therefore prayed, that the bank might be ordered to produce either the original books, writings, and papers, or copies of such parts of them, certified by a justice of the peace, as contain evidence pertinent to the issue or relative to the matters in dispute between the parties.
11th October, 1830.-BLAND, Chancellor.-It is required and Decreed, that the President, Directors and Company of the Farmers' Bank of Maryland, on or before the first day of the next term of Anne Arundel County Court, produce, on oath, by the cashier of the said institution, either the original books, writings, or papers, or copies thereof, certified by a justice of the peace, as prayed; provided, that a copy of this order, together with a copy of the said petition, be served on the president or cashier of the said institution on or before the 15th instant; and provided also, that any cause shewn against the execution of this decree may be heard on the 21st instant.
The bank, by its answer, filed on the 12th of October, 1830, shewed cause and insisted, that, before it could be required to produce their books and papers as ordered, the petitioner should specify the particular extract, or writings, or paper which he supposes would be pertinent to the issue in the said cases, without which it would be impossible for it to comply with the order; and it alleged, that it was not aware of any paper being in its possession. which would be of service to the petitioner in defending the said suits; or indeed of the defence which he intended to make.
23d October, 1830.-BLAND, Chancellor.-This case standing ready for hearing, and having been submitted by the plaintiff on the petition and answer alone, the proceedings were read and considered.
This is a proceeding under the special provisions of the act of assembly, which authorizes this court to require the production of books and papers relative to the matter in issue on a bill instituted in this court, or on the trial of any action at law. (a) In all such cases it should appear, that the applicant has an interest in the document for that special purpose; (b) and the petition should, with Some reasonable degree of certainty, designate the books and apers wanted, if practicable, by their marks, number and names; and also should specify the facts expected to be proved by them at
(a) 1798, ch. 84; McMechen v. McLaughlin, 4 H. & McH. 166.—(b) Wigram on Discovery, 199; Calvert on Parties, 10.
the trial in the court of common law. This is a proceeding which can only be regarded as one of the modes whereby a party may obtain testimony to sustain his case; and therefore, as on all similar applications, the granting of which may be attended with delay, where the propriety of granting it does not sufficiently appear from the nature of the case; or the documentary evidence, called for, is not described in the proceedings of the suit in which the application is made, the petition should be at least as specially descriptive of the evidence and proof of facts, expected to be obtained from the books and papers required, as in an affidavit, stating the nature and materiality of the proof expected to be obtained from an absent witness, without whose testimony, a party alleges, that he cannot safely go to trial, and, therefore moves for a continuance of his case in a court of common law. The cases are so strikingly analogous, that the rules and principles, with few exceptions, applicable to one class of cases, may be well applied to the other. (c) In this instance, the petition is entirely too indefinite and general.
Whereupon, it is Decreed, that, the cause shewn being deemed sufficient, the decree of the 11th instant be rescinded; and the petition be dismissed with costs to be taxed by the register.
(c) 1 Vern. 334; Jessup v. Duport, Barnar. 192; Steward v. The East India Company, 9 Mod. 387; Smith v. Northumberland, 1 Cox, 363; Burton v. Neville, 2 Cox, 242; Oldham v. Carleton, 4 Bro. C. C. 88; Rougemont v. The Royal Exchange, &c. 7 Ves. 304; The Princess of Wales v. Liverpool, 1 Swan. 119; Jones v. Lewis, 1 Cond. Cha. Rep. 438; Mendizabel v. Machado, 1 Cond. Cha. Rep. 553.
A decree to account with special direc- tions.-Cox v. Callahan, 51; Ham- mond v. Hammond, 309.
A commission to state accounts, ordered with special directions.-Sloss v. Mcll- vane, 73.
Decree that tenants in common of a ferry, account for its profits.-Norwood v. Norwood, 477.
ACTS OF ASSEMBLY. No evidence can be admitted to explain the meaning of an act of the legisla- ture.-Binney's case, 150, 152. Private acts regarded as contracts bind- ing on the parties who apply for them,
As to private acts, some evidence may, under some circumstances, be admit- ted as to their construction, 151, and note.
The meaning of an act of assembly may be illustrated by reference to the sub- ject spoken of, 154.
A private act, giving the Chancellor au- thority to act, executed on an ex parte petition.-Campbell's case, 215. Private acts, the mode of obtaining them, their nature, and the cases to which they may be applied, 226, 234, 237. A private act considered as a conveyance binding only on the parties to it; and may be set aside on the ground of fraud, 229, 233.
No fact can be assumed by the legislature to the prejudice of the rights of an individual, 229.-Waring v. Waring, 676.
An act of assembly may be declared void, on the ground of its absurdity, apart from any constitutional objection.- Campbell's case, 231.
A marriage originally valid between then living parties, although a contract, can only be annulled by the general assem- bly, 235.
An act giving authority to mortgage the real estate of a deceased person for the payment of his debts, may bind his heirs or devisees who applied for it, but cannot affect the rights of his cre- The acts in relation to proceedings against ditors, 237. non-resident, absconding, or contuma- cious defendants, considered.-Buck- ingham v. Peddicord, 447.
The nature of alimony, and the cases in which it will be allowed.-Helms v. Franciscus, 565; Macnamara's case, 566; Lynthicumb's case, 568; Scott's case, 568; Govane's case, 570.
The exceptions to an answer heard and sustained by the Chancellor, and the defendant ordered to put in a better answer.-Parker v. Mackall, 63. A writing which purports to be the answer of several, but is not sworn to by all of them, may be taken off the file; or considered as the answer of him only, who has sworn to it.-Bin- ney's case, 109.
A defendant may sufficiently answer by adopting the answer of his co-defen- dant, 110.
Upon an answer of an infant or lunatic, in a creditor's suit; admitting or not denying the facts stated in the bill, a decree for a sale may be at once ob- tained.-Campbell's case, 225; Ham- mond v. Hammond, 352; Chamberlain v. Brown, 221; Boucher v. Bradford, 222.
An answer to the same facts over-rules
the plea.-The Bank v. Dugan, 257. If the plaintiff sets the case for hearing on bill and answer, or moves thereon for an order to bring money into court, he admits all the facts set forth in the answer.-Contee v. Dawson, 267. The answer of a non-resident defendant is a judicial record of this state, and must be authenticated as such, accord- ingly, 282.
An answer may, by consent, be received without oath, and will be allowed to have full effect, as regards co-defen- dants, 285.
An answer on affirmation, before the re- volution.-Gardner v. Dick, 277. An insufficient answer is as no answer; and therefore, upon such default, the bill may be taken pro confesso, and a final decree passed.-Buckingham v. Peddicord, 447.
A plaintiff not allowed to file new excep-
tions, but must have the new answer put to the test of those first filed, 459. A defendant permitted by a supplemen- tal answer, to explain equivocal ex- pressions, leaving the first answer to stand.-Murdock's case, 463.
A decree of the Court of Appeals sent to the Court of Chancery to be executed, cannot be there revised or modified in any way whatever.-Crapster v. Griffith, 23.
Where there is a reasonable doubt, in a caveat case, patents are allowed, so as in effect, to give the benefit of an ap- peal.-The Rail Road v. Hoye, 263. Where the Court of Appeals remand the case, or leaves any thing to be done by the Chancellor, the case should be brought before the Chancellor by peti- tion, with a copy of the decree of the Court of Appeals.-Coutee v. Dawson, 305; Tyson v. Hollingsworth, 330. An appeal bond, on the decree being affirmed, becomes thereby an addi- tional security for the debt.-Andrews v. Scotton, 669.
No direction in a will, nor any agreement to refer to arbitration, can oust the courts of their jurisdiction.-Contee v. Dawson, 275.
Upon an award, returned under an order referring the case to arbitration, there may be a decree, 276.
Arbitration or compromise, recommended by the Chancellor.-Norwood v. Nor- wood, 478, 484.
This court never compels the performance of an award, unless made on a sub- mission in court, 479.
A party may be arrested any where, and brought before the court under an at- tachment.-Crapster v. Griffith, 15. When an attachment is in the nature of mesne process, the sheriff may take bail for the party's appearance; and on a return cepi, he may be ordered to bring in the body; or he may sue on the bail bond.-Binney's case, 101; Deakin's case, 408.
It is in most cases, better to decide on the motion to dissolve the injunction before an attachment for a breach of it, is disposed of, 102.
A person may be ordered to remove an erection, which he has made in breach of an injunction, as a part of the pun- ishment under an attachment, 102. The mode of obtaining and proceeding upon an attachment for a breach of an injunction. Murdock's case, 486. Pragmatic trespassers, pending an in- junction, may be made to remove erections made by them on the pro- perty in controversy, 487.
A party taken under an attachment to enforce the payment of money, may be discharged by producing a release under the insolvent law.-Andrews v. Scotton, 663.
The auditor may be ordered to proceed to state the account immediately, un- less prevented by particular circum- stances.-Crapster v. Griffith, 8. A case may, on good cause shewn by affidavit, be remanded to the auditor, with leave to take further proof, 21. Where the case set forth in the bill, is such as to entitle the plaintiff to relief, the court may have further inquiries made by the auditor, so as to adapt the relief to the peculiar nature of the case. Townshend v. Duncan, 45; Tilly v. Tilly, 444; Addison v. Bowie, 611; Norwood v. Norwood, 477, 482. The office, power, and duty of a master in Chancery, in England, and of the auditor of this court.-Townshend v. Duncan, 45.
Auditor's fees under the provincial go- vernment, 61, note.
Report under a decretal order to account. Parker v. Mackall, 65.
An exceptant ordered to pay a fine, for the delay, on over-ruling his exceptions to the auditor's report.-Woodward v. Chapman, 71.
A commission to account with special directions.-Sloss v. Mcllvane, 73. An order directing certain persons to state an account.-Cheseldine v. Gor- don, $1.
A trustee having the profits of the estate in his hands, ordered to pay the audi- tor's fees. Winder v. Diffenderffer,
A witness or party, ordered to account, may be summoned, and compelled to give evidence before the auditor.- Hammond v. Hammond, 310. Books and papers ordered to be produced to, and lodged with the auditor.-Nor- wood v. Norwood, 477.
In a creditor's suit, the auditor's report may be at once confirmed, as to all
claims not objected to.-Watkins v. An appeal bond, on the decree being Worthington, 515. affirmed, becomes thereby an additional security for the debt.--Andrews v. Scotton, 669.
That clause in the charter of the Far- mers' Bank of Maryland, which de- clares, that debts due by a stockholder must be paid before a transfer, gives to the bank a mortgage or pledge.- The Farmers' Bank of Maryland's case, 394.
The mortgagee of bank stock, may sell without suit, 397.
A decree that such stock be sold, and that it be transferred by the trustee to the purchaser, 398.
Although as to their property, bastards have no relations who can take by de- scent or distribution; yet, for moral purposes, their consanguine relations are regarded.-Helms v. Franciscus, 582.
Bastards may inherit, or take as heirs or next of kin from their mother, 582. A man cannot be bastardized after the death of his parents, so as to deprive him of his then legitimate capacity.— Campbell's case, 236.
A plaintiff must state in his bill, such facts as are necessary to entitle him to relief; and also shew why he may ask that relief of a court of equity.-Town- shend v. Duncan, 45.
Where an infant takes as devisee, it is not necessary to alledge in the bill that he received the rents and profits, in order to charge him; because it is the duty of his guardian to take care of his estate, 45.
Several infants may join in the same bill for an account of the rents and profits of their estate.- Woodward v. Chap- man, 68.
The bill assumes two propositions; first, that the subject is within the jurisdic- tion of the court; and second, that all parties entitled to relief, or against whom it may be granted, are before the court; a defect in these particulars may be shewn at any time.-Binney's case, 104.
Bonds taken by a trustee under a decree, may be ordered to be assigned to those who are entitled to so much of the pro- ceeds.-Ex parte Boone, 321; McMul- lin v. Burris, 357.
A bond taken by a creditor of an heir, will not operate as a relinquishment of such creditor's preference, as against the estate descended.-Hindman v. Clayton, 342.
Water gushing from the sides of a canal, because of its improper structure, no evidence of its surplus water.-Bin- ney's case, 138.
Canal stock considered as real estate, and although declared to be person- alty, must be governed by the law of the state, like the land on which it is founded, 146.
The termination of a canal, to be ascer- tained by reference to its nature and object, 155.
Canal navigation, as distinguished from improved river navigation, 158. The different kinds of canals in reference to their objects, 159.
Canals intended to contribute to the ma- rine commerce of the nation, must ter- minate in a port, 162, 165.
Where the legal capacities of parties as charged, are different, such capacities must be considered as if they were dif ferent persons.-Binney's case, 108; Tilly v. Tilly, 445.
The several kinds of personal incapacity to contract.-Corrie's case, 490.
In caveat cases, there being no appeal, it is usual, where there is a reasonable doubt, to let the patent go, so as thereby in effect, to give the benefit of an ap peal.-The Rail Road v. Hoye, 263.
The commissions allowed to a trustee, not to be lessened on account of that for which he had been charged with compound interest.-Winder v. Diffen- derffer, 207.
As the commissions allowed to an execu- tor or administrator, are intended to cover expenses, he cannot be allowed full commissions, and a fee to lawyers also.-Tyson v. Hollingsworth, 332. A proportion of interest given on the commissions allowed to the trustee who made the sale, 333; Brown v. Wallace, 590, 591. Commissions allowed by the Orphans Court, in cases properly before it, can- not be reversed by this court.-Jones v. Stockett, 416. Commissions adjusted and allowed, as between a former and a present trus- tee. Andrews v. Scotton, 672.
The sovereignty being in the people, our
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