers not strictly in evidence, need not be excepted to below, 406 EXAMINERS. see "witnesses" see "testimony — the taking of" office of. 262 special examiner, 262 authority of, 262 compensation, 262, note 3 who pays, 262, note 3 Index. 973 [References are to the pages.] EXAMINERS— continued. payment of allowances to, how enforced, 262, note 3 cannot determine on competency or relevancy of evidence, 263 cannot determine as to competency or privilege of witnesses, 263 day of, what constitutes, 262, note 3 duty of, in taking testimony, 264-265 to report to court persons disobeying subpoena, 265 compensation of witnesses before, 265, note I subpoena issued by, executed by sheriff, 265, note 1 method of taking testimony before, 268-270 may have clerk to write down testimony, and per diem of, 268, note 5 testimony of both parties taken before same, 269 duty to file testimony with clerk of court on conclusion of ex- amination of witnesses, 271 signature and certificate of, to return of testimony, 271 need not make return of testimony till fees paid, 271, note 2 need not take depositions unless satisfied as to payment of fee, 271, note 2 exceptions before, filing of, mere noting of, insufficient, 413 EXCEPTIONS. see "answers" to answer in injunction cases, see "injunctions'' for insufficiency do not lie to answer of infant, 212, note 1, 202 and note 11 see "appeal" see "impertinence" see "scandal" see "testimony"' see "auditors and their accounts" to testimony, see "testimony," "evidence" for irregularity in commission to take testimony, onus of proof, 267, note 2 upon trial of issues at law, 294 to leading questions, 404 below, for use on appeal, must be definite, 410 instances of exceptions below for use on appeal, 411 to competency of witness, 411 to admissibility of evidence, 411 to sufficiency of averments of bill, 411 to account stated, 412 filing of, 412-413 noting of, by examiner, without filing, insufficient, 413 to jurisdiction to be filed below, 413-415, and notes to sale under power of sale, see "foreclosure of mortgages" to sale under assent to decree, see "foreclosure of mortgages" to sale under decrees, see "sales under decrees" 974 Index. [References are to the pages.] EXECUTION. of decrees, see "decrees" staying of by appeal and bond, see 'appeal bonds" may issue for costs, 347, note 2 EXECUTOR. as representative party, 38-39, and notes suit by foreign, 13, note 2 when a necessary party, 50-51 renouncing office need not be party, 50, note 1 in creditors' suits, as party, 70-71, and notes where a party in proceedings to revive, 258 answer of, 214 not liable for costs when acting in proper discharge of duty, ' 347, note 2 EXECUTOR DE SON TORT. is not sufficient representative of estate, 51, note 1 EXHIBITS. with bill, to be filed before writ issues, 146, and note 5 in injunction cases, 689-692 in receivership cases, 729 FEDERAL COURTS. parties in, see "parties'' jurisdiction of, not ousted by joining formal parties, 34 FEES. see "counsel fees" of examiners, 262, note 3, 271, note 2 of commissioners to take testimony, 262, note 3 of clerk to commissioner to take testimony, 262, note 3 of witnesses before examiner, 265, note 1 itinerant charges of witnesses before examiner, 265, note I of auditor and master, 653, note 4 of auditors, 353, 634 FIERI FACIAS. does not lie to enforce order directing payment of money into court, 289, 335, note 5 supersedes writ of sequestration, 301, note 4 to execute decree, 335 FILES; STRIKING OR WITHDRAWING PAPER FROM. see "ne recipiatur" taking paper off, for formal irregularity, impertinence, scandal, or because filed too late, 310, and note 1 informality waived if no objection made, 310-311 mode in Baltimore city of striking paper from files, 311, note I papers may be withdrawn only on leave of court, 311, and note 3 in Baltimore city certain papers may be withdrawn upon leav- ing copies, 311, note 3 Index. 975 [References are to the pages.] FILING. of all papers in a case, 107, and note 1 the bill, 107-108 date of, of bill not altered by amendment, 237 FINAL DECREES. see "appeal" definition of, 376, and notes I, 3 instances of, 377 FINES. for violating rules of court, 9 payable to State, 9, note 1 on overruling demurrer, or withdrawing without leave, 175, note 4 on overruling plea, or withdrawing, etc., 175, note 4, 188, note 4 order imposing, for contempt not final, 380 FORECLOSURE OF MORTGAGES— IN GENERAL. where suit to be instituted, 6 where land lies in more than one county, 6-7 trustee under railway mortgages, 45 incumbrancers as parties, 59-64, and notes by junior mortgagees, senior mortgagees not necessary par- ties, 60, note 3 of second mortgage, parties to, 60, and notes 1, 2, 61, and note 2, 62, and notes of senior mortgage, parties to, 64, and notes intervention of senior mortgagee in foreclosure of second mortgage, 08 parties to bill to set aside, of railroad, 67 plaintiffs, who should be, 75 defendants, who should be, 75-77, and notes order dismissing petition to restrain is in nature of final de- cree, 378 the various proceedings stated, 527 strict foreclosure — procedure, 527-528, and note effect of decree, 527-528 has disappeared from practice, 528 foreclosure by formal proceedings, history, 527, 528-529, and notes 1, 3,6 liability of sureties on trustee's bond, 528, note I to sec. 447 present code provisions, 529 parties to, see "parties" defendant entitled to have a day given for payment, 529-530, and note 1 this privilege may be waived, 530 one month usually allowed, 530 right to have a day subject to certain code provisions, 530, 830, note 5 to sec. 725 976 Index. [References are to the pages.] FORECLOSURE OF MORTGAGES— IN GENERAL.— contin'd. decree to account necessary; exceptions, 530, and note 5 statement in decree of amount due, 530, note 5 sale must be for cash unless consent otherwise, 530-531, 578, note 1 trustee to sell may be authorized to collect rents, 531 plaintiff should not be trustee, 531, note 8 decree in personam against mortagor for balance due, 531 statutory provisions, 531 when decree may be rendered, and other matters, 531 act of 1826, ch. 192, provisions of, 532-533, and notes applicable to mortgages in city and county of Baltimore, 527, 532 matters in relation to, 532-533, and notes act of 1836, ch. 249, provisions of, 533-534, and notes related exclusively to city of Baltimore, 527, 533 FORECLOSURE OF MORTGAGES UNDER POWER OF SALE, see also "sales under decrees" history and purpose of legislation respecting, 534-535, and notes 1-3 proceedings independently of statute, 534 the code provision, 534-535 proceeding is ex parte and is not a suit, 535 proceeding not equivalent to decree of foreclosure, 535, note 7 appearance fee not allowed, 535, note 7, 675, note 3 mortgages referred to in statute are technical mortgages, 535, note 5 no provision for sale before default, 535, note 6 nature of jurisdiction to sell, 535-536 within general chancery powers, 535-536 sales subject to chancery rules, 536 sales incomplete until ratified by court, 536 statute of frauds does not apply, 536 power of sale substituted for decree of sale, 536 valid power of sale is foundation of jurisdiction, 536 proceeding by decree of foreclosure when power of sale is void, 545, note 2 derived exclusively from contract of parties, 536 enables mortgagee to sell property upon default, &c, 536-537 third party purchaser at sale under invalid power, 536, note 2 third party purchaser at irregular sale, 550, note 3 mortgagee purchaser at sale under invalid power, 536, note 2 nature of the power of sale, 537 power coupled with an interest, 537 Index. 977 [References are to the pages.] FORECLOSURE OF MORTGAGES UNDER POWER OF SALE — CONTINUED. appendant to estate, and part of security, 537 passes with assignment of mortgage, 537 void if there is no proper person to execute it, 540, note 2, 541 not affected by death or lunacy of mortgagor, 537, and note 1 not affected by certain other proceedings, 537, note 1 effect of insertion and execution of power, 537 power not to fail because of inability of trustee, 539, note 3 is divisible, 537, 542 may be exercised by married woman, 540 sale by agent of mortgagee, 539, note 1 duty of mortgagee in making sale, 538-539 bound to act with strict impartiality, 538 ! may purchase at his own sale, 538, note 1. strictness in passing upon sale to mortgagee, 538, note 3 inadequacy of price or fraud in the sale, 538, notes 2 and 3, 595, note 2 mortgagee is constituted trustee, 538-539 prudence to be exercised, 539 assignee of mortgage, sale by, 539-540 power of sale exercisable by assignee in fact or law, 539, and note 3, 540 assignment for purpose of enforcing payment, 539 trustee and successor in trust, 539-540 sale by person specially named in mortgage, 540 person other than mortgagee or assigns, must be specially named, 540, and note 2 attorney must be specially named, 540 power given to third person is a collateral power, 540 illustrations of the rule, 540-541, notes 2 and 5 selection of donee of power, 540-541, note 5 corporations cannot exercise power of sale, 541 assignee of corporation may exercise power, 541 attorney of corporation cannot unless specially named, 541 other matters respecting the power of sale, 541-543 where mortgagor went into insolvency, 541-542, notes 1 and 2 the present statutory provision in full, 542, note 2 divisible power — how exercisable, 542 defective sales under powers, in certain cases, cured by statute, 542-543 parties to the proceedings, 543 general equity principles do not apply, 543 only parties to the mortgage should be parties, 543 subsequent incumbrancers may come in, 543, 552, note 6 who may except to the sale, 543 62 978 Index. [References are to the pages.] FORECLOSURE OF MORTGAGES UNDER POWER OF SALE — CONTINUED. advertisement of sale, 543-544 see "sales under decrees," pages 570-572 mortgage may state the notice to be given, 543 must be given as prescribed, 571, note 4 where mortgage does not contain agreement as to, 543 at court-house door, 543-544 of property brought into Baltimore city by annexation act, 543- 544, note 1 where impossible advertisement was prescribed, 544, note 1 filing mortgage notes, not a condition of sale, 544 court may order notes to be filed, 544 filing assignment of mortgage in sale by assignee, 544 the bond, 544-545 is the beginning of the trust, 544 the only preliminary requisite to sale, 544 upon filing, proceedings are in court, 544 1 certain defect in, 544-545 defect in may be ground of exception to sale, 545 defect in not ground for attack collaterally, 545 when must be filed, 545 if security insufficient proper may be required, 545 where sale must be made, 545-546 must be made in county or city where land lies, 545, and note code provision is mandatory, 545, and note 2 objection when made by a stranger, instance, 545-546, note 2 case under the annexation act, 546, note 1 to sec. 464 terms of sale, 546 clause in mortgage respecting, 546 meaning of "terms" and "contingencies," 546 where no terms prescribed in mortgage, 546 instance of sale for cash only, 546 report of sale, jurisdiction of court upon, 546-547 no jurisdiction before filing report, 546-547, and note 3 purpose of report that court may hear objections, 547, and note 4 to be under oath to court having jurisdiction, 547 proceedings on as if sale made under decree, 547-548 objections, court has full power to determine, 547-548 objection that sale made improperly, 548, raote-i objection only to mode or manner of sale, 548 objection to certain proceedings not allowable, 548 objection to title of purchaser, 548, note 2 objection by mortgagor that mortgage invalid, 548, 549, and note 1 to sec. 468 ratification determines that mortgage is valid, 549, and note 2 objection as to usury, 549 Index. 979 [References are to the pages.] FORECLOSURE OF MORTGAGES UNDER POWER OF SALE — CONTINUED. objection as to taking possession, 549 objection that cash payment at sale not made, 549, note 4 by any person interested in the property, 543 want of interest of objector, 549, note 4 sale passes title of mortgagor, 549-550 where easement abandoned by mortgagor, 549-550, note 1 persons not parties to mortgage not affected, 550 conveyance of property to purchaser, 550, and note 4 irregular sale may transfer mortgage claim, 550, note 3, and 536, note 2 to sec. 454 expenses of sale reasonably necessary, 550 commissions not allowed unless provided for, 550, and note 1 statutory provisions — certain ones, 551-552 writ of possession by purchaser, 551 purchasers remedies against tenants, 551 tenants' remedies against purchaser, 551 no lease after mortgage valid against mortgagee, 551 resale may be ordered, and trustee appointed, 551 resale without order of court, 551 decree in personam against mortgagor, 551, and note 5 surplus proceeds of sale, distribution of, 551-552, and note 6 Baltimore city, sales in, 552 statutory provisions, 552 notice by advertisement in, 552 injunction to stay sale, 552-553 statutory provisions, 552-553, 682, note 4 provision declaratory of equity, 553 how far statutory provision binding, 553, and note 1 allegations in bill for, 553 to what sales the statute relates, 553, 555, note 1 giving bond and dissolving injunction, 553 FORECLOSURE OF MORTGAGES UNDER ASSENT TO A DECREE, see also "sales under decrees'' statutory provisions, 553-554, and notes , decree for sale of personal chattels, 554, note 7 nature of jurisdiction, 555 applicable exclusively to Baltimore city, 555 summary remedy, 555 strict compliance with statute necessary, 555 jurisdiction limited to cases of assent to decree, 555 general chancery jurisdiction over mortgages not limited, 555. SS8 decree for sale conclusive against collateral attack, 555 980 Index. [References are to the pages.] FORECLOSURE OF MORTGAGES UNDER ASSENT TO A DECREE—CONTINUED. form of proceeding for sale, 555-556 ex parte until after sale, 555 no summons or notice necessary to any one, 555-556 to obtain decree, only necessary to file mortgage and petition, 555 parties, 556 mortgagee or assignee to file petition, 556 beneficiaries not to be parties, 556 neither prior nor subsequent incumbrancers to be, 556 when a decree may be passed, 556-557 at any one of the periods limited, &c, 556, and note 1 when before default, no sale until deiault, 556 when before default, decree is prospective, 556-557 pending an action of ejectment, 557, note 1 after default, 557, and note 3 usual form of with respect to, 557 decree for sale appoints trustee, 558 power of trustee to sell in case of mortgagor's insolvency, ap- plication, 558, note 1, and 542, note 2 decree prescribes terms of sale, 558 : decree does not determine amount due, 558 not passed in exercise of special jurisdiction, 558 not by consent, 558 appeal from the decree for sale, 558-559 may be taken before other proceedings are had, 558 appellate court reviews proceedings and determines upon de- cree, 558 that proceeding not within act, proper subject of appeal, 558 from order for sale of chattels, 558-559 suspending sale, upon petition, 559 when mortgagor not in default, &c, 559 original bill to suspend sale, 559, and note 4 order suspending not final, 559-560 appeal from order dismissing petition to suspend, 560 instances of orders suspending sales, 559, note 2 trustee's bond, required by code, 560 must be filed before sale, 560 failure to file bond — sale not void, 560, and note 4 statement of claim, under oath, 560 statutory provision, and purpose, 560, and note 1 to sec. 482 who should make affidavit; trustee, 560-561 before what officer affidavit to be made, 561, note 2 to be filed before the sale, 561, and note 5 failure to file, objection to ratification, 561, and note 6 statement of amount due not conclusive, 561 erroneous statement may be corrected by auditor, 561 Index. 981 [References are to the pages.] FORECLOSURE OF MORTGAGES UNDER ASSENT TO A DECREE — CONTINUED. erroneous statement no objection to sale, 561-562 mortgage note need not be filed, 562 practice to require filing mortgage note is prudent, 562 report of sale, statutory provisions, 562 proceedings thereon, 562 allegations and proof to vacate sale, 562, and note 2 court may reject and set aside sale, 562 commissions and expenses when sale is set aside, 562, note 3 certain statutory provisions, 562, and note 4 entries of satisfaction of decrees — who may make, 562, note 4 exceptions to ratification, 562-563 propriety of decree to be inquired into upon, 562-563, and note 1 similarly on appeal from decision on exceptions, 562-563 objections of infancy and payment, 563, and notes 2 and 3 third parties rights inquired into upon ratification of sale and not before, 563 objection to title by purchaser, 563 mortgage note to be produced at demand of purchaser, 563 surrender of notes may be required by mortgagor, 563 usury no objection to ratification of sale; examinable before auditor, 563 ratification, effect of, 564 usual legal intendments applied to ratified sale, 564 examination of in collateral proceeding, 564 purchaser acquires interest of parties to cause, 564, note 2 taxes and ground rent, as affecting title of purchaser, 564, note 2 FOREIGN. see "aliens" , executors and administrators, suits by, 13, note 2 corporations, suits by, 13, note 2 receivers, suits by, 13, note 2, 728 language, translation of, 312, note 5 FORFEITURE. questions subjecting defendant to, need not be answered, 199, note 8 FORMS. of bill, address, 109, note 2 of bill, no, note 12 of conclusion of prayer for process, 114, note 1 of prayer for general relief, 128, note 2 of demurrer, 177 of replication, 222, of infant's answer, by guardian, 200, note 7 of petition for leave to take testimony, 263, note 3 982 Index. [References are to the pages.] FORMS— CONTINUED. of order granting leave to take testimony, 264, note 3 of motion and order for security for costs, 298, note 1 of order dismissing bill — security for costs, 298, note 1 of commitment for contempt in Baltimore city, 303, note 2 to sec. 243 of affidavit, 312, note 5 of order taking bill pro confesso, 341, note 10 of allegation of possession of realty in creditors' bill, 459-460, note 3 of decree for sale of land in creditors' bill, 466 for sale of mortgaged property under assent to decree, 557, order granting injunction, 693, 700-701 order appointing receiver, 730, note 5 of receivers' bonds, 722, note 7 of reference to auditor and master, 654, note 1 of final ratification of auditor's report, 652, note 1 FRAUD. see "bill to vacate decree for fraud" see "injunctions" see "receivers" see "specific performance" see "statute of frauds" certainty required, when alleged in bill, 118 demurrer does not admit, when facts not stated, 172, note 5 plea accompanied by answer, when charged in bill, 184, and note 1 questions of, eminently suitable for consideration of jury, 291, note 8 in case of, original bill lies to annul decree after enrolment, 358, and note 6, 370 , petition does not lie to vacate decree obtained by, 370 must be established by proof, in impeaching decree for, 370 time of taking appeals in case of, 442-443, and note 2 allegation of, on oath, to extend time for taking appeal, 443 FRAUDULENT ACTS, VACATION OF. see "vacation of fraudulent acts by non-judgment creditors" parties to proceedings, 65-66, and notes by creditors' bills, 451, note 1 trustee in insolvency necessary party, &c, 40 FUND. when petition or bill lies to assert claim to fund in court, 307- 308 costs out of, see "costs" commissions out of, see "commissions" counsel fees out of, see "counsel fees" setting aside of decrees for distribution of fund in court after enrolment, 358, note 6 Index. 983 [References are to the pages.] FUNERAL EXPENSES. debt of decedent, 453, note 6, 455 FURTHER DIRECTIONS, case for, what is, 329 GUARDIAN. see "guardian ad litem" see "guardianship" service of process on when infant sued, 147, note 3 answers for infants, 212 answers for lunatics, 214 order directing, to bring money into court not appealable, 384, note 4 admission in creditors' bill case, 462, note 4 GUARDIAN AD LITEM, see "guardian" definition, 18-19 when appointed, 19, and note 2 power to appoint incident to all courts, 19 differ essentially from guardian of the person, 19, note 3 appointed upon petition of infant, or plaintiff or interested party, 19 no person with adverse interests to infant appointed, 19, on death or refusal to answer, court may appoint another, 19, note S cannot be compelled to accept trust, 19, note 5 if he accepts, may be compelled to appear and answer, 19, note S appointment of deputy clerk as, in Baltimore city, 19, note 5 fee for filing answer, 19, note 5 petition for appointment of, 19, and notes 6, 7 commission to assign guardian superseded, 19-20, and note 7 duty of, in answering, 20 appeal on behalf of infant, 20, 428, and note 3 answers for infant, 212 answers for lunatic, 214 GUARDIANSHIP. see "guardian" inherent equity jurisdiction over infants, 819 equity may appoint, 819-820 female infants between 18 and 21 years of age, 820 application by ex parte petition, 820 other matters, 820 instances of, in Baltimore city, 820, note 1 to sec. 717 984 Index. [References are to the pages.] HABERE FACIAS POSSESSIONEM. see "sales under decrees," sub-title "enforcing delivery of pos- session'' answer as evidence in petition for writ, 209 enforcing delivery of possession by writ in nature of, 336, note 7, S28, 533 HEARING. amendment at, 231, note 7 cause stands for, after ten days from return of evidence, 313 time may be waived and cause heard before ten days, 313 causes set down for on application of party, 313, note 2 discretion of court as to appointing early day for, 387-388 equity rule in Baltimore city as 'Setting down for, 313, note 2 setting down for, when several defendants, 314, and note 4 who may have cause set for, 314 duty of party to be present or represented at, 314, and note 8 must be in open court, except in some cases, 314, note 6 when a cause is heard, 314 argument not necessary to constitute a hearing, 315 submission of cause without argument, 315, and note 8 death of party after cause set down for, or submitted, 315, note 8 procedure as to submitted case, 315, note 9 cause submitted for final decree to be decided as then pre- sented, 315 objection that bill does not entitle to relief, 31s, and note 1 defence of limitations must be specially pleaded, 316 defence of usury must be specially pleaded, 316 defence of statute of frauds must be specially pleaded, 316 when bill discloses no claim against defendant when limita- tions pleaded, 316 steps not insisted upon deemed waived, 317 objections for multifariousness or misjoinder, 95, 317 objection for want of parties, 91-92, and note 2, 317 objection for want of jurisdiction, 317 retaining bill till question of title determined at law, 322 retaining bill after allowance of plea or demurrer, 323 retaining bill, other instances of, 323, and note 9 see "decrees," "dismissal of bill" in creditors' bill, 462 final hearing on bill and answer, 317-322 see "injunctions" what hearing on bill and answer admits, 317-318, and note 2 infant plaintiff does not admit truth of answer, 318, note 2 what hearing on petition and answer admits, 318-319 plaintiff alone may set cause down for hearing on, 319 not affected by change of old rule of answer as evidence, 208, 210, and note 6, 319 Index. 985 [References are to the pages.] HEARING CONTINUED. answer taken to be true in every particular, 320, and note 2 mere matter of opinion or idle assertion, 320 effect of matter in bill neither admitted or denied, 320-321 filing replication after case set down for hearing, 321, 322 effect of filing replication, 321 • withdrawing replication, set for hearing on bill and answer, 321 application for order to enforce delivery of possession, 626, note 6 HEIRS. as parties, 69 in proceedings to revive when realty involved, 258 HUSBAND AND WIFE. husband a formal party in suit by wife to enforce marriage set- tlement, 33-34 publication against, 157, note 6 answer by. 211 where wife defendant in stiit brought by husband, she answers separately, 20, 21, note 4 IMPERTINENCE. defined, 228 test of, 228 nothing irrelevant which may have influence on suit, 228, pertinent and impertinent matters inseparably mixed, all ex- punged, 229, note 6 long recitals, digressions, etc., impertinent, 229, note 6 struck out at cost of party filing it, 229, and note 7 must be fully made out, to be struck out, 229, note 1 exceptions for, 229 practice on filing exceptions for, 230 demurrer does not lie for, 230 if exceptions sustained, objectionable matter expunged, 230 when exceptions to be taken, 230 waiver of objection, 230 INCRIMINATING QUESTIONS. demurrer to bill containing, 199, note 8 need not be answered, 198, note 8 in bill of discovery, 840, and note 3 INFANTS. see "next friend" see "guardian," "guardian ad litem," "guardianship" suits by, 14 incapable of suing by themselves, 14 sue by guardian or prochein ami, 14 suits against guardian by, 14, note 1 infancy to be proved, in suits by, 14, note 1 986 Index. [References are to the pages.] INFANTS— CONTINUED. solicitor to have written authority of next friend for use of his name, 14, and note 4 suits by State for the use of, 14, note 3 •suits against, 18 defend by legal guardian or guardian ad litem, 18 court, on application, to require answer of legal guardian, 18 court may appoint solicitor to defend, 18, note 1 when sued for sale of real estate, formerly parol allowed to de- mur, 18, note 1 to sec. 15 service of process on, 147 order of publication binding on, 157 common form of answer of, by guardian, 200, note 7 exceptions do not lie to answer of, by guardian, 202, 212, note 1 answer by guardian, 212 confirmation of contract for sale of land, 480-481, note I INFORMATION, see "relator" use of name as relator — authority to solicitor, 14 included in term "bill," 107 INJUNCTIONS. ■ to restrain infringement of patent, defendants in, 30, note 9 abatement of suit when granted, 252, note 6 to compel delivery of estate or effects, 335-336 costs to innocent person charged with violating, 352 in creditors' suits to stop proceedings at law after decree of sale, 474-475, and notes procedure to prevent connivance between creditor and execu- tor, 474, note 1 in creditors' suit, when execution issued in lifetime of debtor, 474-475, and note 2 costs where lien creditors are enjoined, 475, note 2 in mortgage foreclosure cases, 552-553, 559, and note 4 in specific performance cases, see "specific performance'' in receivership cases, see "receiver'' appeal in certain cases, see also pages 388-394, 397-398, 699-700 order partly extinguishing, is in nature of final decree, 378-379 order declaring dissolution of, unless amendment made by certain day, not final, 380 appeal lies from order refusing to dissolve, 390, and note 2 appeal lies from order continuing, 390 setting cause down for further hearing does not defeat right to appeal from order refusing to dissolve, 390 demurrer treated as answer on appeal from order granting or refusing to dissolve, 391, and note 3 Index. 987 [References are to the pages.] INJUNCTIONS— CONTINUED. answer to bill granting or refusing to rescind, must appear in record, 393 affidavit to answer, 393, 394, and note 4 appeal from order granting, when co-defendants have not an- swered, 394 objection to, for want of jurisdiction in lower court, on appeal, 394 dissolution of, order for appealable, 394, and notes appeal from order refusing to grant, 397-398, and notes 1, 2 definition and classification, 677-678 definition of injunction, 677 restraining orders, of a similar nature, 677 preventive and mandatory, definitions, 677 interlocutory and final, definitions, 677-678, and notes 5, 6 ancillary, 678 injunctions at law, 678, note 3 injunctions in insolvency cases, 678, note 3 jurisdiction; remedy at law, 678-679 plain, adequate and complete remedy at law, 678 statutory provision modifying the rule, 678-679 mandatory Injunctions, 679-680 jurisdiction independently of statute, 679, and note 1 in negative form, 679, and note 2 p upon final hearing, 679-680, and note 3 present statutory provisions, 680 ancillary injunctions, 680-681 dissolution or continuance of, 680 instance, specific performance case, 680-681, and see 761-762 principal cases in which used, 681 whether ancillary or not, material upon motion to dissolve, 681 discretion of the court, 681-683 required in exercise of power to grant, 681 granting, not ex debito, 681-682 subject of appeal, 682, 385, note 1 not awarded in new or doubtful cases, 682-683 granting, to be exercised with caution, 683 practice of Chancellor Bland, 681, note 2 right to an injunction, 682, note 3 plaintiff has right to demand decision on his bill, 682, note 3 discretion in injunctions against judgment at law, 682, note 4 recent statutory provisions, 683-684 granting injunctions, 683, and notes motion to dissolve same, 683-684 appeal, 684, and note 12 orders respecting possession and income of property, 684 orders binding upon knowledge, 684 988 Index. [References are to the pages.] INJUNCTIONS— CONTINUED. Interlocutory Injunctions. nature of, 684 province is to preserve property in controversy, 684 object is to prevent threatened wrong, 684 purpose served by being obeyed until final decree, 684, note 2 when granted, 685-686 may be upon filing bill, without summons, 685, and note 1 judge may take time and give notice to parties, 685 restraining order until hearing, 685, note 2 order in such case, 685, and note 3 defendant may file answer at once, 686 injunction before bill filed, 685, note I judge may grant at any place in circuit, 685, notes 1, 8 on Sunday, 685, note 1 when answer must be considered, 686-687 whenever filed before application disposed of, 686 denial by answer of equity of bill, 686, and note 2 averments of the bill and answer, 686 petition in pending cause, 686-687 when subject-matter and parties are in court, 686 instances of petitions, 687, and note 2 code provisions, 687 statement of case in the bill, 687-689 right to injunction depends upon sufficiency of facts, 687, 689, note S if facts as stated not full, &c, no injunction without notice, 687 clear statement of facts necessary, 687 candid disclosure necessary, 687 all material facts to be stated, 687-688 no misrepresentation or concealment, 688, and note 3 strong prima facie case to be presented, 688-689, and note 5 evidence to be presented with the bill, 688 averments must be of facts, 689 irreparable damage or irremediable injury, 689, and note 4 instances of the application of the rule, 688, note 2, and 689 exhibits with the bill, 689-691 general rule with respect to, 689-690, and note 1 non-production of, satisfactory reason for, 690 record or written evidence, 690, and note 3 failure to file, consequence of, 690 on appeal or motion to dissolve, 690-691 defect not waived by demurrer, 690 records in Baltimore city, 690, note 2 on motion to dissolve, 710 , '1 exhibits, instances of rule as to, 691-692 evidence of debt, written instrument, 691 mere oath of plaintiff insufficient, 691 Index. 989 [References are to the pages.] INJUNCTIONS— CONTINUED. written contract to be produced, 691 other instances, 691-692, and note 2 prayer for injunction, 692 prayer of bill to specify relief desired, 692 injunction to be specially prayed for, 692, and note 2 prayer for process of injunction not necessary, 692, 115, and note 6 affidavit to the bill, 692-693 bill must be sworn to, 692 who may make affidavit, 692-693 where affidavit not necessary, 693, and note 4 injunction granted on equity admitted by answer although bill not under oath, 693, note 1, 710-711 order for injunction, 693 form of order, 693 how construed, 693 granted by solicitor in certain cases, 693, note 1 certain orders; 693, note 2 bond; discretion of court, 694 in the discretion of the court, 694, 387 discretion not reviewable on appeal, 694, note 1 former practice and statute, 694 in suits to stay execution at law, 694 practice in all cases to require bond, 694, and note 1 instance where bond not required, 694, note 7 bonds, other matters regarding, 695-696 defect or deficiency in, 695, 710 where no bond filed, when should be, 69s, and notes 2, 3 purpose of condition of bond, 695 penalty of in suit to stay execution, 695, and note 5 discharge of bond by final decree, 695 in suit to stay sale of property under power of sale, 695-696 in suit by executor to stay proceedings at law, 696 generally taken in name of State, 696 who may sue on, 696 no action on till after termination of cause, 696 no breach until defendant restrained, 696 liability of, 696, and notes 9, 13 clerks may approve sureties on, 695, note 2 court cannot discharge surety, 695, note 2 execution by attorney in fact, 695, note 4 no officer of court in Baltimore city to be surety, 696, note 8 writ of injunction, 696-697 when may be issued, 696-697 form and contents, 697, and note 1 to whom addressed, 697, and note 1 990 Index. [References are to the pages.] INJUNCTIONS— CONTINUED. how long binding, 697 when binding, 697 amendment of bill, 697-698 dissolution of injunction on, 697 not for trivial or unimportant amendments, 697 when material alteration in bill made, 697, and note 1 saving injunction on granting leave to amend, 697 instances, 697-698, and note 3 after motion to dissolve, 698 proceedings by the defendant, 698-699 defendant may pursue usual course of pleading, 698 may appeal from order granting injunction, 698 may move to dissolve injunction, 698 demurrer to test sufficiency of bill, 698 demurrer, proceedings on, 698-699 appeal from order granting injunction, 699-700 after filing answer, 699, 390-394 the answer not considered, 391-393, 699 affirmance or reversal upon sufficiency of bill, 699, 390-393 affirmance, remand for further proceedings, 699 reversal and proceedings thereon, 699 effect of appeal with bond as stay of injunction, 699-700 act of 1890, ch. 32, 699-700 see "appeal" and "appeal bonds" Motion to dissolve. nature of motion; when made, 700-701 what the motion calls upon the plaintiff to do, 700 defendant may move after filing answer, 700 hearing upon plea or demurrer, 700, note 3 form of order in respect to, 700-701 question presented on motion may not involve the merits of the whole case, 700, note 1 if averments of bill are untrue, defendant should move, 700, note 1 delay in making motion, 700, note 2 procedure on filing motion, 700, note 4 rules in Baltimore city, 700, note 4 time and terms of hearing motion, 701, notes 5, 6 motion under recent statutory provision, 683-684 decision on motion; effect of; dismissal of bill, 701-702 not necessarily final, 701, and note 1 conclusion of court at 701 if injunction ancillary, and motion granted, bill retained, 701, and note 3, 681 if injunction not ancillary; bill dismissed, 701-702, and note 4 ; 681 Index. 991 [References are to the pages.] INJUNCTIONS-CONTINUED. answers of all defendants should be first filed, 702 the general rule is as above stated, 702, and note 1 exceptions in several cases, 702 answer under oath, 703 answer must be under oath, 703 whether required by the bill or not, 703 code provisions, 703, 704 answer of corporation, 703, note 1 objection to answer without waived, when, 703, note 1 without oath, sufficient for appeal, 703, note 1 answer as evidence, 703-704 code provision that no answer shall be evidence, &c, 703, 209-210 this does not apply to motions to dissolve, 703 the old rule as to answers prevails, 703-704 answer under oath may be used as affidavit, 704 how motion may be heard, 704 formerly only on bill and answer, 704, and note 2 but now testimony may be taken, 704 hearing on bill and answer, 704-705 when answer denies equity of bill, 704-705 only direct and responsive denial available, 705 instance of express denial, 705, note 2 in cases to stay waste, 705, note 2 a rule of Chancellor Hanson, 705, note 2 insufficiency of answer, 705-706 if insufficient, injunction not dissolved, 705, and note 1 to sec. 600 if evasive or not full, or does not deny, 705-706 if any material allegation unanswered, 706 if defendant professes no personal knowledge, 706 if equity of bill admitted, or not denied, 706 exceptions to the answer, 706 'heard with motion to dissolve, 706 may be filed at the hearing, 706, and note 1 waiver of right to except, 706 exceptions after motion disposed of, 706, note 1 averments of the bill and answer, 707 allegations of the bill admitted or not denied, taken as true, 707 injunction continued, 7oy allegations of bill, denied, not considered, 707 answer, responsive averments of, taken as true, 707 hearsay in answer, 707 matter of avoidance has no weight, 707 facts only taken as established, 707, note 4 992 Index. [References are to the pages.] INJUNCTIONS— CONTINUED . hearing on bill, answer and proof, 708 the code provision, 708 if equity of bill not denied by answer under oath injunction continued, 708, and note 4 testimony alone not sufficient denial of equity of bill, 708 equity rule provision, 708, note 1 rule of Baltimore city courts, 708, note 1 answer, effect of, 708-709 old rule as to effect of answer prevails, 708 responsive averments of answer taken as true, &c, 708-709 code provision as to answer as evidence does not apply, 709 equity rule provision, 709 miscellaneous, 709-710 order of argument, 709 if plaintiff fails to appear, 709 reinstatement of dissolved injunction, 709, and note 1, 716, and note 3 injunction may be dissolved or continued, 709, and note 3 objection to the jurisdiction, 709-710 party, want of at motion to dissolve, 710 limitations, plea of not available, 710, and note 6 exhibits, want of, defect supplied before hearing, 710 bond, defect or deficiency in, 710, 695 hearing of motions in case to stay sale under power of sale, 709, note i Other proceedings. i when injunction not granted ex parte, 710-71 1 on court's refusal to grant, plaintiff may at once appeal, 710 or may proceed with suit, 710 if answer confesses merits, 710-71 1, 693 may take testimony, 711 refusal to grant, without prejudice to future application, 710, note 1 bill dismissed on affirmance of refusal to grant, 710, note 1 final hearing on bill and answer, 711 answer taken as true as to matters susceptible of proof, 711 material matter charged in bill, not admitted or denied, 711 if answer denies equity of bill, injunction dissolved, 711 final hearing on bill, answer and proofs, 711 effect of answer, code provision, 711 affidavit to answer, 711, and note 3 to sec. 608 staying operation of injunction by appeal, 711-712 the statutory provisions, 711-712, and notes 1, 2 the act of 1890, ch. 32, 712, and note 4 court may direct that appeal and bond shall not stay, 712 affirmance of order, effect of on property, 712-713, and note 5 Index. 993 [References are to the pages.] INJUNCTIONS— CONTINUED. general effect is to stay operation of injunction, 713 if injunction dissolved, effect is to keep it in force, 713 where impossible to enforce injunction after affirmance, 713, note s violation of injunction, 713-714 code provisions, 713, and note 1, 352 attachment for contempt, 713-714 petition, under oath, for attachment, 714 parties to the suit and third persons, 714 inquiry is, whether defendant has disobeyed order, 714 order must be obeyed, unless void on its face, 714 whether persons bound by knowledge of order or service, 714 binding upon knowledge under statute, 714, 684 sequestration against corporation, 713-714, note 2 proof upon question of violation, 714, note 3 miscellaneous matters, 714-716 abatement of suit, 714-715, and note 1 , notice to persons interested, 715 where defendant denies intention to do act enjoined, 715-716 reinstatement, motion for, 716, and note 3, 709, and note I dissolution of injunction, how effected, 716, and note 4, 715. note 1 bill by married woman, without next friend, 715, note 1 defect remediable by amendment, 715, note 1 several applications for injunction, 715, note 1 INSOLVENCY. trustee in, as representative party, 39-41, and notes of party renders suit defective, 251, note 5 permanent trustee in, right of to appeal, 432-433, and note 2 proof of, by general reputation, 454, note 1 INTEREST. not allowed on costs, 348 error in calculation of, not open for review without exceptions below, 409 on claims in creditors' suits, 471-472, and notes in suits for specific performance, 780, 804, and note 1 INTERLOCUTORY ORDERS, see "appeal" may be revoked at any time by petition, 307 INTERPLEADER. basis of the jurisdiction, 824-825 nature of the proceeding, 824-825, note 1 plaintiff to be in position of continuous impartiality, 825 plaintiff is stakeholder, without interest in the issue, 825 cases where interpleader not proper, 825, notes 2, 3 63 994 Index. [References are to the pages.] INTERPLEADER— continued. bill in nature of bill of interpleader, 825-826, note 4 character of the conflicting claims, 826 wrongful act of stakeholder, 826, note 1 where portion of fund not in dispute, 826, note I after verdict or judgment against plaintiff, 826, note 1 money must be paid into court by the plaintiff, 827 affidavit that there is no collusion, 827, and note 2 injunction, without bond, against claimants, 827-828, and note 5 publication against non-residents and unknown persons, 163- 164, notes 2-4, 827, and note 4 decree of interpleader is interlocutory, 827, and note 5, 381, 384, note 4 vacation without bill of review, 827 supplemental bill after decree, 249, note 2, 828, note 5 costs, security for, against non-residents, 828, note 5 summary of the practice, 828, note 5 counsel fees, 673, note 3 appearance fees, 674 INTERROGATORIES. formerly of importance in bills, 112 now rarely used in bills, 112 purpose of, in bills, 112, note 1 rules requiring answer to, 113 and note 7, 204 must be appended to, not incorporated in, bill, 113 equity rules respecting, 113 and note 7 see "answer" and pages 204-205 defendant declining to answer, 204 and note 3 deemed part of pleadings, 205 notice of, 205 answer to, compelled by attachment, 205 answer to as evidence, 210 INTERVENTION; see "parties." ISSUES FOR JURY TRIAL. , courts of equity have inherent power to award, 290 where matter in dispute small, 290, note 3 trial of issues of fact provided for in certain cases, 290, 293 chancellor taking opinion of common law judge, 290, note 4 issue not a matter of right independently of statute, 290,291 heir at law controverting validity of will, right of to, 291, note 5 object of directing, is to inform conscience of the court, 291 when testimony conflicting or credibility of witness doubtful, 291 not allowed as substitute for failure of proof or omitted evi- dence, 291 allowance of, in discretion of court, 291 Index. 995 [References are to the pages.] ISSUES FOR JURY TRIAL-continued. improper till court sees the evidence conflicting or doubtful 291 questions of fraud eminently suitable for, 291, note 8 verdict of jury on issue of fact not binding, 292 court may award new trial or disregard verdict altogether, 292 verdict of jury should be sustained unless against court's con- victions, 292 party against whom verdict is rendered, how may proceed, 292 when issues are a matter of right, 292 in proceedings to vacate contracts fraudulent against credi- tors, 292, 834 in proceedings by judgment creditors of corporations, 292-293 in attachments upon decrees, 293 in proceedings to obtain a declaratory decree, 293, 821, note I issues of devisavit vel non, where to be tried, 293 procedure upon, 293-294 court settles form of, 293-294 feigned issues, obsolete in Maryland, 293, note 1 forms of, 293, note 1 practice in Baltimore city as to empaneling jury, etc., 293, note 1 instances of, in Baltimore city, 294, note 1 trial of, how conducted, 294 exceptions to decisions of court trying, 294 bill of exceptions no provision for, 294, note 1 appeal lies on exceptions taken at trial, 294 removal of case in law court, 294, 297 motion to quash verdict addressed to equity court, 294 motion for new trial addressed to equity court, 294 JUDGES, AS CHANCELLORS. power of, similar to that of chancellors, 8 may pass orders and decrees at any place in their circuit, 8 must decide cases within two months, 8 opinions to be filed, except in Baltimore city, 8 JUDGMENT AT LAW. compared with decree, 337, note 2 JUDICIAL NOTICE. rules of lower court not matter of, in court of appeals, 11, and note 13 matters of which court takes, omitted from bill, 116, note 4 JURISDICTION. see "jurisdiction as to amount" see "jurisdiction over defendants" see "jurisdiction over land" 996 Index. [References are to the pages.] JURISDICTION— CONTINUED. as to jurisdiction in various proceedings, see the appropriate titles bill must state case within, 124-126 how objection to may be taken, 125 consent of parties cannot confer, 126, 334, note 7 demurrer for want of, 177 true test of, 178, note 2, 484 objection for want of may be raised at any time in lower court, 317 objection for want of, on appeal, 317, 334, note 7, 413-415 agreement of counsel cannot confer, 334, note 7 appeal in cases of special statutory, 434 and note 1 objection to, must be raised below, and when, 413-414 parties other than defendants, may raise objection to, on ap- peal, 414 and note 4 ''objection to," meaning of, 414 and note 5 objection must be specially taken by exception below, 414 record must show objections to, on appeal, 415 costs when bill dismissed for want of, 348, note 2 JURISDICTION AS TO AMOUNT, pecuniary limit of, 7 exception as to mechanics' lien claims, 7 and note 9 JURISDICTION OVER DEFENDANTS, see "publication, process by" residents of different counties, 7 in specific performance cases, 760, note 4 service of process on residents of different counties, 7, note 4 non-residents, where bill to be filed, 7, note 5 in divorce suits, 7 over marriage status, 30-31, note 2 JURISDICTION OVER LAND. lying in more than one county, 6 lying partly in city, partly in county, 6 in specific performance cases, 6, 760, note 4 in partition cases, 6, 513, note 1; 518, notes 2 and 2, to sec. 439 in foreclosure of mortgages, 6 in sales under mortgages, 6 and note 1 in enforcement of liens, 6 sale of lands of deceased debtor, 6, notes 1, 2 filing and recording of certain proceedings, 6 by publication, 30, note 2 JURY TRIAL, ISSUES FOR. see "issues for jury trial" Index. 997 [References are to the pages.] JUSTICE OF THE PEACE. taking of testimony before, 262, note 1 attendance and testimony of witnesses enforceable before, act- ing as commissioner, 265, note 1 exception to testimony before, 412 LAW. conclusions of, statement of, in pleadings, 227, 191 conclusions of, in bill not admitted by demurrer, 172 questions of, may be ordered to be tried before evidence taken, 311 retaining bill till questions of, determined, 322 LEADING QUESTIONS. when objection to should be made, 273, 404 LEASE. proceedings to renew, publication as to non-residents, 133, note 2 of infant's property, see "sale of infant's property" of lunatic's property, see "sale of lunatic's property" see also " sale to bind persons not in being" LEGATEES. represented by executor, 39 when parties in proceedings to revive, 258 LIEN. on land, where to institute suit to enforce, 6 intervention to enforce specific, 102 of creditor upon real estate of deceased debtor, 456, note 1 LIMITATIONS, STATUTE OF defense of, must be specially made, 122, 316 as a ground of demurrer, 179 plea of, 192 decree barred by, revived by subpoena scire facias, 257, note 4 may be pleaded when claim discovered if bill discloses no claim, 316 enures to benefit alone of those pleading it, 340, note 8 in creditor's suits, creditors may plead limitations against each other, 468, note 5 after death of decedent, operation of, suspended for eighteen months, 469 bar of, not removed by judgment against executor of debtor, 470 who may plead to claims filed, 645 how and when pleaded to claims, 645-646 various matters in respect to, 646-648 on motion to dissolve injunction, 710 on appointment of receivers, 756, note 3 998 Index. [References are to the pages.] LOST PAPERS. supplying, 312, note 5 in chain of title, as objection to ratification of sale, 599-600, 605, note 2 LUNATICS. see "next friend" see "guardian ad litem" see "sale of lunatic's property" suits for, in own name by committee or next friend, Vj and note 1 may sue by guardian, 17 and note 2 answer by committee as of course, 21 guardian ad litem appointed when committee interested, 21 committee, if within jurisdiction of court, required to answer or if none, court may appoint guardian ad litem, 21 solicitor may be appointed for, 21, note 2 liability of, to suit at law, 21, note 1 service of process on, 147 process served on committee of, 147, note 3 common form of answer of, by committee, 200, note 7 answer by committee or guardian ad litem, 214 confirmation of contract for sale of land of, 480-481, note 1 LUNATIC'S PROPERTY AND PERSON. see "sale of lunatic's property" MARRIAGE SETTLEMENT. husband formal party in suit by wife to enforce, 33-34 see "specific performance" MARRIED WOMEN. suits by, 12-13 joinder of husband, 16 and note 1 exceptions to general rule, 16 by next friend, in absence of trustee, 16 and note 3, jointly with husband, 16 and note 4 in own name does not render decree void, 16, note 3 by State for the use of, next friend not necessary, 16, note 1 should not sue in their own name, 16-17 defect of suing in own name, amendment, 17, note 5; 715, note 1 injunction suit by, in own name, 715, note 1 as to their earnings, in their own name, 17 husband formal party in suit as to separate estate, 34 suits against, 20 joinder of husband necessary, with a few exceptions, 20, 211 in suit by husband, she answers separately, 20, 212, note 4 separate answers of, 212 suits against when traders, 20, note 3 Index. 999 [References are to the pages.] MARRIED WOMEN— continued. suits upon covenants in their leases, 20, note 3 order of publication against, 157, note 6 exceptions to answer of, made jointly with husband, 202 answering as feme sole, 212 and note 4 MASTER, see "auditor and master." MECHANIC'S LIEN. in enforcing, no pecuniary limit in amount of claim, 7 and note 9 parties to bill to enforce, 82 MISJOINDER OF PARTIES, see "parties." MISJOINDER OF SUBJECT-MATTER; see "Bill— multifar- iousness." MISNOMER. of corporation, 21 and note 3, 22 MONEY INTO COURT, see "payment of money into court." MISTAKE. vacation of enrolment in case of, 359, 361 time of taking appeal in case of, 442-443 and note 2 allegation of, on oath sufficient to extend time for taking ap- peal, 443 must not be mere laches to extend time of taking appeal, 443, note 2 in specific performance cases, 775-776 MORTGAGEES. see "foreclosure of mortgages in general" see "foreclosure of mortgages under power of sale," see "foreclosure of mortgages under assent to decree" prior, when not proper or necessary parties, 59-61 and notes prior, when should be made parties, 61-62 and notes junior, proper parties in foreclosure of elder mortgage, 64 and note 1 represented by trustee under railway mortgage, 45 holding security and filing creditor's bill, 68 .parties in creditors' suits, 69 as plaintiff in bill to foreclose, 75 MORTGAGE, FORECLOSURE OF,see "foreclosure of mort- gages" (3 TITLES.) MORTGAGOR. as a party, see "parties' 7 MOTIONS. definition of, 305 not in writing seem to be defective in form, 305, note 2 used where circumstances are few and simple, 305 party in contempt cannot make, 305 person not a party cannot make, except to be made party, 305, g6, note 1 1000 Index. [References are to the pages.] MOTIONS— CONTINUED. when of course, 305 to what applications the term "motion" is chiefly applied, 305 to dismiss appeal fails in case of divided court, 440 to dissolve injunction, see "injunctions" to discharge receiver, see "receivers" MULTIFARIOUSNESS, see "bill." NE EXEAT. office of writ, 300 nature and substance of writ, 300 constitutional provision as to imprisonment for debt, 300-301 may be used in District of Columbia, 300, note 3 prior and subsequent to constitution of 185 1, 300-301 see rules of several county courts in appendix NE RECIPIATUR. see "files — striking or withdrawing papers from" where bill not formally drawn, 116, note 3, and 179, note 3 NEWSPAPERS. publishing order of publication in, 167 and note 2, 466 Daily Record, is a newspaper, 584 NEW TRIAL. motion for on verdict of jury upon issues directed, 292 proceedings for rehearing compared with, at law, 356 NEXT FRIEND. see "infants," "lunatics,'' "married women" may prosecute for infant without an order, 14 is responsible for propriety and conduct of suit, 14 and 15 and notes is an officer of court, 14 may prosecute for infant though he have a guardian, 14-15 court may remove at any time and appoint another, 15 if he dies, court appoints another, 15 liable for costs of suit, 15 employment of counsel, his duty, 15 has entire control of suit, 15 and note 7 admission and agreement by, 15, note 7 may receive money recovered by infant in the suit, 15 not technically a party to the suit, 15 may make affidavit for removal of suit, 16 may appeal on behalf of infant, 16 NEXT OF KIN. represented by executor in bill for account, 39 NISI ORDER. on report of sales, see "sales under decrees" on auditor's accounts, see 'auditor's accounts' - in other cases, see the various titles power of clerk to pass. 9. and note 8 Index. 1001 (References are to the pages.] NON COMPOS MENTIS, see "lunatics." NON-JOINDER OF PARTIES, see "parties." NON-RESIDENTS. see "publication, process by," where to file bill in case of non-resident defendants, 7, note 5 personal service on in lieu of publication, 158 may appear and answer before final decree, 166 may file bill of review after decree in certain cases, 166 amendment of bill incorrectly describing party as, 235 plaintiff no absolute right to commission to take testimony, 280 decree pro confesso against, appearing but not answering, 341-342 NOTICE. by subpoena, 145 of amended bill, 147, note 6; 204, note 7, 233 by publication, 151, 153 of setting demurrer for argument, 177 exceptions for scandal, 230 of cross-bills, 242 of application for supplemental bill, 247-248 to legal representative of deceased to appear and defend, 253 of bill of revivor, 254, note 2 of taking testimony before examiner, 264 one day's, of taking testimony in Baltimore city, 264, note 5 of execution of foreign commission to take testimony, 279, note 1, to sec. 222 of orders affecting substantial rights, 309 of orders passed in ordinary course, 309, note 4 of what proceedings against party's interest required, 309, note 4 service of, of special order, how made, 309, note 4 of execution of commission to take testimony in decrees pro confesso, 343 to creditors to file vouchers, 466 and note 1 NUNC PRO TUNC. filing replication, 223, note 2 decrees entered, when defendant dies before decree, 334 order, when judge inadvertently omitted to sign order, 334 order, should be granted as justice requires, 334 OATH, see "affidavit." OBJECTIONS, see "exceptions. " OFFICERS. of court of chancery, 2, note 6 of corporation, joined for purpose of discovery, 29-30 payment of fees of, how enforced, 353 1002 Index. [References are to the pages.] OPINION. of court to be filed upon passing decree, 8 of court, distinguished from decree, 325 constitutes no part of decree, 325 not subject of appeal, may be changed, 325, 326, note 5 distinguished from judicial opinion, 325, note 5 may be considered in construing ambiguous decree, 327 gives way when conflicts with decree, 327 not a final order, 380 not filed in case of divided court on appeal, 440 filed in writing by the court of appeals, 440 expression of, by court though appeal dismissed. 440 ORDERS. interlocutory order revoked by petition, 307 kinds of, 309 definition of, and of decretal orders, 309 and note 1 interlocutory orders, 309 not granted without notice when substantial rights af- fected, 309 formal orders, 309, note 3 orders nisi, what are, 309 special orders preceded by order nisi, 309, note 4 proceedings on objection to passing of order, 310. note 4 "showing cause" against granting of, 309-310, and note 5 answer showing cause to be under oath, 310 ex parte affidavits, use of in objecting to passing of orders, 310 how enforced, 310 on admissions without waiting for determination of any other question, 312 in nature of final decree, definition of, 377-379 ORDER NISI ON RATIFICATION OF SALE. power of clerk to pass, 9 and note 8 see "sales under decrees" ORDER NISI ON AUDITOR'S ACCOUNT. power of clerk to pass, 9 see "auditors and their accounts" ORPHANS COURT. answer as evidence in plenary proceedings in, 209 demurrer technically considered no place in, 170, note,! what admitted when case heard on bill and answer, 318, note I order by, directing distribution in certain way, final, 379 counsel fees in, 671 PAPERS. right to examine, in hands of clerk, 9, note 6 see "production of documents" PAROL DEMURRER, see "demurrer of parol." Index. 1003 [References are to the pages.] PARTIES. see "appeal," "plaintiffs," "defendants," "abatement" see the various titles of particular proceedings in partition cases, 510 and note 1 partition, wife of cotenant — prior incumbrancer, 510, note I in sales under power of sale in mortgages, 543 in sales under assent to a decree, 556 sale, decree for, does not affect persons not, 602, note 4, 588-589, note 2 incumbrancers, not parties, not bound by decree for sale, 612 conflicting decisions as to who should be, 24 and notes 2, 3 impossible to state rule applicable to all cases, 24, 28 confusion due to loose use of technical terms, 24, 32-33 who included under term, 24, note 1 basis of the rule, 25 courts guided by two principles, 25 natural justice, notice and opportunity to be heard, 25 and note 2 interested persons with knowledge of suit, not appearing, 25, note 2 decree affecting rights of persons not made, void and frau- dulent as to them, 25, note 2 decree in rem binds all persons as to point decided, 25, note 2 principle based on expediency, 25 and note 3 the rule stated, 26-28 the general rule, 26-27 reasons for and object of, rule, 26, notes, 1, 2; 27, note 3 another statement of rule, 27, note 3 rule may yield since based on convenience, 27, 28, and note 4 rule of little value in any particular case, 28 who should not be parties, 28-30 rule negatively stated, 28 rule does not extend to persons consequentially interested, 28, and note 1 persons not in privity with plaintiff, not properly, 28, and note 2 person against whom plaintiff waives his claim should not be, 28-29 sheriff should not be, nor mere witness or agent or attorney, person disclaiming interest, against whom no relief is sought, unnecessary, note 3, 29 State as, 29, note 2 not necessary to make officers of corporations, for discovery, 29-30 practice of joining defendants for discovery limited to fraud and agents, 30, note 9 1004 Index. [References are to the pages.] PARTIES— CONTINUED. in patent cases, chief executive officer of corporation joined as defendant, 30, note 9 rule summarized, 30 classification, 30-31 real and quasi, 30 actual, who are, 30 constructive, who are, 30 publication, two classes of cases embraced under, 30, note 2 quasi, who are, 30-31 difficulty in application of rule, 31, note 4 importance of correct application of rule to subsequent pur- chasers and incumbrancers, 31, note 4 necessary and proper parties, 31-33 necessary, who are, 32, and note 2 proper, who are, 32 illustration of distinction between necessary and proper, 32, note 2 necessary and proper, distinguished, 32, note 3 indispensable, meaning of, 33, note 5 formal parties, 33-34 who are, 33, and note 1 instances of formal, 33-34, and note 5 joinder of mere nominal, often dispensed with, 34 optional with plaintiff as to joinder of nominal, 34 joinder of nominal, does not oust jurisdiction of federal courts, 34 exceptions to the general rule, 34-37 reason of exceptions, 34-35, and note 1 persons beyond the jurisdiction, 35-36 former English practice and present, 35, note 1 to sec. 27 absent persons interests must not be prejudiced, 35-36 objection that absent party's interest prejudiced sometimes fatal, 36 persons unknown to plaintiff, an exception to rule as to, 36 numerous persons interested, an exception to rule as to, 36-37 when absent person's interest very small, 36, note 1 fraudulent division of an interest among number of persons, 36, note 2 Representation. the doctrine stated, 37 a limitation on general rule as to parties, 37, and note 1 rule as to, and exceptions consolidated, 37, note 2 doctrine stated, 37 doctrine, basis of, 37, and note 4 cases in which doctrine is applied classified, 38, note 4 Index. 1005 [References are to the pages.] PARTIES— CONTINUED. executors and administrators, 38-39 executors represent creditors, legatees, distributees, 38, and notes i, 2 executors sometimes represent persons not in esse, 39 trustee in insolvency, 39-40 what creditors are represented by trustee in insolvency, 39-40, and note 2 in proceedings to set aside fraudulent deed by creditors, 40, and note 4 trustee dying, new one to be appointed, 40, and note 4 trustee, in theory, mutual representative of both creditors and debtor, 40 in proceedings by creditors affecting rights of debtor, trustee must be, 40, and note 4 in proceedings by creditors, trustee not necessarily to appear as plaintiff, 40, note 4 partition, 41 remaindermen, by life tenants in partition by division of land itself, 41, note 2 in strict partition, sufficient to make present owner, and in some cases tenant for life, 41, note 2 in case of sale, 41-44 life tenants do not represent remaindermen, 41, 42, note 1 remaindermen not in esse, 42, and note 2 remaindermen in creditors' bills, 43-44 Maryland decisions as to unborn remaindermen, 44, note 2 legislation, 44 sale and lease of property limited over to unborn remainder- men, 44, note 2 trustees, rules respecting, 44-47 represent beneficiaries in certain cases, 44-45 how question as to representation determined, 45 railway mortgage trustees, 45-46 represent bondholders, 45-46 trustee for benefit of creditors, 46 instance where represents creditors, 46 trustees, equity rule as to, 46-47 the English chancery order, 46 as to personal estate, 46 the Maryland equity rule, 46-47 corporations, 47-48 represent stockholders, 47-48 stockholders do not represent corporation, 47 suit between stockholders as to corporate powers, 48, and note 4 1006 Index. [References are to the pages.] PARTIES— CONTINUED. class of persons representing others of class, 48-50 representation of others similarly situated, 48, and note 1 allegations of bill, 49, note 1 to sec. 40 creditors' bills, 49 unincorporated association, 49, and note 4 shareholders of corporation, 49 taxpayer on behalf of other taxpayers, 49 numerous plaintiffs, 49-50, and note 3 United States equity rule as to numerous parties, 49, note 6 numerous defendants, 49-50 rights of persons not parties, 50 In various cases. executors and administrators, 50-51 when personal assets of decedent affected by decree, 50-51 trusts under a will, 51 construction of will, 51 setting aside a will, 51 various instances, 50-52, notes 1, 2, 3 revivor, 258 trust estates, rule as to, 52-53 beneficiaries and trustees necessary in suits against, 52, and notes 1, 2 exceptions in suits against trustees, 52 in suits against beneficiaries, trustee necessary, 52, and note 2 on death of trustee, who to be made, 52, note 3 suits between trustee and beneficiaries, 53 who should be parties, 53 will, bill for construction of, who to be, 51, 53 account, in suit for, of estate, 53, and note 3 trustee, appointment of new, 53, note 2 new trustee, proceedings for appointment of, 53 see "beneficiaries" suit, between trustee and stranger, 54 in suit for recovery of trust property, beneficiaries unneces- sary, 54 in suit to recover purchase money for property beneficiaries, unnecessary, 54 assignor and assignee, 55-57 when assignment absolute not a necessary, 55 assignor, when assignment not absolute, 55 assignment of entire equitable interest, 55 assignee, when necessary, 56 instances, 56, note I assignee pendente lite, not a necessary party, 56 proper party, 56, and note 1 to sec. 47 Index. 1007 [References are to the pages.] PARTIES— CONTINUED. no right to be made a party, 56-57, and note 2 involuntary alienation, 57 incumbrancers, senior, 59-62 the general rule, 59-60 not necessary, in proceedings for sale, 59, and note 1 instances, 59-60, and notes 1, 2, 3 in creditors' bills, 69, note 1 when debt is not due, 60-61 senior incumbrancer, not to be made parties, 60, and note 1 instances, 60-61, and notes I, 2 when debt is due or uncertain, 61-62 to make a final settlement of case, 61, and note 1 justice may require senior incumbrancers, to be made, 61 instances, 62, and notes 3, 4 incumbrancers, junior, 63-64 the general rule, 63 not necessary, but generally proper, 63, and note I purpose of making, 63 not bound by decree if not parties, 63, and notes 3, 4 not necessary parties, 64 foreclosure of mortgage, 64, and note 1 sale under assent to decree in Baltimore city, 64 sale under power of sale, 64 are proper parties, 64 in mortgage foreclosures, 64 recognized practice to make, 64, and note 1 vacating deed or decree, 65-67 deed in fraud of creditors, 65 bankruptcy of debtor after making deed, 65 mere agent of fraudulent grantor and grantee, 65-66 all parties to the decree to be parties, 66-67, and note 1 to restrain execution of fraudulent judgment, 67 creditors 1 bills, 67-71 who may be plaintiffs, 67 the general rules as to parties in, 67, note 3 plaintiff represents other creditors, 67, and note 3, 68 executor overpaying the estate, 67, note 2 vendor with mere equitable lien, 68 mortgagee, retaining security, 68 creditor having lien and claim beyond lien, 68 defendants, who may be, 69 deceased debtor, member of partnership, 69 heir, in bill to charge land devised, 69, note 1 lien creditor, 69, note 1 dower claimant, 69, note 1 mortgagee, at suit of general creditor, 69-70 1008 Index. [References are to the pages.] PARTIES— CONTINUED. personal representative must be, 70, and note 6 if no personal estate; if no letters taken out, 70, and note 7 if executor dead or insolvent, 70, 71, note 11 when creditors' suit grafted on another suit, 70-71 executor of deceased executor, 71, and note 10 collusion between third party and personal representatives, 71 joint obligations; suretyship, 71-74 the general rule, 71, and note 1 where obligor dead, 71-72 surety, bill for relief against, 72 sureties, general rule as to, 72-73, and note 3 insolvency, exception in case of, 73-74 insolvent principal or trustee, 73 fact of insolvency must be alleged and proved, 73, notes 1, 2 making of insolvent principal or trustee, a nugatory act, 74 equity rule as to joint and several demands, 74 the rule stated, 74 bill to foreclose, 75-77 plaintiffs, who should be, 75 all persons affected by decree to be made, 75 death of mortgagee, personal representatives, 75, and note 3 joint mortgagees, 75, note 3 in Baltimore city under assent to decree, 75 under power of sale in mortgage, 75 defendants, who shall be, 75-77 all persons interested in equity of redemption, 75-77, and notes assignee of mortgagor's entire interest, 76, 77, note 9 if mortgagor not legally divested of entire estate, 77 State, property belonging to cannot be foreclosed, 76, note 4 trust estate subject to mortgages, 76, note 4 claimants adverse to mortgagor and mortgagee, 76, note 4 personal representatives of deceased mortgagor, 76, note 4 wife, necessary, in bill to foreclose mortgage of husband and wife, 77 specific performance, 78 parties to contract, usually only necessary, 78, and note 3 assignee of purchaser may sue vendor, and assignor is proper, 78-79 purchaser with notice is necessary defendant, 79 agent contracting in his own name a necessary, 79 receiver of corporation in suit to enforce contract of corpora- tion, 79 death of purchaser, when personal representatives to be, 79-80 heirs and devisees of deceased purchaser, when necessary, 79-80 heirs and devisees of deceased vendor should be, 80 Index. 1009 [References are to the pages.] PARTIES— CONTINUED . partners, 80 all must be joined in suit by or against, 80 one partner resident of foreign country, decree as to rest, 35, note 1, to sec. 27 personal representatives of deceased partner unnecessary, in suit against survivor, 80 tenants and lessees, 81 lessees in bill for sale of ground rent, 81 occupying tenants and lessees claiming title, 81 sub-lessees, 81, and note 4 miscellaneous, 82 in sales of real estate, 82 in partition suits, 82, and note 3 in vendors' lien cases, heirs and devisees necessary, 82 in proceedings to vacate sale of land, purchaser a necessary, 82 in bill to enforce mechanics' lien against houses sold to third parties, 82 In the federal courts. j limitations upon jurisdiction, 83-84 constitutional provisions, 83 process by publication, 83 , modification of general rule, 83-84, and note 4 classification of the subject, 84 formal parties, 84 definition of, 84, and notes 1, 2 may be made parties or not, 84 necessary parties, 85-86 definition of, 85, and note 1, and 84-85, notes 1, 2, 86, note 3 must be made if practicable, 85-86, and notes 2, 3 indispensable parties, 87 definition of, 87, and note 1, 84-85, notes 1, 2, 86, note 3 person without whom final decree cannot be made, 87 effect of legislation, 89-90, and note 6 legislation and equity rule, 88-90 persons beyond jurisdiction, 88-89 statutory provision, 89, and note 3 equity rule, 89, and note 5 effect of legislation, 89-90, and note 6 Miscellaneous. non-joinder, 90-94 if apparent on face of bill, how objection raised, 90, and note 1 if not apparent, how objection raised, 91 court may sua sponte raise objection, 90, note 1, and 91 when objection made by answer, equity rule, 91, and note 1 objection made at hearing, 91-92, and note 2, 317 , 64 1010 Index. [References are to the pages.] PARTIES— CONTINUED. equity rule, 92, note 5 court will suspend proceedings till person made, 92 necessary, may be brought before court at any time before final decree, 92 amendment of bill for, 233-234 dismissal of bill for want of necessary, 93, note 8 dismissal without prejudice, 93, note 8 making objection on appeal, 93-94 remand to bring in additional, 93-94, and notes 2, 3, 424, and note 3 misjoinder, 94-96 objection taken by demurrer or answer, 94-95 objection cannot be raised at the hearing, 95, 317 objection cannot be raised for first time on appeal, 95, 317 bill may be dismissed as to one, and proceed as to the others, 95 objection can only be raised by party improperly joined, 95 objection sustained, what settled thereby, 95 amendment of bill, 95 dismissal for failure to amend bill, 95-96 equity rule; dismissal of bill in part, 96 intervention, 96-102 process by which strangers may interpose, 96, and note 1 position on record of intervenor, 96 intervenor must have interest in suit, 96-97 in suit in rem, 97, and note 6 in suit in personam, 97, and note 7 in trust cases, 98 beneficiaries frequently allowed to intervene, 98 instances, 98 equity rule, 98 stockholders, 98 the general rule stated, 98 instances, 98-99, note 1 creditors, 99-100 j wihere fund in court for distribution, 99, and note 1 claimant's right to intervene, 99-100, and note 2 certain other instances, 101, and notes 3, 4 right of appeal by intervenor, 101 method of intervening, 101-102 in creditors' suits and other suits, 102 * making new parties, 103 before and after decree, 103, 230, note 1 to sec. 181, and see "abatement," "cross bills" and "supplemental bills" equity rule, 103, note 1 statutory provision, act of 1892, ch. 654, 103 retaining bill to make, 323 Index. ion [References are to the pages.] PARTIES— CONTINUED . in case of marriage, 260 remand of cause for, 424, and note 3 ■who is a party, 104 party defendant; prayer for process, 104, and note 1, 114, and note 2 must be summoned, 104 where capacities are different, 104, and note 5, 105, and note 4 character in which sued, 104, 128 position on record. 104-105 persons having same interest, 104 refusal to appear as plaintiff, 104 plaintiff may be made defendant, 105 where corporation refuses to sue, 105 no person, both plaintiff and defendant, although capacities are different, 105, and note 4 PARTITION. see "sale for the purpose of partition'' of lands lying in more than one county, 6-7 life tenants represent remaindermen, 41, and note 2 parties, who to be made, 33, note 3, 41, note 2, 60, and note 3, 82 bill for sale may be amended into bill for, 234, note 4 creditors may come in on bill for, 458-459 the several jurisdictions, 508 common law partition, 508, note 1, and 510, note 4 inherent equity jurisdiction, 509, and note 1 implied warranty of title in partition cases, 509, note 1 partition of personal property, 509, and note 1 statutory equity jurisdiction, 509 history of the statutes, 510, note 4 object of partition — division of property, 510 no partial partition nor of an undivided interest in land, 510 parties in partition cases, 510, and note 1 bill not designed to settle adverse rights, 510-511, 516 right to, undeniable if feasible, 511, and note 1 sale if no partition without loss or injury, 511 certain objections to right to partition, 511, note 3 allotment of parcels— advantageously to parties, 511-512 when improvements have been made, 512 improvements as affecting value of land, 512 redivision among co-owners, 512, note 2 assessment and compelling payment thereof by sale, 512, note 2 proceeding by bill — procedure, 512, and note 1 to sec. 430 form and allegations of bill, 512-513, note 1 interlocutory decree for — account, 512-513 where proceedings should be instituted, 6, 513, note 1 commissioners, how named, 513. note 1 1012 Index. [References are to the pages.] PARTITION— CONTINUED. commissioners — oath — testimony of witnesses, 513 form of commission — no valuation by commissioners, 513, and note 4 exceptions to commissioners' report and award, 513-514 commissioners exceeding their authority, 514 examination, valuation and allotment, 514 advantages and disadvantages to be considered, 514 confidence placed in commissioners' acts, 514 allotment by discretion or by drawing lots, 514 final decree confirming commissioners' report, 377, 514-515, and note 2 operates as conveyance, 514, and note 2 no priority of title between parties, 514-515, and note 3 owelty of partition, 515 when legal title of property is in dispute, no partition, 515-516 PARTITION UNDER ACT TO DIRECT DESCENTS, history of act to direct descents, 516 jurisdiction under the act, 516 necessity of proceeding under the act, 516-517, and note 4 intent and object of the act, 516, note 2 act relates only to persons claiming by descent, 516, note 2 proceedings at law — procedure — judgment, 517, and note 3 where do not exclude equity jurisdiction, 517 proceedings in equity — procedure, 517 must conform to act — strict compliance, 517-518, and notes 2, 3 where land lies in one or more counties, 518, notes 2 and 2 to sec. 439 statutory provisions, 518-519, and note 5 allegations of the bill — prayer — jurisdiction, 519 amendment, 519, note 7 power to divide when parties cannot agree upon division, 518, and note 1 commission — recitals — certain errors, 518-519, note 3 plaintiff to nominate commissioners, 519, note 4 commissioners' proceedings, 520-521, and notes 1-4 division of property without loss or injury — advantages and disadvantages, 520, and note 1 valuation of estate, 520, and note 3 division into certain parts, 520 election of the parts, 520 commissioners to be authorized to take evidence, 520, note 3 return of commissioners — ratification, 520-521 certain objections to, 520-521, note 4 confidence in the judgment of commissioners, 521 valuation, though not conclusive, entitled to great respect, 521 Index. 1013 [References are to the pages.] PARTITION UNDER ACT TO DIRECT DESCENTS-cont'd. proceedings by commissioners not to be set aside for matter of form, 52 1 dower to be laid off, and return thereof, 521, and note 1 sale clear of, if widow consents, 521-522, and note 2 tenants by curtesy, life-tenants, remaindermen, 522 the right of election — statutory provisions and construction, 522-523, and notes 4, 6, 523-524, and note 10, 525, and note 6 entirely statutory — under code, 523 right of may be cut off by proceeding under other statute, 517 right valuable, 523 no decree until right extended to heirs, 523, note 5 may be passed to grantee, 523, and note 7 where right does not exist, 523, and note 8 partition if land divisible equally among heirs, 523, note 9 acquisition of title by election, 524 heir of elector may complete election, 524, and note 1 payment of sum due other heirs, 524, and notes 1 and 2 bonds given by purchaser, 524, and notes 1 and 2 elector takes title as purchaser, 524 election by husband in right of his wife, 524, note I sale by commissioners — when and in what cases, 524-525, and note 1 sale on credit, bonds taken, lien, 525, and notes 3 and 4 on appeal from decree for sale, order ratifying return open for review, 525 summary of proceedings where land not divisible without loss or injury, 525, and note 6 PARTNERS. as parties, 80 parties, when some non-resident, 35, note 1 as parties in creditors' suits, 69 answers of, may be read against each other, 217, note 7 PAUPERIS, SUITS IN FORMA. in respect to, 13, note 3 PAYMENT OF MONEY INTO COURT, object of, 287 interest of the applicant in the money, 287 facts forming basis of, must be admitted or established, 288, and note 2 final ratification of audit, sufficient basis, 652, note 1 not necessary that fund be shown to be in danger, 288, note 1 admission of plaintiff's interest, 288, note 1 party allowed to bring money into court, 289 in application for decree of specific performance, 289. note 5 rule of Baltimore city courts as to deposits, 289, note 5 order directing usually conditional at first, 289 1014 Index. [References are to ihe pages.] PAYMENT OF MONEY INTO COURT— continued. enforcement of order directing, by attachment, 289 fieri facias does not lie to enforce order of, 289, and note 3 final order without notice, when answer filed, 289-290 order directing, not in general final, 290, 379, and note 3, 384 rights of parties to fund not determined, 384 instances wherein directed, 384, and note 4 nature of decree on order for, 384 trustees under decrees, proceeds of sale, 289, note 5, 609, and note 3, 61 1, note 3 in interpleader cases, 827 PEACE, BILL OF; see "bill quia timet." PENALTY. questions subjecting defendant to, need not be answered, 199, note 8 PERPETUATING TESTIMONY; see "Bill to perpetuate tes- timony." PETITIONS. to appoint guardian ad litem, 19, and note 6 for amendment of bill, 232 • for leave to take testimony, and form of, 263, note 3 definition, 306 when to be used rather than motions, 306, 305, note 3 persons not parties may file, 306 new matter in, to be sustained by affidavit, &c> 306 when sworn to in Baltimore city, 306, note 5 term "bill," as used in equity rules, includes, 306 form of and proceedings on similar to those on bill, 306 denied under oath, or taken pru cpnfesso, 306 • hearing upon petition, answer and proofs, 306 hearing upon petition and answer, 306 what admitted in hearing on petition and answer, 318-319 to correct decree before enrolment, 355, 356 to revise or annul decree after enrolment, 357, 359, and note I to file bill of review for newly discovered evidence, 366 order retaining subject-matter of petition refused but' not dis- missed, not final, 381 creditors' suit, coming in by, when, 467, and note 2 in pending cause, for discovery, 841, and note 3 whether bill or petition should be used, to revoke interlocutory order, 307 to assert claim to fund in court, 307-308, and note 3 to enforce payment under ratified auditor's report, 308 to charge fund in hands of trustee under decree of court, 308 for re-sale when purchaser at trustee's sale in default, 308 " when may not be used instead of bill; instances, 308 Index. 1015 [References are to the pages.] PETITIONS— CONTINUED. to suspend sale under assent to decree, 559, 563, notes 2 and 3 by purchaser to set aside sale for deficiency of land, 599 to vacate deed prematurely executed by trustee, 606, note 5 by creditor when fund in court, petition, 636-637 to enforce payment of amount allowed by audit, 652-653 to obtain injunction in a pending cause, 686-687 PLAINTIFF. see "bill," and 126-128 is in court, 109, note 3 use of term, instead of "complainant," 107, note 3 no one to appear on record as both defendant and, 105, and note 4 PLAINTIFFS— WHO MAY BE. general rule, 13 disabilities upon right to sue, 13, and note 2 alien enemy, 13 foreign executors and administrators, 13, note 2 foreign receivers, 13, note 2, 728 foreign corporations, 13, note 2 slaves, 13, note 2 suits in forma pauperis, 13, note 3 in specific performance cases, 781-782, 791, note 2 next friend, see "next friend" married women, see "married women" infants, see "infants'" lunatics, see "lunatics" PLEADINGS. see "impertinence" see "scandal" see "amendment" technicality as to matters of form not observed, 224, 225 substance looked to, rather than form, 224 all formal papers must be signed by solicitor, 224, note 1 though informal, must be substantially sufficient,- 225 character of proceedings determined by the allegations, not by title, 225 established rules must be adhered to, 226 should consist of allegations of facts, 226 test of what are properly averments of fact in, 226, note I to sec. 177 facts may be indirectly or impliedly alleged, 226-227 opinions of law of case need not be set out in, 227 legal conclusions need not be set out, 227 should be brief and concise, without recitals of documents, 229 unnecessary portions struck out at costs of party introducing, 1 229 1016 Index. [References are to the pages.] PLEADINGS— continued. amendment of, may be allowed at any time before final decree, 230-231, and notes appeal does not lie from action as to amendment, 232 method of making amendments, 240 amendment of, to introduce new parties after marriage, 260 PLEAS. definition and nature of, 181-182, and note 5 infrequent and difficult mode of defence, 181, note 2 set up new matter in bar, 181-182 pure pleas, 182, note 3 anomalous pleas, 182, note 3 anomalous pleas supported by answer, pure pleas not, 182, note 3 office of, 182, and note 5, 183 several may be filed at once, 183, note 6 duplicity not allowed in any one, 183, note 6 when to be used instead of answer, 183, note 6 admissions by, 183, and note 3 may plead to whole or part of bill, 184 demurrer and answer accompanying, 184 in certain cases answer must accompany, 184, and note 1 procedure when filed, 184 may be withdrawn in some cases, 185 setting down for argument, 184-185, and note 2 if defective in form or substance, set down for argument, 185 demurrer to, not used for defects of form or substance, 185, and note 3 what admitted by setting down for argument, 185 benefit of, saved for hearing, 186, and note 8 standing for answer, 186, and note 9 allowance of, 186 bill may be amended on allowance of, 186-187, and note 2 amendment discretionary with court, 187, note 1 overruling of, 187 mere question of pleading settled by overruling of, 187 order overruling, not final, 380, and note 12 defendant must answer, on overruling of, 188 ten dollars to be paid to plaintiff on overruling of, 188, note 4, 190, 175, note 4 replication to, raises issue on question of facts, 186 what waived by filing replication to, 188, 221, note 4 burden of proof on hearing, 188-189 effect of determination, in favor of defendant, 189, and note 6 overruling demurrer, 173, note 1 overruled by answer, 173, note 1, 190 allegations in, must be positive, 190 Index. 1017 [References are to the pages.] PLEAS — CONTINUED. facts must be fully set forth, 190-191 conclusion of law, 191 affidavit to, 191, and note 1 failure to make affidavit to fatal, 191. 310, note 1 amendment of, 191, note 5, 231-232 certain pleas in most frequent use, 192 to amended bill, proceedings on, 233 right to, after and before bill taken pro confesso, 344 upon motion to dissolve injunction, 700, note 3 POSSESSION, DELIVERY OF. see "sales under decree— enforcing delivery of possession" PRAYERS FOR RELIEF; see "bill." PRIMOGENITURE. existed in early history of Maryland, 516 PRIVILEGED COMMUNICATIONS; see "answer." PROCESS; see "subpoena" and "publication, process by." service of, when defendants resident of different counties, 7, note 4 when returnable, 147-148, and note 8 cannot be served beyond State, 154, note costs of, unnecessarily or vexatiously issued, 352 PRO CONFESSO, TAKING BILL. for want of answer after demurrer overruled, 174 as to defendant failing to answer after demurrer or plea over- ruled, 342 when plea or demurrer vexatious or taken for delay, 174 for want of answer after plea overruled, 188 for failure to bring in more perfect answer, 202 for default of answer, 217 object of statutes in providing for decrees pro confesso, 338-339 historical account of, 339, note 2 equity rules as to, 339-341 as to infant and insane defendants, 339, note 4 order taking bill, when procured, 339-340 and note 7 notice of order not given in practice, 340, note 7 where several defendants, 340, note 8 effect of dismissal on merits where several defendants, 340, note 8 procedure after order, passed, 340-341 in Baltimore city testimony is generally taken, 341, note 10 form of order to take testimony on decree, 341, note 10 as to matter within private knowledge of defendant, 341, 838 as to defendant leaving State before answer, 341 as to non-resident appearing but not answering, 341-342 !018 Index. t [References are to the pages.] PRO CONFESSO, TAKING BILL— continued. as to party failing to produce books, 286, and note 2, 342 strict compliance with statute necessary in, 342 decree pro confesso admits allegations of bill, 342 allegations of bill cannot be impeached, 342 decree depends on sufficiency of allegations in bill, 342-343 practice in taking testimony for final decree, 343 commission for exclusive benefit of plaintiff, 343 notice of execution of commission need not be given, 343 defendant no right to cross-examine plaintiff's witnesses, 343 decree passed upon allegations of bill and testimony, 343 taking bill pro confesso after certain pleadings, 343, note 3 if want of jurisdiction is apparent on bill, bill dismissed, 343, note 3 defence before final decree, 344-346 pleading before final decree, 344 right of defendant to answer before final decree, 344 and note I answer after passage of final decree, 344-345 appeal lies from final decree pro confesso, 345 right of defendant to answer, plead or demur, 345, and note 6 special leave of court after bill taken pro confesso, 345 satisfactory reasons under oath to be assigned, 345-346 granting leave is discretionary with court, 345, note 8 any defense open to defendant to which case is subject, 346 PRODUCTION OF DOCUMENTS. courts of equity have power to compel, independently of statute, 282 either party may apply for, 283 statute as to, applies only to parties to suit, 283, note 4 strangers to suit compelled to produce evidence, 283, note 4 original documents or certified copies to be produced, 283 when order for production of should be in alternative, 283, note 6 what the court must be satisfied of, 283 party applying for must have interest in, 283-284 what documents may not be called for,. 284 documents relating solely to case of opposite party, 284 principal may compel, kept by agent, 284, note 2 existence and possession or control to be shown, 284 may be had either in bill for recovery or for relief, 284 power of granting, exercised with caution, 284 application for, made by petition, 284-285 petition may pray for discovery, 285 order upon application for, conditional, 285 reasonable certainty in designating documents, 285 facts expected to be proved must be stated, 285-286 the books must contain material and necessary evidence 286 Index. 10i» • [References are to the pages.] PRODUCTION OF DOCUMENTS-continued. order requiring, enforced by attachment, 28b order pro confesso, &c, on failure to obey order, 342, 286 and note 2 may be compelled at any stage of a proceeding, 286 and note 3 hearing may be postponed till documents produced, 286, note 3 auditor, production of documents before, 283, note 3; 286-287 PRO FORMA decree, 324, note 1 PROPER PERSON, SUIT IN. how papers certified, &c, 111, note 3 PUBLICATION, PROCESS BY. constructive parties by, 30 1 jurisdiction in rem over property, 30, note 2 jurisdiction in rem over marriage status, 31, note 2 order of, must be prayed for, 159 and note 3 history, purpose and nature, 151-153 when introduced in Maryland, 151 legislation with reference to, 152, note 3 in the federal courts, 83 object of, 151, 153 * nature, 151-152 divorce proceedings, where defendant non-resident, 152 substitute for subpoena, 152-153 has effect of notice, 153 presumption of notice from service of, 153, 156 and note I proceedings in rem, 153-155 statutes valid only in proceedings in rem, 153-154 and note 2 in actions in personam, actual service on non-resident, 153 service of process within limits of State, 153, 154, nates in actions for renewal of lease, 153, note 2 personal decree effective beyond State, what founded on, 154-155 effect of publication, 156-157 gives court jurisdiction over property, 156 and note 1 not necessary that defendant see notice, 156 and note 3 allegations of bill admitted, 156, note 1 effective as to infants, 157 binds only proper parties to bill, 157 and note 6 against wife and husband, 157, note 6 principal statute, 157-159 terms of the statute, 157-158 personal service on non-resident, 158, and notes 2 and 3 proof of personal service, 158, note 2 non-residence should be alleged and established, 159-160 non-residence must be alleged in bill, 159 1020 Index. [References are to the pages.] PUBLICATION, PROCESS BY— continued. abode of defendants need not be stated, 159 party must be a non-resident, 160 and note 5 non-residents, who are, 160, and note 5 fact of non-residence to be proven, 160 substance and object of bill to be stated, 160-161 order of must state substance and object of bill, 160 effect of decree beyond ''substance and object of bill," as stated, 161 and note 2 decree confined to purpose of bill as stated in order, 160-161 strict compliance with statute necessary, 161-162 statutes to be strictly followed, 161 and note 1 record must show compliance with statutes, 161-162 and note 3 unknown heirs and personal representatives, 162-164 the statutes, 162-164 and notes description of unknown heirs in bill, 162-163 object of statute, 163 known personal representatives of non-resident, 163-164 certain statutes for particular cases, 164-165 against unknown reversioners on renewing lease, 164 in interpleader, 163-164, notes 2, 4; 827 and note 4 non-resident non compos mentis, 164 non-resident corporation, 164-165 non-resident legal representative of deceased party to suit, 165 in case of abatement by death, 165, 166 in creditors' suits, 466, and note 1 resident defendants, 165-166 two successive subpoenas returned non est, 165 power of clerk to pass order, 165, note 1 defendant secreting himself after one return of non est, 165 representative of deceased evading service, 165 party leaving State, 165-166 corporations with no resident officers or agents, 166, and note 4 unknown resident defendants, their heirs, &c, 166 abatement by death and defendant secreting himself, 166 right of defendant to appear, 166-167 appear and answer before final decree, 166 bill of review after decree, 166 in default of appearance, bill taken pro confesso, 166-167 proceedings against infant or non-sane defendants, 167 method of publication, 167-168 code provision, 167 selection of newspaper and contract for cost, 167, note 2 length of publication, 167, and notes 3 and 4 granting order a matter of course, 167-168 clerk authorized to pass and issue, 9. 168 Index. 1021 [References are to the pages.] QUESTION OF LAW-DECISION BEFORE TAKING EVI- DENCE. the statute quoted, 311 QUIA TIMET; see "bill quia timet. " RATIFICATION. see "foreclosure of mortgages in general" see "foreclosure of mortgages under power of sale" see "foreclosure of mortgages under assent to a decree" see "sales under decrees" see "auditors' and their accounts" see "partition" see "tax sales, confirmation of" RE-ARGUMENT. of appeal, when granted, 447, note 6 see "rehearing" RECEIVERS. retaining petition for discharge of, to allow creditors to estab- lish claims, 323 order requiring delivery of property to, not final, 380, 395, and note s order refusing to discharge, not final, 382, 390 order refusing to rescind order appointing not final, 382 order refusing to rescind order for appointment of, not final, 384 no appeal from order refusing to rescind appointment, 390 appeal after filing of answer, 391, and note 1 to sec. 320 demurrer considered as answer on appeal, 391, and note 3 to sec. 320 pending creditors' suit, 455-456, and note 4 to collect rents of property in hands of trustees, 569, note 1 right of appeal by, 432, and note 1 commissions of, see "commissions" and 718, note 3 counsel fees to, 664-665 definition; nature of office, 718-719 the general definition, 718 officer, creature, hand, agent of the court, 718 mere custodian of property for the court, 718, 722-723 regarded as trustee in respect to the property, 718 indifferent person, appointed on behalf of all parties, 719, and note 7 proceedings in cause are of no concern to him, 718, note 3 except where his accounts and allowances are concerned, 718, note 3 death of receiver, devolution of property, 718, note 3 administrator of receiver, proceeding against, 718, note 3 1022 . Index. [References are to the pages.] RECEIVERS- -continued. bond of deceased receiver cancelled and sureties discharged, 718, note 3 may act as attorney for creditor, 719, note 5 representation of parties by receiver, 719, note 7 office temporary, 720, note 3 managing receiver, 720, note 3 effect of appointment ; custody of law, 719-720 determines no right, nor affects title, 719 holding of the court, 719 appointment simply protects property, 719, and note 2 title of property not in receiver, 720, note 2 possession of property is in court, 720, note 2 loss of property, how borne, 720, note 2 function to receive and hold property, 719-720 holding for benefit of party ultimately entitled, 720, and note 2 in custodia legis, 720 court has no absolute control over property, 720, note 5 but may have under certain circumstances, 721, note 5 powers and duties; bond, 721-722 general rule in respect to powers, 721 no power to bind estate by contract, 721 transactions to be valid must be by authority of court, 721 must obey orders of court, 721 care of property; separate accounts, 721-722 must give bond, which clerk may approve, 722 local statutory provisions in relation to, 722, note 6 title of, before filing bond, 722, note 6 form of condition of bond, 722, note 7 continuing business, 721, note 1 authority in a certain case, 721, note 1 admissions not binding on creditors, 721, note 3 attachment against for delinquency, 722, note 5 power of sale, 722-723 depends upon order of court, 722 power of the court to sell property, 722 court may direct receiver to sell, 722-723, and note 3 possession of property by receiver, 723 necessary, to place property in custody of court, 723, and note i mere appointment of receiver not sufficient, 723 if holder of property refuses to deliver it to receiver, 723 as between parties, 723, note 2 as to third persons, 723-724, note 3 funds claimed by two receivers, 724, note 3 to sec. 6x6 return of property taken in error, 724, note 3 to sec. 616 procedure in contest with third persons, instance, 724, note 3 to sec. 616 Index. 1023 [References are to the pages.] RECEIVERS— continued. possession of leasehold property, 724 duty to take possession of, 724 does not necessarily become assignee of term, 724, and note 1 restricted duties and powers, 724 instance of possession and liability for rent, 724, note I railway receivers' possession of leased lines, 725, note 1 to sec. 617 suits by receivers, 725-726 may sue in his own name, 725, and notes 1, 3 general authority from court, 725 where statute authorizes, 725-726, and note 4 substituted receiver, 725, note 1 suit in name of executor, 725, note 1 statutory provisions, 725-726, note 3 suits against receivers, 726 not unless by consent of court appointing, 726 suit without leave, contempt of court, 726 judgment against, 726 the rule changed in the federal courts, 726, note 2 suit for action authorized by court, 726, note 2 interference with property in receivers' hands, 727-728 no interference allowed, 727 contempt of court, 727 rule applies whether claim paramount or not, 727 no distraint, unless by leave of court, 727-728 procedure to distrain, 728 status of property not to be disturbed, 727, note 1 attachment against funds in hands of, 727. note J taxes, enforcement of a claim for, 727, note 3 . where decree appointing is for safe-keeping merely, 727, note 3 case where judgment became lien on property in hands of, 727, note 3 decree for distribution of assets, 727-728, note 3 enjoining proceedings at law, 727-728, note 3 no extra territorial functions, 728 functions limited to courts of State, 728, and note 1, 13, note 2 principles of comity do not apply, 728, and note 2 allowed to file claims in some cases, 728-729, note 2 suit by corporation for use of receiver, 729, note 2 to sec. 621 entitled to receive certain funds, 729, note 2 to sec. 621 instance of foreign receiver filing petition, &c, 729- note 2 to sec. 621 foreign debts assigned to purchaser for suit, 729, note 2 to sec. 621 bill for receiver, 729-730 principles in relation to, 729 1024 Index. [References are to ihe pages.] RECEIVERS— continued . clear statement of facts, 729 ' exhibits and affidavit, 729 prayer for receiver, 729 sufficient facts to be stated, 729-73° allegations merely, not sufficient, 730 not on information merely, 730 bond by plaintiff in proceeding for receiver, 729, note 3 procedure upon filing of bill, 730-731 when bill for injunction and receiver, 730 setting application for receiver for hearing, 730, and note 1 answer filed before hearing to be considered, 730 hearing on bill and answer, 730 motion to rescind ex parte order granting, 730 if motion heard on bill and answer, 730-731 notice, failure to give when required by courts, 730, note 1 form in Baltimore city of order as to rescinding, 730, note 5 statutory provisions as to procedure, 731-732 testimony on motion to rescind, 732 oath to answer on motion to discharge, 732 answer under oath as affidavit on motion to appoint or dis- charge, 731, 209-210 certain provisions in corporation cases, 731 appeal from order appointing, 731, 382, note 3, 390 order with regard to possession of property or income, 731 notice of order binding upon knowledge, 731-732 selection of receiver, 732 when appointment is made ex parte, 732 after appointment, selection still open, 732 recommendations of parties in interest, 732 impartiality of appointee, 732, note 1 practical men of knowledge and experience, 732, note 1 compare 465 and note 4, 567-568, notes expenditures by receivers, 732-733 cannot pay out funds without order of court, 732 sums in preservation or improvement of property, 733, and note 2 limitations upon the rule, 733 compelling obedience to order directing payment, 733 expenses for safe-keeping property, 733, and note 4 expenses for stationery, 733, note 4 discharge of receiver — when, 733-734 when necessity for office ceases to exist, 733-734 liable as officer until funds disposed of, 734, and note 3 must retire when required, 734 case where receiver appeals from order of discharge, 734, note 4, 735 ' Index. 1025 [References are to the pages.] RECEIVERS— continued . enforcement by attachment of order of discharge, 734, note 4 order of discharge, nature of, 734-735 adjudicates nothing affecting rights, 734 operates as release of court's hold on property, 735, and note I determines no right, 735 no ground of appeal, 382, 391, 735, see also "appeal" receiver has no right to object to discharge, 735 instance of discharge in creditors' case, 735, note 4 instance of discharge in case of caveat to will, 735, note 4 receiver after discharge, functus .officio, 735, note 4 death of one of two co-receivers, 735, note 4 Principles regulating the power of appointment. the general principles, 736 the five rules in Blondheim v. Moore, 11 Md. 365, 374; 736 comments on the rules, 736, note 1 principles settled, but application difficult, 736, note 6 nature of the power of appointment, 737 discretionary, delicate, high power, 737 great caution in exercise of required, 737 interest of the plaintiff, 737 claimant must have title to property, 737 acknowledged interest in the subject-matter, 737 instance of dower claim, 737-73%, note 2 claim to part only of the property, 737-73%, note 2 fraud or imminent danger, 738-740 the rule stated, 738, and note 2 comments on the rule, 738, note 1 authority and duty of court depends upon question of danger, 738, and note 3 preservation of the property, 738-739 where personal property, or rents of real estate are in danger, 739 where there is no fraud or spoliation, but danger, 739 abuse of trust as constituting, 739 where party in possession of rents insolvent, 739 averment of insolvency important, 739-74°, and note 7 in cases of rents and profits, 738, note 3 if party can have relief in any other way, 739, note 5 in creditors bill cases danger of loss of rents, 740, note 8 death of lunatic, receiver before appointment of administrator, 740, note 8 appointment before answer, 74,0- 741 not unless grounds are very strong and special, 740 what must appear, 740-741 averment of insolvency important, 741 65 1026 Index. [References are to the pages.] RECEIVERS— CONTINUED. in proper case, court appoints, 741 reversal on appeal, if bill not sufficient, 741 rule only enforced on appeal, 741 appointment against legal title, 741-742 court interferes with reluctance against, 741 only in case of fraud and danger, or danger of loss, 741-742 instances where the rule has been applied, 742 title equitable in part, 741, note 1 In partnership cases. general principles, 742 same in partnership as in other cases, 742 court does not determine controversies between partners, 742 only question is whether there is necessity for receiver, 742 case of adult partner against infant partner, 742, note I question as to dissolution at the hearing, 742, note 1 absconding partner, receiver for, effect on partnership, 746, note 2 r before dissolution, 743-744 where safety or protection of property requires, 743 great abuse or strong misconduct, 743, and note 3, and 742, note 1 breach of duty or violation of articles of partnership, 743 instance, 743, note 3, 744, note 2 exclusion by one partner of the other from business, 743 instance of sufficient allegations, 743, note 1 irreconcilable disagreement between partners, 743-744, and note 2 after dissolution, 744 court interferes with less reluctance, 744 some urgent and pressing necessity must be shown, 744 in some cases, appointment as of course, 744, note 2 costs of receivership charged against fund, 744, note 2 instance where alleged facts sufficient, 744, note 2 winding up the business, 745-746 interference with right of, ground for receiver, 745, and note I not necessary for property to be in imminent peril, 745 where partners have delegated right to wind up, 745 court interferes reluctantly against settling partner, 745 what must be shown to authorize interference, 745-746 in case of death, 746 if both partners are dead, 746 representative of deceased against surviving partner, 746 surviving partner engaging in new transactions, 746, note 2 power of receiver of surviving partner, 746, note 2 Index. 102 1 ? [References are to the pages.] RECEIVERS— continued. In corporation cases. general equity jurisdiction, 747 where conditions required are fully met, 747 property in Maryland of foreign corporations, 747, note 1 portion of railroad property in Maryland, 747, note 1 local statutes for certain classes of, 756 in cases of fraud, mismanagement and collusion, 746 apart from statute, equity cannot dissolve, 747 may compel officers to account for breach of trust, 747 will not' appoint receiver because of, 747 case of fraud justifying receiver, 747-748, note 1 building association case, 748, note 1 to sec. 642 statutory dissolution in case of insolvency, 748-749 statutory provision, 748, and note I relation of shareholders to corporation, 748 and 749, note 2 proof of insolvency, 748-749 taxes to be paid before dissolution, 748, note 1 right of minority stockholders, 749 in settlement of affairs of dissolved corporations, 749 ascertaining value of assets without sale, 749, and note 1 powers of statutory receivers, 749-750 vested with estate of corporation, 749, and note 1 may sue stockholder for subscription to stock, 749 power to set aside preferences, &c, 749-750 other powers, 751 receivers' certificates, 750 definition and nature, 750 not proper in private corporation cases, 750, and note 2 not proper in case of firm or copartnership, 750, note 2 only proper in railroad mortgage cases, 750 tendency of judicial decisions, 750 other statutory provisions, 751 voluntary application for dissolution and receiver, 751 other duties and powers, 751 proceedings for misuse, abuse or non-use of corporate powers, 75 1 Miscellaneous. in cases of cotenancy, 751 tenants in common of realty, 751 in partition cases, 751 creditor against debtor cases, 751-754 general rule respecting, 75J-754 non-judgment creditors' right to proceed in equity, 751 and ' note I in full instances of proceedings by creditors, 751-754, notes 1028 Index. [References are to the pages.] RECEIVERS— continued. unusual and pressing emergency required, 752-753 fraud or imminent danger, 753-754 mortgagee against mortgagor cases, 754 inadequacy of security and insolvency of mortgagor, 754 wasting or deterioration of property, 754, note I in case of apprehended danger, 755, note I to sec. 650 canal mortgage covenant, 755, note I to sec. 650 injunction and receiver, 755 purpose of injunction in such cases, 755 where receiver not appointed, injunction may be granted, 755 case of injunction dependent upon receivership, 755, note 2 miscellaneous instances, 755-757 where executor refused to collect fund, 755-756, and note 1 local statutes for certain classes of corporations, 756 tax collections, receiver to take charge of, 756 landlord having negligent and insolvent tenant, 756, note 3 in case of unlawful entry upon land, 756, note 3 pending litigation in ecclesiastical court, 756, note 3 statute of limitations, running of, 756, note 3 payment by receiver does not revive barred debt, 756, note 3 instance of order too broad, 756-757, note 3 husband absconding, proceeding by wife, 757, note unusual contract by receiver, opposed by beneficiaries, 757, note 3 RECORD. as proof of proceedings of court, 312 costs of obtaining for use in trial of action, 347, note 2 amendment of on appeal, 447 transcript of m'anner of making by clerk, 9 duty of clerk to make and transmit, on appeal, 441 clerks may refuse to transmit, till costs paid, 441 clerks cannot refuse to make, till paid for, 441 contents of, 441, note 2 duty of clerk and appellant as to, 442 time of making and transmission, 444 time of transmission on refusal to grant injunction, 444-445 neglect of clerk in transmitting, consequence of, 445 entry of appeal struck out for certain acts, 445, and note 4 in case of cross-appeals, or more than one appeal, 445, note 1 omitting papers from, under agreement to use originals, 445, note 1 REHEARING. of decrees by consent, 333-334, 356, note 6 for costs, when allowed, 350-351 what is, 355 petition for, to correct certain errors, before enrolment, 355-356 Index. 1029 [References are to the pages.] REHEARING— continued. granting or refusal in discretion of court, 356, 387 no appeal from action of court granting or refusing, 356 compared with motion for new trial at law, 356, 387, note 7 motion for, does not suspend operation of decree, 356 application for, made by petition, 356 what petition for contains, 356 oath to petition for, 356, 357, note 10 not granted after enrolment, 356, and note 10 after execution of decree, its reversal or variation cannot prejudice rights of parties acting on it, 357, 612, note 5 to sec. 516 discretion of court as to dismissing of petition for, 387 RELATOR. see "information" must sign written authority to solicitor for use of his name, 14 such written authority to be filed, 14, and note 4 REMAINDERMEN. when represented by tenant for life in partition proceedings, 41, and note 2 when necessary parties, 41-44, and notes unborn, legislation as to, 44 REMAND; see "appeal." REMOVAL. to court of chancery, from county courts, 2-3, note 8 to superior court from court of chancery, 4, note 1 from superior court to circuit court of Baltimore city, 5 right of next friend to make affidavit for, 16 to court of law in lieu of dismissal, 126 does not exist in equity as understood at law, 296, 297, and note 1 in case of disqualification of judge, 297 of issues sent to court of law, 294, 297 REPLICATION. what is, 221 cause at issue when filed, 221, 222 denies defence set out in answer, 221 office of, 221. 321 a mere form, 221, note 5 filing of, waives technical objections to form of defence, 221, note 4. 188 filed to plea or answer, 221, 186, 188 general replication defined, 222 special replication defined, 222 special, abolished, 222 issuance of commission to take testimony an admission of issue made up, 222 1030 Index. [References are to the pages.] REPLICATION— continued. time of filing of, 223 rule further proceedings and dismissal for failure to file, 223 form of, 223 filing of, nunc pro tunc by federal equity rule, 223, note 2 when case set for hearing on bill and answer, 321-322 when application for injunction set down for hearing, 685, note 3 REPRESENTATION; see "parties." RESPONDENT. term "defendant" used instead of, 107, note 3 REVIEW, BILL OF; see "Bill of review." REVIVOR; see abatement. RULE FURTHER PROCEEDINGS. a substitute for motion to dismiss for want of prosecution, 299 for failure of plaintiff to file replication, 223, 299 after cause at issue and commission issued, 299, note 4 after decree to account, as basis for dismissing bill, 299, note 2 bill dismissed on failure to comply with, 299-300 dismissal for want of compliance not a bar, 300, note 3 to compel answer from co-defendant, 300, 215, note 2 when demurrer or plea accompanies answer, 300 in a certain injunction case, 700, note 4 RULE SECURITY FOR COSTS. rule may be laid at any time before decree, 297-298 waiver of right to, 297, note 1 to sec. 239 ignorance of non-residence, 298, note 1 rule once waived is not revived by, &c, 298, note 1 in Baltimore city a deposit of money held necessary, 298, note I in Baltimore city no solicitor, &c, to be admitted, 298, note I forms, .of motion and order for, 298, note 1 when some of plaintiffs are residents, 298-299 old practice as to fact of non-residence, 299, note 3 rule improperly laid cannot be enforced, 299 if rule not complied with, bill dismissed, 299 form of order of dismissal, 298, note 1 party in default cannot lay the rule, 299 in interpleader cases, 828, note RULES, EQUITY, ADOPTED BY COURT OF APPEALS, adopted by judges of court of appeals, 11-12 have the force of law, 12 cases and procedure not provided for by, 12 may be rescinded or altered by court of appeals, 12 based in part upon federal equity rules, 12, note 1 incorporation of, in code, 12, note 5 see the rules in full in appendix Index. 1031 [References are to the pages.] RULES OF COURT. inherent power of court of record to make, 9 statutory power of judges to make, 9 necessary to due administration of justice, 9-10 fines for violation of, g proper office of, 10 prescribe a law to the court, 10, 660 must not be contrary to statutory provisions, 10 cannot take away a right secured by law, 10 cannot divest court of a discretion confided by statute, 10 must not be inconsistent with equity rules, 10 of chancery, where may be found, 10, note I in Baltimore city made by supreme bench, 10, note I right of court to make, not restricted by equity rules, 10, note 1 should be in writing, 10, note 2 court of appeals reluctant to decide as to propriety of, 10, note 3 certain rule beyond power of court to make, 10, note 6 no discretion in inferior court to dispense with, io-ll discretionary power of court over, II, and note 9 violation of by court, ground of appeal, II no judicial notice of taken by court of appeals, n, and note 13 presumption as to action of lower court in respect to, 11 as to commissions, imperative, 11, note 8, 660 rules of court of appeals, 441, note 1 rules of certain courts, in the appendix SALE. see "sale before final decree'' see "sale for the purpose of partition" see "sale of infants' property" see "sale of lunatics' property'' see "sale to bind persons not in being" see "sales under decrees" see "foreclosure of mortgages,'' 3 titles SALE BEFORE FINAL DECREE. the code provision, 828-829, and notes 1, 4 object of the provision, 829, and note 3 effect of the order of sale, 829 a summary remedy under an old jurisdiction, 829 not a special or limited jurisdiction, 829 sale of mortgaged real estate, 829-830, note 5, 530 notice to parties interested not essential to jurisdiction, 830 notice should however be given in all cases, 830, and note 2 error in this respect not a jurisdictional one, 830 may be made before appearance or answer, 830, and note 1 necessity to be shown in such cases, 830-831 discretion of the court; nature thereof, 831 1032 Index. [References are to the pages.] SALE BEFORE FINAL DECREE— continued. discretion reviewable on appeal, 831, 385, note 1 propriety of exercise of not collaterally open to attack, 831 proof satisfactory to court that sale would be ordered, &c, 831 instances where satisfactory proof not furnished, 831, note 4 power to be exercised only in plain cases, 831 must appear that sale will be decreed on final hearing, 832 sale ordered, may be suspended, 832 order of sale interlocutory, not final, 832 appeal lies from order directing a sale, 832 no appeal from order refusing a sale, or suspending, 832, note 5 SALE FOR THE PURPOSE OF PARTITION, see also "partition" various statutory proceedings distinguished, 476-477 different classes of statutes to be regarded, 476 questions as to jurisdiction under statutes, 476, and note 1 the various statutes, 476-477 the principal statute, 477-478 the act of 1785, ch. 72, sec. 12, and supplements, 477-478, and notes 1, 2 sale of dower of wife of tenant in common, 478, note 2 allegations of the bill under the statutes, 478-479 jurisdictional allegation as to interest and advantage, 478-479 interest of all parties concerned, 479 object in view — separate enjoyment, 479, 486 enjoyment of interest by sale or partition, 479 partition a matter of right, 479, 485 bill for sale amendable to bill for partition, 479 sale when partition not feasible, 479, note 4 plaintiffs under the statutes, 479-480 any person having joint interest, &c, 479-480 estates in coparcenary, 480 where infants entitled to executory devises, 480 tenant for life and reversioner not joint owners, 480 concurrent interests, 480 the code provisions, 480-481 the provision in full, 480, note 1 to sec. 397 jurisdiction, primarily and ultimately, 480-481, and note 4 provision construed with reference to pre-existing law, 481 issue is whether property should be sold or divided, 481 ' proceeding cannot serve as action of ejectment, 481 object is to procure a sale, 481 confirming contract for sale of infants' land, 480-481, note I jurisdiction to sell, dependent upon statute, 481, note 2 plaintiffs under the code, 481-482 terms of the statute, 481 terms of descriptive of interest of a plaintiff, 481 trustees for benefit of creditors may not file bill, 481-482 Index. 1033 [References are to the pages.] SALE FOR THE PURPOSE OF PARTITION-continued. mortgagee of undivided interest may not file, 482 infants may be plaintiffs, 482 how infants may sue, 482 proceeds of sale payable to infants guardian, 482 staying proceedings if question as to quantity of interest, 482, note 3 parties to the proceeding, 482-483 reversioners in sale of leasehold, not proper, 482 nor incumbrancer, or mortgagee or judgment creditor, 482, and note 2 nor tenants in possession, 482 only persons who are entitled to partition if no sale, 481-482 only those who are entitled to share in proceeds, 482 allegation of bill as to loss or injury, 483-484 the allegation jurisdictional, 483 allegations equivalent to the statutory phrase, 483, note 1 proof of indivisibility when allegation omitted, 483-484 test of jurisdiction, whether demurrer lies, 484 bill must show title of plaintiffs, 484 case of jurisdiction sustained, 484 indivisibility without loss or injury, 484-485 fact of is basis of jurisdiction, 484, and note 1 when fact exists party has right to aid of court, 484 where parties adults and do not need aid of court, 484-485 parties entitled, though not beneficial to them, 485 tenants in common entitled to separate enjoyment, 485 partition a matter of right, 485, 479 if loss or injury would occur, the sale to be made, 485 proof of jurisdictional allegations, 485-486 necessity for, under statutes, 485 admissions may be sufficient, 485 admissions by infants not sufficient, 485 if infants plaintiffs, proof still necessary, 485, note 3 to sec. 402 under code proof necessary, 485-486 want of proof renders decree impeachable by infants, 486 report of commissioners to partition land, as proof, 486, note 4 proof of jurisdictional allegation, 486, and note 5 what property may be sold, 486-487 not property which cannot be partitioned, 486 not undivided, one-fourth interest in land, 486 kind of property; statutory provision, 486-487 trust property, 487 description of property, 487 defendants receiving rents may be made to account, 487 property in remainder, 486-487, note 1 vessels or other personal property held jointly, 487, note I to sec. 403 1034 Index. [References are to the pages.] SALE OF INFANTS' PROPERTY. see also "sale for partition" see also "sale to bind persons not in being" inherent chancery jurisdiction, 488-489 power to convert real estate into money by sale, 488, and note 2 not where adult had part interest in land, 488, note 2 legislation is enlargement of this power, 488 exercise of power by act of assembly, 489 local or special acts forbidden by constitution, 489, note 3 instances of exercise of jurisdiction over infants, 488, note 2 statutory provisions, 489-491 the act of 1816, ch. 154, sec. 1, 489-490, and note 1 other acts, 490, and notes 2, 3 the code provisions, 490, and note 4 liability of being confused with other acts, 490-491 showing cause after arrival at full age, 489, note 1 nature of the proceeding, 491-492 on behalf of infants alone, 491 for benefit of one or more infants, 491 interests and benefit of infants the only object, 491 petition should allege "benefit and advantage," 491-492 form of proceeding, 492 petition of guardian or prochein ami, 492, and note 2 instance where jurisdiction acquired, 492 appearance and answer of infant, 492 infant must be summoned, 492 confirmation of void sales, 492 proof of the "benefit and advantage," 493 substance and method of proof must conform to statute, 493 the indispensable prerequisite to a sale, 493 the necessary averment and proof, 493 mind of the court must be satisfied, 493 supplying proof when decree attacked for want of, 493, and note 5 reference not proper to division of property, 493, note 3 disposition of the proceeds of sale, 493-494 prior to the code of i860, 493-494 provisions of the code of i860, 494 liability of guardians' bond, 494 object of the statute, 494 proceeds of sale of land of non-resident infant, 494 act of 1890, ch. 18, 494, and note 7 proceeds now payable to guardian, 494 failure to pay over as required, casts doubt on title, 494, sec. 3 miscellaneous statutory provisions, 495 mortgage of infants' property, 495, and note 1 lease of same, 495 Index. 1035 [References are to the pages.] SALE OF INFANTS' PROPERTY— continued. exchange of same, 495 principal not to" be applied to maintenance, 495 reversion dependent upon life estate, 495 death of infant, proceeds descend as estate would, 495 certain other provisions, 495, note 6 confirmation of contract for sale of land made on behalf of in- fant, 480, note 1 SALE OF LUNATICS' PROPERTY. statutory jurisdiction over lunatics' property classified, 500 inherent jurisdiction of Maryland chancery court, 500, note 1 non compos mentis, meaning of term in code, 500 care of lunatic's person and management of estate, 501, and notes the statutory provision, 501, and note 2 chancery statutory jurisdiction not an ouster of common law, 501, note 2 inquisition necessary before sale, 502, and note 3 purpose of commission of lunacy, 502 appointment of guardian or committee, 502 by whom suit filed, code provisions, 502, 506, note 1 application of guardian, committee or trustee, 502, and note 3 sale for investment, code provisions, 502-503, and note 1, and 506, note 1 power to decree sale for investment based upon statute, 503 regular chancery proceeding necessary, 503 lunatic must be summoned, or published against, 503, and note 3 procedure in certain cases, 503-504 appearance and answer of lunatic, 504 proof of facts, 504 answer by guardian or committee, 504 sale for support of lunatic, 504-505 the original and code provisions, 504-505, and note 2 regular chancery proceeding not necessary, 505, and note 3 lunatic need not be summoned, 505 object of statute, 505 who may apply for the sale, 505 sale to pay debts of lunatic, 505, and note 1 statutory provision, 505, note 1 claims of creditors before inquisition, 506, note 1 to sec. 422 lease of property, new lease, &c, 506, and note 2 present statutory provisions, 506-507, and notes by whom application for sale to be made, 506, note 1 in sale for investment, no process necessary, 506, note 1 investment in stocks, mortgages, &c, 506, note 1 vesting of .principal on death of lunatic, 506, note 1 1036 Index. [References are to the Dages.] SALE OF LUNATICS' PROPERTY— continued. bill of review, time allowed lunatic to file, 506, note I an unconstitutional clause of the statute, 506-507 lease, new lease, &c, 507, and note 3 procedure modified, 507, and note 4 confirmation of contract for sale of land made on behalf of lunatics, 480, note 1 SALE TO BIND PERSONS NOT IN BEING, see "parties," pages 41-44 the statute and its purpose, 496-498 without statute, no power in court to bind interests of parties not in being, 496 statute supplied the deficiency, 496, and note 2 the act of 1862, ch. 156, 496 the act of 1868, ch. 273, 496-497, and note 3 almost every conceivable estate embraced, 497, and note 6 decree binding upon all parties in interest, born or unborn, 497 purpose of the statute, 497-498 who may be plaintiffs, 498 application of any of the parties in interest, 498 interest of plaintiff must appear in bill, 498 suit by infant should be in infants name, 498 certain irregularities in this respect, 498 failure of guardian to sign answer, 498, and note 3 proceeds of sale to be invested or limited, &c, 498, 499, note 2 test of interest of plaintiff, 498, note 1 advantage of the parties concerned, 499 interests of all parties to be subserved, 499 interests of those in being and those after-born, 499 proof, character of, 499, and note 1 instances of the application of the statute, 499 certain instances, 499, and note 2 SALES UNDER DECREES. see also "foreclosure of mortgages," 3 titles life tenants do not represent remaindermen in, 41-42 decree cutting off remaindermen not in esse, 42-43 decree directing, for partition is final, 377 order for, without determining rights, not appealable, 380, and note 14 order continuing former order of, not appealable, 381 order rescinding order of ratification not appealable, 383 order annulling and setting aside, appealable, 383, note 2 order refusing to direct, not appealable, 383, 384, note 3 order rescinding interlocutory order for, not appealable, 383- 384, note 3 order directing sale is appealable, 383, note 3 Index. 1037 [References are to the pages.] SALES UNDER DECREES— continued. order suspending, and referring papers to auditor, not appeal- able, 384 appeal from interlocutory order of, 395 appeal from order refusing to authorize, 395 appeal from order rescinding interlocutory order of, 395 land lying in more than one county, 6-7 amendment of defective bill, 234 bill for may be amended into bill for partition, 234, note 4 consolidation of suits for sale of encumbered land, 295 proper parties to proceedings for, 82 parties in proceedings to vacate, 82, 67 and note 4 the court is the vendor, 566-567 sale a transaction between court and purchaser, 566 contract not consummated until ratified, 566, 602 before ratification, transaction an unaccepted offer, 567, 602 sale not within statute of frauds, 567 distinction between trustee's sale and sheriff's sale, 566, note I court alone decides upon sale, 566, note 1 trustee, nature of office of, 567-568 trustee the hand, agent or officer of court, 567-568, and note 4 has no title or interest in property or proceeds, 567-568 is responsible to court alone, 567, note 4 court may appoint wherever decree for sale passed, 567, note 4 who may and may not be appointed, 567-568, note 4 selection of in creditors' bills, 465, and note 4 has no power to do except as ordered, 568, note 4 need not accept office, but if accepts, bound to obey court, 568, note 4 does not represent parties, 568, and note 6 functions prescribed and limited by decree, 568 may be authorized to collect rents, 531 has no interest in proceedings, 568, note 5 cannot dispose of rights, 568, note 5 estate must bear loss occurring without his default, 568, note 6, and 605, note 4 right to appeal, 430-431, and notes I, 2 decree takes possession of property, 569 property in custodia legis, 569 control of court not to be disturbed, 569 enforcement of superior lien, 569 enforcement of claim for taxes, 569, and note 4 property may be rented, &c, 569, note 1 interest of parties in the property, 569, note 1 attachments laid in hands of trustee, 569, note 2 bond of trustee; must be given before sale, 569-570 failure to give bond— sale not void, 570, and note 2, 545 1038 Index. [References are to the pages.] SALES UNDER DECREES— continued. not for benefit of purchaser, nor ground of exception by nim, 570 improper bond does not affect validity of sale, 570. 545 court may require proper bond, or remove trustee, 57° advertisement of sale, 570-572 purpose of, 570-571, and notes 1 and 2 trustee must comply with decree's requirement as to, 571 failure to comply, ground to set aside sale, 571, and notes 4 and s when sale postponed, 578, note 8 to sec. 493 requirements in deed or mortgage must be followed, 571, note 4 objection as to by purchaser, 571, note 4 twenty days notice does not mean twenty days daily, 572, and note 7 omission to give usual notice on day of sale, 572 names of parties need not be stated, 572, and note 9 incumbrances need not be mentioned, when, 572 trifling errors may be overlooked, 572 impossible notice prescribed by mortgage, 572, note 8 non-observance of a certain custom, 572, note 8 publication of — proof, 572, note 11 description of property, 572-574 advertisement should definitely describe, 572-574 instances of descriptions, 573-574, notes 1-4 bids and bidders, 574-576 discretion of trustee in accepting instances, 574-575, and note I bid of married woman, 574, note 1, 621 parties may bid, 585, note 4 dispute between bidders — offering property again, 574, note I bidders make themselves parties, 574, note 1 bid not made in good faith to be rejected, 575 bids are propositions, not to be retracted after acceptance, 575 are presumed to be real, not nominal, 575 bye-bidders and puffers, fraud, 575, and note 6 trustee reporting two or more persons as highest bidders, 575, note 2 trustee announcing limit, 575, note 3 bidders names need not be announced, 575, note 3 "knocked down" — when property is, 575, note 4 averaging bids, 575, note 5 agreement not to bid against each other, 575, note 5 opening biddings not practised here, 576, and note 7 rejecting sale to let in higher bid, 576, note 7 reserved bid for benefit of owners, 576, note 6, and note 2 duty of trustee in making sale, 576-577 to offer property in best manner, &c, 576-577 Index. 1039 [References are to the pages.] SALES UNDER DECREES— continued. to observe good faith and be impartial, 576-577 to disembarras title of doubt, 577 not to make misleading statements, 577 competition among bidders to be fair, 577 presumption that trustee has done his whole duty, 577 presumption otherwise in certain case, 577 personal absence of trustee from sale, 577 sale in solido or parcels, by acre or in lots, 577, note 3, 529, note 5 sale of debts due estate, 577, note 3 misconduct of prior trustee, 577, note 8 may postpone sale if advantageous, 577-578, note 9 weather bad, and another objection, 578. note to sec. 493 election day sale on, 578, note to sec. 493 compliance with modal regulations, 578-579 duties of trustee prescribed, 578, and notes 1 and 3 departure from modal regulations ground of objection to sale, 578-579 non-observance of certain regulations, 578, note 1 fair and reasonable compliance required, 578, note 1 duties of trustees under deeds, 578, note 1 regulations must be practicable, 579, note 3 laches in making objections, 579, note 4 waiver of non-compliance, 579-581 sale must be advantageous, 579 satisfactory reasons for trustee's action, 579 sale in parcels when sale of entire tract ordered, 579-580 facts necessary to authorize ratification, 580 certain excuses for non-compliance, 580, and note 5 sale, private when public ordered, 580-581, and note 5 certain objection made by purchaser, 580, notes 3 and 6 sale confirmed if no objection made, 581, and note 8 private sale open to objections not fatal to public, 581 parties may be heard before ratification, 581 principle that court will ratify act done if it would have been ordered, 581 report of sale, 581-583 code provides that trustee must make report, 581 decree provides to this effect, 581-582 affidavit of fairness, 581-582 should give full account of proceedings, 582 description of property in, 582 amendment to correct errors in, 582 errors in, no ground to annul sale, 582 instance thereof, 582, note 6 1040 Index. [References are to the pages.] SALES UNDER DECREES— continued. case where sale ratified though no report of sale made, 582, note 2 title of purchaser not wholly dependent on, 582, note 2 reports by trustees for benefit of creditors, &c, 582, note 2 copy of advertisement filed with, 582, note 5 certain errors in, 582, note 6 petition by purchaser to amend, 582-583, note 6 credit given to, unless contradicted, 582-583, 603, and note 6 facts stated in, taken as true, &c, 583, 603, and note 6 order nisi on report of sale, 583-584 order that sale be ratified unless, &c, 583 copy of order to be published, 583 certificate of publisher as proof of publication, 583-584 purpose of order nisi, 583, note 1 has prima facie foundation of correctness, 583, note 1 is usually passed by clerk under code, 583, note 2 in Baltimore city, order on private sale passed by judge, 583, note 2 period for which order nisi runs, 583, note 3 publication in daily newspaper in Baltimore city, 584-585, note 4 "Daily Record" is a daily newspaper, 584, note 4 final order of ratification after time limited, 584 exceptions after time limited, 584 immediate ratification by consent without order nisi, 584, and note S all objections open before final ratification, 584 practice in Baltimore city, 584, note 5 purchaser's right to confirmation of sale, 584-585, 587 faith of the court pledged to ratify proper sale, 584 rights of purchaser to be guarded, 585, 587 intendments made to support sale, 585 court interferes reluctantly with judicial sale, 585 sale in conformity with terms of decree, rule as to, 585 purchaser's rights compared with those of parties, 587 purchaser buys subject to confirmation, 587-588 purchaser has right to insist upon validity of sale, 584-585, note 1 substantial grounds necessary to set aside sale, 585, notes 1 and 6 fraud on the part of others not to affect purchaser, 585, note 1 parties purchasing to be protected, 585, note 4 purchaser's right to rejection of sale, 586 no undue advantage to be taken of purchaser, 586 in case of misrepresentation by trustee, 586, and notes 1 and 3 mistake on the part of the purchaser, 586 unless purchaser injured, cannot abandon sale, 586, note 1 Index. 1041 SALES UNDER DECREES— continued. purchaser must make out plain case for relief, 586, note 1 when property different from that described, 586, note I, 802- 803 parties right to rejection of sale, 587-588 benefit of interested parties always and chiefly regarded, 587 purchasers' rights subordinate to those of parties, 587 purchasers lose benefit of sale if objections exist, 587 in case of error, mistake, misunderstanding, &c, 587 where property of infants sold, 587 vacating sale if property not fairly put on market, 587-588 failure of parties to make objection to proposed sale not reason for ratification, when, 588 exceptions by one opposing creditor against majority, 588, note 5 o objections to the title, 588-590 see specific performance, sees. 690-695 rule caveat emptor applies, 588 court sells only interest of parties to suit, 588 purchaser bound to examine title, 588-589 may object if title not clear and marketable, 589, 563, 548, note 2 objection before or after final ratification, proviso, 589, 590 vacating sale by bill after proceeds distributed, 589, note 6 vacating mortgage sales for defect in title, 589 if purchaser liable to be disturbed, sale rescinded, 589-590, and note 8 court makes no warranty of title, 590, and note 10 where trustee represents title to be good, 590 purchaser entitled to title as sold, 590 where purchaser knows title to be defective, 590 no relation of trust between trustee and purchaser, 588, note 1 no examination of title by officer, in this State, 588, note 1 decree for sale does not affect persons not parties, 588-589, note 2 title by adverse possession, 589, 800 purchaser evicted after purchase money distributed, 589, note 6 incumbrances on the property, 591 trustees' sales are made subject to incumbrances, unless stated to the contrary, 591, and note 1 incumbent or purchaser to show that he bought free from, 591 representation by trustee as to, 591 rescision of sale upon application of purchaser, 591 court not bound to disencumber title of all liens, 591 retaining purchase-money to pay off, 591, and note 6 jurisdiction, want of; 592 party or purchaser may by exceptions attack decree for, 592 66 1042 Index. [References are to the pages.] SALES UNDER. DECREES—continued. exceptions to sale to attack decree, 592-593 decree for sale not reviewable on exceptions to sale where court has jurisdiction, 592, and note 4 errors in decree reached by appeal or bill of review, 592, and note 4 lack of evidence to justify decree no ground of exception to sale, 593 decree for sale not reviewable on exceptions to auditor's ac- count, 592, note 3 rule not applicable to sales under mortgages with assent to decree, 593, note 4, and 562-563, and note 1 inadequacy of price, 593-595 setting aside sale for, 593 w mere inadequacy of itself not sufficient, unless, &c, 593-594 character of inadequacy necessary to vacate sale, 593-594 inadequacy depends upon facts at time of sale, 595 instances of inadequacy o,f price, 594, notes may be evidence of fraud or misconduct by trustee, 594, note 3 inadequacy of price with other circumstances, 595-596 where other objections exist to sale besides inadequacy, 595 private sales carefully scrutinized, 595 discretionary powers of trustee, 596 where mortgagee is purchaser at his own sale, 595, note 2, 538, notes 2 and 3 the cases classified, 596, note 5 deficiency of land, 596-597 manner of relief, when authorized, 596-597 sale not generally rescinded, unless, &c, 597 compensation, how estimated, 596-597, and note 2 when the main object of purchase is frustrated, 597, note 3, 803 deficiency of land — abatement of purchase money, 597-599 where land is sold by the acre, at so much per acre, 597 where land is sold in gross, for a sum certain, without qualify- ing words, 597 where land is sold as a tract for sum certain, 597-598 where quantity does not enter into essence of contract, 598 where words "more or less" are used, 598 surplus of land, "more or less" used, 598, and note 5 relief by bill or petition, in what cases, 599 claim may be made after confirmation of sale, 599 bill of review against parties, 599 survey to determine acreage, 597, note 1, 598, note 2 plat, exhibition of, equivalent to averment, 597, note 2 deficiency as presumption of fraud, 598, note 5 instances of "more or less," 598, note 5 ; "about" not equivalent to "more or less," 598, note 5 Index. 1043 [References are to the pages.] SALES UNDER DECREES— continued. the cases classified, 599, note 10 ratification, certain objections to, 599-601 abatement of suit before sale, 599, and note 1 papers in a chancery case lost, 599-600 sale by parties of their interests pending suit, 600 by parties or purchasers, 600 certain objections not sustainable for parties, 600, and notes 5 and 6 certain objections not sustainable for purchasers, 600-601, and note 9 trustee cannot buy at his own sale, 601, and note 11 exceptions to ratification of sale, 601-602 bur-den of proof upon exceptant, 601 purchaser excepting must state facts, &c, 601 averments of exception to be supported by proof, 601 must be supported by preponderating proof against report of trustee, 601-602 exception that bill filed to vacate decree of sale, 601, note 1 decision of court upon exceptions conclusive, 602, note 4 objection from parties and others, 602, note 4 by persons whose rights not affected, 602, note 4 by judgment creditor of mortgagor on mortgage sale, 602, note 4 final ratification of report of sale, 602-603 no sale valid, unless confirmed, 602 until ratified, sale is executory contract, 602, 566 upon ratification, contract complete, 602 purpose of ratification, 602 equivalent to decree for payment of purchase money, when, 602-603, 615-616, and note 3 evidence of contract of sale, and is conclusive, 603 onus of proving mistake after, upon purchaser, 603, note 6 parol proof to vary trustee's report, 603, note 6 objections after final ratification, 603-604 in certain cases, sale may be set aside, 603 instances, 603-604, and note 4 ratification should in general be final, 603, note 1 after objections overruled, validity of sale cannot be further contested, 603, note 2 ownership before and after final ratification, 604-605 retroactive effect of ratification, 604 purchasers right to rents and profits after sale, 604 becomes owner upon final ratification, 604, and note 2 no right of possession until purchase money paid, 604-605 possession not unlawful with consent of trustee, 604, note 1 where loss occurs before or after ratification, 605, and note 4 1044 Index. [References are to the pages.] SALES UNDER DECREES— continued. appreciation or depreciation of property, 605 ownership of growing crops of tenant, 604, note 1 rents and taxes falling due after sale, 604, note 1 where sale set aside, 620, note 3 acquisition of title by purchaser, 605-606 legal title vests upon delivery of deed, 60s purpose of deed, 605 mere equitable title without deed, 605-606, and note 3 deed relates back to date of sale, 606 when trustee may execute deed, 606 assignee of purchaser may be substituted, 606, and note 8 substitution before or after final ratification, 606, note 11 presumption as to execution of deed, 605, note 2 recitals in trustee's deed as to proceedings, 605, note 2 payments by the purchaser, 607-608 deposit may be required, 607, and note 2 security for compliance with terms of sale, 607, 608, note 10 interest payments by purchaser, 607, and note 5 purchaser not bound to see to application of purchase-money, 607 deducting share of proceeds of sale, 607-608, and notes 8 and 9 taking bonds from purchaser, 608, and note 10, 616 purchaser may anticipate credit payments, 608, note 10 purchaser after receiving deed no longer in court, 608, note 10, 612, note 3 compliance by purchaser by giving bond, 619, note 7 to sec. S24 court's control over sale until purchase-money paid, 619, note 1 proceeds of sale, duty of trustee in respect to, 609-610 trustee rigidly held to discharge of trust, 609 parties right to know precise amount received, 609, note I liability of bondsmen for sums paid before sale, 609, note 1 failure to bring money into court when ordered, 609 presumption of payment to trustee, 609, note 2 proceeds are in custody of court, 609, note 2 court may order trustee to bring money into court, 609, and note 3, 611, note 3 trustee cannot dispose of money without order of court, 609- 610, and note 6, 650, note 1 trustee must pay taxes on property sold, 610, and note 8 dues on property sold at auction in Baltimore city, 610, and note 8 title of purchaser on reversal of decree, 610-61 1 title of purchaser in good faith not affected, 611, and notes 2 and 3 • Index. 1045 [References are to the pages.] SALES UNDER DECREES-continued. provided the court had jurisdiction, 6n on reversal or varying of decree on rehearing, 357, 612, note 5 to sec. 516 title of purchaser, collateral attack on, 612 void if total want of jurisdiction in court, 612 valid if court had jurisdiction, 612, and notes 2 and 3 incumbrancers not parties, right to proceeds of sale, 613 may prosecute liens against lands sold, 613 not bound by the proceedings, 612 lien subsequent to mortgage foreclosed, 612 lienors may be allowed to claim, 612 miscellaneous matters respecting sales, 614 resale, order for vacates previous sale, 614 purchase money refunded when sale vacated, 614 purchaser in such case responsible for use if in possession, 614 contracts of purchase may be revived after sale set aside, 614, and note 4 validity of sale depends upon facts at time of, 614 when sale reported, purchaser entitled to notice of orders, 614 mutation of realty into personalty, 614 sale to several persons rejected as entirety, 614, note 6 Proceedings against defaulting purchasers. proceedings independently of statute, 615 payment enforced in three ways, 615 against personal representatives of purchaser, 615, note 1 attachment against purchaser independently of statute, 615-616 after ratification of sale, 615 necessity of this procedure, 615, and note 1 to sec. 521 trustee cannot sue at law, when, 615, note 2 no action at law 'to enforce decree in chancery, 615, note 2 court acts at instance of any party interested, 615, note 2 order of ratification equivalent to decree for payment, 615-616 and note 3 purchaser failing to comply is in contempt, 616 hearing of merits upon order to bring money into court, 616 attachment where bond given, 616 resale at risk of purchaser, independently of statute, 616-617 court's power under equitable lien, 616, 619 no lien until sale ratified, 616-617 instances of resales not at risk of purchaser, 616-617, note 1 code provisions — attachment, 617-618 attachment, 617, and notes 1 and 2 resale at risk of purchaser, 618 the provisions, 618, and notes 1046 Index. [References are to the pages.] SALES UNDER DECREES— continued. apply only to sales by trustees under orders of court of equity, 618 where the purchaser dies, 618, and note 6 where sale is on credit, 618 petition to be served on purchaser, 618, note 2, 619 proceedings against insolvent estate of purchaser, 618, note 6 compliance by purchaser by giving bond, 619, note 7 to sec. 524 preliminary proceedings, 619-620 no order for resale until first sale ratified, 619 resale based upon court's equitable lien, 619, 616 notice to purchaser, 619, and note 2 order to show cause, 619 if sale set aside, purchaser's payment of costs, &c, 619-620 if sale ratified, resale may be ordered, 620, and note 5 court's control over sale till purchase money paid, 619, note I resale — disposition of proceeds, 620-621 payment of costs, fees, purchase money, &c, 620, 664, note 2 delinquent purchaser entitled to surplus on resale, 620, and note 3 when sale set aside, purchaser not owner, 620, note 3 nature of resale, 620, note 3 charges against, and credits to the purchaser, 621 decree in personam against married woman, 621 liable for loss at resale, 621 nature of decree in personam, 621 not unconstitutional, 621 Enforcing delivery of possession. inherent equity jurisdiction, 621-622 order for benefit of purchaser, 621-622 court's power cannot be denied, 622 writ of habere facias not authorized, 622 injunction to deliver possession, 622 against whom proceedings had, 622-623 parties to the proceedings, and their assignees, 622 not against persons not parties, 623 especially if such persons claim adversely, 623 statutory provisions, 623-624 the act of 1825, 623, and notes 1 and 3 cases at law, 624, note 4 question of title not generally involved, 624, note 4, 625 note 1 enlargement of statutory provision, 624 the act of 1864, and other acts, 624 proceedings under the statute, 624-626 in the case in which decree passed, 624-625 decision on application not definitive, 625 Index. 1047 [References are to the pages.] SALES UNDER DECREES-continued. right to immediate possession is alone determined, 625 nature of the proceeding, 625 certain defenses to the application, 625-626, notes 6 and 7 adverse claims, 625-626 question of -title, how involved, 625, and note 1, 624, note 4 validity of sale under judgment attacked, 625, note 3 where hearing on petition and answer, 626, note 6 where writ prematurely issued, 626, note 8 notice to the party in possession, 628, note 11 present statutory provisions, 626-628 the substance of the statute, 626-627, and notes heirs of deceased debtor are debtors under the statute, 626 note 2 . showing cause against application for writ, 627, and note 6 good cause must be shown, 627, note 6 by whom and when cause to be shown, 627, notes 7 and 8 various statutory provisions, 627-628, and notes writ of possession against mortgagor, 628 SCANDAL. need not be answered, 199, note 8 definition of, 228 matters not scandalous if pertinent, 228 may be stricken out, 229, note 6 stricken out at costs of party filing it, 229, and note 7 exceptions for, 229 practice on filing exceptions, 230 demurrer does not lie for, 230 expunged if exceptions sustained, 230 when exceptions taken, 230 and note 1 waiver of objection, 230 SECURITY FOR COSTS; see "rule security for costs." SEQUESTRATION. to compel appearance or answer, 151, 301, and note 2 nature of writ, 301 as a mesne pro-cess against party in contempt, 301 as a judicial writ to enforce performance of decree, 301 superseded by other remedies, 301, and note 4 may be used in proper cases, 301-302 to compel corporation to perform order of court other than payment of money, 301, note 5, 302, note 6, 335, note 6, 713-714, note 2 use of, in orphans' court proceedings, 302 used in District of Columbia, 302, note 6 SERVICE OF PROCESS; see "subpoena." 1048 Index. i [References are to the pages.] SHOWING CAUSE. orders to show cause are not final, 379- meaning of, 309-310, and note 5 in proceedings to enforce delivery of possession, 627, note 6 answer showing cause should be under oath, 310, 627, note 6 SIGNATURE. of solicitor vouches for the authority to file bill, 108 of next friend to authority to solicitor, 14, and note 4 of solicitor, to all formal papers, in, and note 1, 224, note 1 of solicitor to bill, in of solicitor to demurrer, 177, note 1 of solicitor to answer, 218, note 7 of parties to answer, 218 to papers filed in proper person, in, note 3 SLAVES. could not sue or be sued at law or in equity, 13, note 2 might file petitions for freedom, 13, note 2 could not make affidavit, 693, note 4 SOLICITORS. appointment of, to appear for infant or non-sane defendant, 18, note 1 to sec. 150 authority of, to file papers presumed, 108 signature of, to bill, 111 signature of, to demurrer, 177, note 1 all formal papers to be signed by, in, and note 1, 224, note 1 striking out of appearance by, 108, note 4 substituted service of process on in case of cross-bill, 147, note 6 fee of, on exceptions to answer, 201, note 2, 202 affidavit of, to petition for bill of review for newly discovered evidence, 366, and note 3 fee of, for drawing answer in creditors' suit not a debt of estate, 454, note 2 should not be party, 28-29 party for purposes of discovery, 30, note 9 may not in own name and on own motion appeal, 127, note 2 of non-resident, service of process on, 147, note 6 fee of, on exceptions to answer, 202, 672-673, note 2 fee when appointed to defend infants and lunatics, 672, note 2 no fee to solicitor of guardian ad litem, 19, note 5, 672, note 2 fee for solicitor of non-resident non compos, 672, note 2 see "counsel fees" see "appearance fees," agreement of, to decree by consent, 334 married woman not bound as to her separate estate by un- authorized consent of, 334 agreement of disregarded on appeal, when, &c, 447 power to grant injunctions in the court of chancery, 693, note I Index. 1049 [References are to the pages.] SPECIAL CASE STATED. ' provisions of the equity rules, 821 see equity rules, 47-49, in the appendix SPECIFIC PERFORMANCE. parties to bill for, see "parties'' cross bill in action for, 242, 783-784, note 1 exercise of extraordinary power, 765 definition, 759 jurisdiction, 759-761 is in personam, 759 defendants must be within reach of court, 759 service by publication not binding, 739-760, and note 3 to affect land in another State, 760 land in different counties, 760, note 4 absence of adequate remedy at law, 760-761, and notes 1, 3 doing complete justice, 760 defence of remedy at law, modified by statute, 761 contract providing for payment of money in case of non-per- formance, 761, note 3 injunction and specific performance, 761-762 effects of injunction restraining breach of contract, 761, and note 1 injunction as ancillary to specific performance, 761-762, 680-681 in what cases injunction may be granted, 762, and note 5 injunction when contract cannot be enforced, 762, note 1 injunction when contract affirmative, &c, 762, note 1 discretion of the court, 763-764 general statement of the rule as to discretion, 763 meaning of the rule, 763, note 1 regulated by fixed and established rules, 764, and note 1 real estate contract, if proper, enforced as of course, 764 character of the plaintiff's case, 765 plaintiff must make out a clear case, 765 must come with stronger case than if defendant, 765, and note 4 performance by plaintiff, 765-767 plaintiff must show performance by him, 765-766 vendee must aver compliance with contract, 766 tender; rule with respect to, 766, and note 4 bond to perform in place of performance, 766, note I averments — general rule as to, 766, note I nugatory acts, 766, note 2 renewal of leases, conditions precedent, 766, note 2 marriage settlements, by party in default, 766, note 2 partial performance by plaintiff, 767 compensation for injury caused by non-performance, 767 laches on the part of the plaintiff, 767 relief not granted if laches, 767 1050 Index. [References are to the pages.] SPECIFIC PERFORMANCE— continued. what may constitute, 767 amounts to abandonment of contract, 767 instances of delay in applying for relief, 767, note 2 relationship as an excuse for laches, 768, note 2 to sec. 661 time as of the essence of the contract, 768-770 general rule in equity, 768, and note 3 nature and circumstances of transaction considered, 768 non-payment of purchase money on day due, 768-769 renewal of leases for ninety-nine years, 769, note 4 may be of the essence in certain cases, 769 where there is a want of mutuality, 769 failure to perform not in every case fatal, 770 instance between landlord and tenant, 770, note 2 instance between vendor and purchaser, 770, note 2 chattels, contracts respecting, 770-772 general rule as to chattel contracts, 770 damages at law as adequate redress, 770 exceptions where legal remedy inadequate, 771 specific chattel for specific purpose, 771 sale of specific debt, 772, and note 4 instance of a contract enforced, 771, note 1 where chattel unique, 771, note 3 stock, contracts for sale of, 772, note 4, 778, note 1 contract to execute mortgage, 774, and note 7 contracts to devise, 772-773 may be enforced by conveyance, 772 statute of frauds, rigidly applied, 772 utmost certainty required, 773, and note 3 contracts to create lien, 773-774 may be enforced in certain cases, 773 lien superior to subsequent judgment, 773 subsequent creditors; purchasers without notice, 773 mortgage defectively executed, 773-774, and see 785, note 1 mortgage on personal property, 774, and note 7 certain other contracts, 774-775 hiring and service, 774 certain unenforceable and enforceable contracts, 774-775, and notes 9, 11 award, performance of, 774, note 4 building and construction, 774-775, note 5 mistake in the contract, 775-776 defendant may show mistake in the contract, 775, and note 1 plaintiff may have contract reformed and enforced, 775-776, and note 2 mistake to be clearly proved, 776 execution of contract prevented by fraud, 776-777 Index. 1051 [References are to the pages.] SPECIFIC PERFORMANCE— continued. contract may be decreed to be executed and performed, 776 execution of contract without specific performance, 777 gifts, 777-778 enforced if possession given and donee has made improve- ments, 777, and note 1 character of proof required, 777 proof may be by parol, 778 under marriage contracts, 777, note 1 settlements, 778, note 2 compensation in lieu of specific performance, 778-780 general rule respecting, 778 only upon peculiar equities, 779 in cases for the transfer of stock, 778, note 1 instances where granted, 778, notes 1, 2 where improvements are made, 779, note 1 defendant disabling himself from performing, 779, note 1 where plaintiff unable to fully perform, 779, note I, 803 under prayer for general relief, 780, and note 1 how amount determined, 780, and note 2 measure of compensation, 780 whether plaintiff, general creditor or lien creditor, 780 who may sue and be sued, 781-782 see "parties," sec. 64 capacity of parties, 781 infants, imbeciles, persons non compos mentis, 781, and note 3 married women as plaintiffs and defendants, 781-782 creditor before judgment enforcing debtor's contracts, 782 allegations, proof and decree, 782-784 bill must accurately state terms of contract, 782 where plaintiffs are strangers to the contract, 782, and note 2 disclosure of rights and interests of defendants, 782, and note 3 case alleged in bill to be distinctly made out, 783 character of proof required, 783, and note 2 proof must correspond with contract alleged, 783, and note 3 amendment to bill to meet answer, 783, note 3, 235 decree in favor of each party, as entitled, 783 in case of vendor and vendee, 784, and note 1 dismissal without prejudice, 784 cross-bill in a certain case, 783-784, note 1, 242 decree enforced by attachment, injunction, fieri facias, 784, notes 1, 2 trustee may be appointed to execute decree, 784, note 2 decree operating as conveyance, 784, note 2 miscellaneous, 785 covenants for renewal of ninety-nine year leases, 785 court administers full relief, in certain cases, 785 1052 Index. [References are to the pages.] SPECIFIC PERFORMANCE— continued. contracts defectively executed, 785, note 1, and see 773-774 recording deed inoperative for want of recording, 785, note I mortgage defectively executed, 773-774 entire contract to be enforced, 785, note 3 plaintiff may recover less than he claims, 785, note 3 requisites of an enforceable contract, 785-796 comprehensive statement of the rule, 785-786, and note I contract must be concluded and in force, 786-787, and notes 2, 3 contract must be fair, just and reasonable, 787, and note 4 fairness — at what time judged of, 787-788 fluctuation in value of property, 788 contract must be bona fide, 788, and note 3 actual fraud a complete defence, 788, and notes 1-3 contract must be certain, 789 reasonable certainty in description of property, 789, and note 3 instances of uncertainty, 790, and notes I, 4, 7 contract must be mutual, 791, and note 2 meaning of "mutuality," 791 inequality of obligation, 791-792, and note 6 where payment made on non-mutual contract, 792 where party not bound is willing to perform, 792, note 7 instances of non-mutual contracts, 792-793, note 7 mutuality in conditional contracts, 793 condition of vendor acquiring title, 793, and note 2 landlord and tenant conditional contracts, 793-794, and note 3 valuable consideration necessary, 794, and note 2 marriage a valuable consideration, 794-795 expending money on faith of contract to convey, 795 inadequacy of price, 795, and note 2 absence of undue advantage, 795 in contracts between parent and child, 795-796 legality of contract, 796, and note 1 Contracts relating to land. objections to the title, 796-801 ordinarily purchaser not required to accept defective title, 796- 797 where contract general, purchaser entitled to unincumbered legal estate in fee, 797 where vendor has only equitable title, 797, note 3 allegations of bill by vendor in certain case, 797, note 3 covenants for title may be enforced, 797, note 3 vendor setting up defect in his own title, 797, note 3 purchaser not bound to take incumbered estate, 797-798 property incumbered with covenants and restrictions, 798 covenants against incumbrances, 797, note 1 security against incumbrances, 797-798, note 2 Index. 1053 [References are to the pages.] SPECIFIC PERFORMANCE— performance. enforcement of restrictive incumbrances, 798, note 5 reasonable doubt respecting the title, 798-799 general rule as to character of doubt, 798 the rule as to reasonable doubt comparatively modern, 798, note i threat, or possibility of contest as objection, 799 reasonable anticipation of litigation, 799, and note 2 if objection based on matter of fact, 799 interests of persons not parties, not affected by decree, 799-800, 759 court does not decide rights of persons not parties, 800, note 1 reasonable chance that third person may dispute title, 800, and note 2 title by adverse possession, 800-801, and mote 4 waiver of objection to title by purchaser, 801 continuance in possession, &c, by purchaser, 801, and note I certain instances of objections to titles, 801-802, note 2 vendor's ability to convey, 802-803 when vendor should be able to convey, 802, and note 1 where contract conditional upon vendor acquiring title, 802 inability of vendor to convey precisely as agreed, 802, and notes 1, 2 in case of a substantial defect or misdescription, 802-803 where vendor's inability not fatal, 803, and note 4 miscellaneous, 804 interest chargeable against purchaser objecting to title, 804, and note 1 in case of landlord and tenant, 804 in case where possession taken, 804 costs of suit to test title, 804, and note 4 contract binding against heirs, &c, 804 unless other controlling equities have intervened, 804 trustee to execute deed may be appointed, 804-805, note 1 the statute of frauds, 805-806 the statute as a defence, 805 certain cases where the statute does not apply, 805 waiver of the statute as a defence, 805, 316, and note 7 reason of the rule as to waiver, 805, and note 2 pleading the statute upon denial or admission of contract, 806 part performance, 806-814 effect of upon parol contracts within the statute of frauds, 806 applied chiefly to contracts relative to land, 806-807 contracts not to be performed within one year, 807 doctrine peculiar to courts of equity, 807 tendency of late decisions, 807, and note 7 basis of the doctrine — the prevention of fraud, 807-808, and note 3 1054 Index. [References are to the pages.] SPECIFIC PERFORMANCE— continued. takes case entirely out of the statute of frauds, 808 plaintiff must fully establish parol contract, 808 character of proof of terms of contract, 808-809, and notes 2, 3, 4 allegations of the bill in respect to, 808, note 1 decree upon, to less extent than contract stated, 809, note 3 character of acts of part performance, 809-810 acts must refer exclusively to, and result from, the contract, 810 acts must be of substantial nature, 810 possession of land as an act of, 811 possession must be notorious, not technical, 811, and note 4 mere occupancy as an act of, 811 acts preparatory to contract, 811, note 1 improvements on land as acts of, 811, note 1 possession of land not under contract, 811, notes 2, 3 possession by tenant, continuance of holding, 812, and note 1 payment of additional rent, 812 payment alone not part performance, 812, and note 1 payment and possession under contract is, 812 marriage alone not part performance, 813, and note I marriage and further acts under the contract, 813, and notes 4,5 proof of acts of part performance must be clear, 813-814 evidence of part performance need not be in writing, 814, and note 2 STATE. suit against, 18, 76, note 4 suits by, for use of infants, next friend not necessary, 14, note 3 suits by, for use of married women, next friend not necessary, 16, note 1 certain cases where not necessary party, 29, note 2 when a formal party, 34 has no interest in injunction bonds, 696 STATUTE OF FRAUDS. see "specific performance'' as a ground of demurrer, 179 plea of, 192 must be specially pleaded, 316 waived, if not insisted upon, 316 certain sales not within, 536, 567, and note 5 STATUTE OF LIMITATIONS; see "Limitations, statute of." STOCKHOLDERS. represented by president and directors, 47, and note 2, 58-59 not necessary parties, 47 do not represent corporation, 47 in suits against directors for malfeasance, 58 Index. 1055 [References are to the pages.] SUBMISSION. of cause for decree without argument, 315, and note 8 procedure when cause submitted, 315, note 9 papers, referred to auditor and master, 315, note 9 death of party after, 315, note 8 cause must be decided as then presented, 315 SUBPOENA. what is, and how issued, 145-146 cannot be issued till papers filed, 146, and note 5 to whom issued, 146, and note 4 may be sued out separately or jointly, 146 reissue of, in Baltimore city, 146, note 6 how and by whom served, 146, and note 1, 147 service by private person, 146, note 1 how served on infant; or non compos mentis, 147, and note 3 infants secreting themselves, or evading service, 147 defendants twice returned non est, or evading service, 147, 165 voluntary appearance of adult, 147 amended bill, service of, to give notice, 147, note 6 substituted service, what is, 147, note 6 attorney of non-resident may be served with, 147, note 6 process of subpoena, when returnable, 148, and note 8 when new parties made, when returnable, 148, note 8 neglect of sheriff to return, 148, note 7 corporations, service on, 148, note 7 on amended bills, 203-204, note 7 when issued by examiner, 265, note 1 SUBPOENA DUCES TECUM. purpose and procedure, 145, note I, 283, note 4 SUBPOENA SCIRE FACIAS. use; form; how obtained, 145, note 1 mode of reviving suit abating after final decree, 256, 260 decree barred by limitations revived by, 257, note 4 SUIT. see "bill" how begun, 106-107 nature of, 106, note 1 in proper person, III, note 3 must be "suit" to authorize appearance fee, 674-675, and note 3 SUPERSEDEAS. of decrees, 335, note 2 by appeal, see "appeal bonds" SUPPLEMENTAL ANSWER. when allowed, 237, note 1, 238, note 4 office of, 238, note 3 1056 Index. [References are to the pages.] < SUPPLEMENTAL ANSWER— continued. when used instead of amended answer, 238, note 3 leave of court necessary to filing of, 238, note 3 functions of performed by cross-bill, 238, note 3 allowance of depends on object stated in petition, 239 allowance of discretionary; no appeal therefrom, 239, 387 . facts arising since filing of answer to be brought forward by bill in the nature of supplemental bill, 239, note 7 SUPPLEMENTAL BILLS. what are, 244 cannot now be used if amendment will suffice, 244-245 rule as to use of, 245 when necessary, 245, note 2 original bill and, constitute but one record, 24s, note 2 occasioned by change of parties, 245 when new party entitled to file, 24s new events occurring after filing of original bill, 246, 236 new title acquired pending suit, 246, 127, note 1 if original bill wholly defective, 246-247 when matter of defence arises after answer filed, 246, 239, note 7 leave of court necessary to filing of, 247 notice of application for, 247-248 what must state, 248 parties to, when new parties made, 248 who should answer, when new party made, 248, 204 demurrer lies to tes.t of propriety of, 248 filed after decree, 248 office of, filed after decree, 248-249 principle of decree must not be varied by, 249 omitted parties brought forward by, after decree, 249, 103 interpleader suit, bringing forward new parties, 249, note 2, 828, note bill in nature of, what is, 249-250 distinction between, bill in nature of supplemental bill, and, 250, and note 1 test as to using, bill in nature of supplemental bill, or, 250 defendant brings forward fact arising after filing of answer, by, 239, note 7 SURETIES. retaining bill to allow action on bond, 323 on appeal bonds, number of, 417-418, and note 6 on appeal bonds, sufficiency of, 418, and note 12 deceased debtors, obligation of as, 454, note 1 effect of final ratification of auditor's account of trustee, 650, note 1 Index. 1057 [References are to the pages.] TAXES. accrued after death of debtor not a debt of the estate, 474, note 2 enforcement of, on property in trustee's or receiver's hands, 569, and note 4, 727, note j to be paid by trustee on property sold, 610, and note 8 to be paid before dissolution of corporation, 748, note 1 TAXPAYER. suit by representing all, 49 TAX SALES, CONFIRMATION OF. code provisions and history, 835-836, and note 1 onus of proof to sustain tax title before statute, 836 onus of proof changed by the statute, 836 order of confirmation not conclusive, 836 duty imposed upon the court, 836-837 questions as to sale arise upon exceptions to ratification, 837 if proceedings not regular, to be set aside, 837 special and limited jurisdiction, 837 no appeal from order of court, 837 instances of exceptions to ratification, 837, note 1 costs of proceeding to confirm sale, 837, note 5 TENANT. for life as representative party, 41-42, and notes and lessees as parties, 81 TENDER. in suit for specific performance, 766, and note 4 TERMS OF COURT. in Baltimore city and the counties, 4, note 4 TESTIMONY, BILL TO PERPETUATE; see "bill to perpetuate TESTIMONY." ESTIMONY DE BENE ESSE; see "bill to take testimony de BENE ESSE." T STIMONY, THE TAKING OF. see "examiners'" see "witnesses" see "commission to take testimony'' practice in taking, regulated by equity rules, 261 > courts to prescribe rules, 261, note 2 taking of, before examiner, 262 taking of before justice of the peace, 262, note 1 upon interlocutory application, 262, note 1 when may be taken, 263 commission to take, issued by consent, 263, note 2 commission as admission that issues made up, 263, note I leave of court or judge to take, 263 petition for, and order, form of in Baltimore city, 263, note 3 67 1058 Index. [References are to the pages.] TESTIMONY, THE TAKING OF— continued. order granting leave, granted as of course, 264, note 3 omission to procure order, a mere irregularity, 264, note 3 examiners to be furnished with titling of cause, &c, 263-264 testimony without leave of court, inadmissible, 264, note 3 notice by examiner of day for taking, 264 one day's notice in Baltimore city by examiner, 264, note 5 duty of examiner as to summoning witnesses, 264-265 examiners may issue subpoenas, &c, 265, and note 4 questions of privilege, and demurrer of witnesses, 265-266, and note 4 costs when objections of witnesses reported to court, 266 examination of witnesses on voir dire as to religious belief, 266, note 4 examination of children as to capacity to testify, 266, note 4, 388 notice as to time and place of taking, particularity, 266 depositions must show on their face compliance with notice, 266, 267, note 3 depositions must be taken at time and place named, 267 waiver of compliance with commission, 267 method of taking, before examiner, 268-270 examinations conducted in presence of parties or solicitors, 268, and note 2 written interrogatories; viva voce examination, 268-269 questions and answers may be typewritten, 269 written down in language of witness, &c, 269, and note 9 same examiner takes testimony of both parties, 269 objection to questions noted by examiner, 269, objections not allowed to impede taking of proofs, 269, note 11 general question at conclusion of examination, 270, and note 12 to be taken without unnecessary delay, 270 defendant not compelled to proceed with his, till plaintiff's, in, 270 rebutting testimony need not be proceeded with till, &c, 271 rule to close taking of, 270 not to be read if taken after closing of, 270 time of taking may be enlarged in discretion of court, 270 U. S. equity rule allows three months for taking of, 270, note 1 return of, to clerk of court, 271 examiner certifies and signs return of, 271 depositions need not be returned until fees paid examiner, 271 note 2 opened by clerk and remains in court ten days, 271 time for leaving open may be waived, 271 agreement to waive time, when any of the parties are infants 271, note 6 waiver of time of leaving open, how made, 271, note 7 Index. 1059 [References are to the pages.] TESTIMONY, THE TAKING OF— continued. after expiration of ten days cause stands for hearing, 271, 313 rule as to remaining" open ten days, interlocutory proceedings, 271, 278 exceptions to, 271-273 in early practice how objections were made, &c, 271-272 competency of witnesses, on appeal, 272 admissibility of evidence, on appeal, 272 want or insufficiency of evidence, on appeal, 272 when to be filed, 272 should be filed before the hearing, and must be filed before de- cree, 272 may be taken and filed at the hearing, 272 examiner making note of exception to, 272, note 4 exceptions must be reduced to writing, 272, note 4 general exception, not proper, 272, note 4 what exceptions should specify, 272, note 4 objection to question as leading, when to be made, 273 when exceptions to the return should be made, 276, and note I taking additional testimony, 274-276 allowed at any time before final decree, 274 power to allow, when exercised, 274-275 power to allow discretionary with court, 275 no appeal from order of court thereon, 388 new evidence at any time before hearing, 275 foundation for bringing in, to be shown, 275, and note 3 what petition for leave to take new, must show, 275, note 3 negligence in making application for, 275 application to procure additional, in Baltimore city, 276, note 7 when some defendants are in default, 277-278 taking of, where some defendants do not appear or answer, 277-278 defendants in default bound by evidence, 277, note 2, 278, and note 3 taken under ex parte commission against defendants in default not evidence against other defendants, 277, note 2 taken under commission by consent, 277, note 2 taken under ex parte commission, defendant brought in after issuance, 278, note 2 answer of defendant after entry of interlocutory decree against him, 278 miscellaneous, foreign commissions, see "commission to take testimony" for interlocutory applications, 278 on second trial at law under procedendo, 280, note 1 to sec. 222 oral testimony in open court, 280 statute permitting oral testimony is mandatory, 280 1060 Index. [References are to the pages.] TESTIMONY, THE TAKING OF— continued. taken orally shall be written down and filed, &c, 280, note 1 costs of incompetent, immaterial ot irrelevant testimony, 281 of witness cut off by death from cross-examination, 281 upon allegations not made and relied upon in bill or answer, 281 bills and answer under oath, as evidence, 281 in taking bills pro confesso, 343 appearance of witness in open court to correct testimony, 388 before auditor, see "auditors and their accounts" without authority of court, before auditor, 630, note 4 TITLE. acquired after original bill filed how availed of, 236 certainty as to allegation of in bill, 117, and note 10, 797, note 3 retaining bill for trial of title at law, 322, and note I objection to, see "foreclosure of mortgages under assent to de- cree" objection to, see "sale under decrees" objection to, see "specific performance" TRANSCRIPT OF RECORD; see "Record." TRANSLATION OF FOREIGN LANGUAGE, into the English language, 312, note 5 TRUSTEE. see "sales under decrees" on death of, parties in suits against trust property, 52, note 3 as representative party, 44-47, and notes; see "parties" order directing, to apply proceeds according to auditor's ac- counts is in nature of final decree, 377 discretion of court as to selection of, 387 under decree of court, no right to appeal, 430-431, and note 1 appeal as to order affecting commissions, 431, and note 2 conventional trustees to sell property, when may appeal, 431- 432, and notes in creditor's suit, selection of, 465 to execute deed may be appointed, 784, note 2 commissions of, see "commissions" USURY. when charged in bill, plea to be accompanied, by answer, 184, and note 1 as defence must be specially pleaded, 122, 316, and note 8 may be raised upon statement of auditor's account, not by exception to ratification of sale, 549, 563 Index. 1061 [References are to the pages. 1 VACATION OF FRAUDULENT ACTS, BY NON-JUDGMENT CREDITORS. see "receivers" page 751, and note 1 to sec. 649 ge'neral rule as to right of non-judgment creditor to proceed in equity, 832, and note 1 creditor must first obtain judgment, 832 vacation of fraudulent conveyances, 832-833 exceptions to the rule, 833, note 2 statutory provision respecting, 833, and note 1 effect of the statute, 833-834 purpose' and scope of the statute, 834 to what acts the statute applies, 834, and note 3 not to act merely in contemplation, 834, and note 4 issues for jury trial, statutory provision, 834-835, 292 verdict of jury, effect of, 835 - VENDOR'S LIEN. parties in cases of, 82 bill to enforce, converted into creditor's bill, 459, note 5 VERBAL ORDER. to clerk in respect to appeal, 444, and notes 5, 7 VOIR DIRE. examination of witnesses on, as to religious belief, 266, note 4 VOLUNTARY ASSOCIATION. officers of, as parties by representation, 50 VOUCHERS. proof of vouchers submitted to auditor, 639, note 3 filing, of claims by creditors, 462, 467 in creditors' bill, matter not apparent upon face of introduced by petition, 467, note 2 WAIVER. of objections for impertinence or scandal, 230 of compliance with directions of commission to take testimony, 267 at hearing of cause, steps not insisted upon are waived, 317 of statute of frauds, 316, 80s, and note 1 of objection to vendor's title, 801, and note 1 WITNESSES. see "examiners," "testimony— the taking of" competency or privilege of, not to be decided by examiner, 262-263 examination of, de bene esse, 263, note 1, 816 examination of, for perpetuation of testimony, 263, note 1, 816 examiner issues subpoenas to, 264 persons refusing to obey subpoenas, 265 attendance of before examiner and duty to testify enforced by attachment, 26s \ 1062 Index. [Eeferences are to the pages.] WITNESSES— CONTINUED. fee of, before examiners, 265, note 1 attendance and testimony of before justice of the peace, 265, note 1 objections to questions before examiner by, 265-266, and note 4 demurrer by witness, 266, note 4 voir dire, examination of, on, as to religious belief, 266, note 4 children's capacity to testify, examination to ascertain, 266, note 4 allowing children to testify, discretionary with court, 388 mode of examining before examiner, 268 to be examined in presence of parties or their solicitors, 268, and note 2 examination of by written interrogatories, or viva voce, 268 signature of, to testimony taken before examiner, 269, and note 9 question of competency of on appeal, 272 recall and re-examination of, leave of court, 273 court will permit recall of, when, 273 testimony taken on recall of, without leave, 273 granting of leave to recall, discretionary, 273-274, 388 may not be re-examined unless, &c, 274 leave to take additional does not authorize re-examination, 274 appearance of in open court to correct testimony, 274 testimony of, dying before cross-examination, 281 cross-examination of, not waiver of incompetency, 281 statements under cross-interrogatory, objection to, 281 cross-examination of plaintiff's witnesses after decree pro con- fesso, 343 order allowing examination of defendant, not final, 380 objection to competency of, not reviewable on appeal, unless, &c, 403 exception to competency, 411 examination without notice, objection to, 404 examination, without order of court, when objected to, 404 The End.