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There is no controversy about the facts in of shall be capable of inheriting from their the case. It was tried in the Circuit Court mother and from each other, "in like manner upon a case stated; and has been elaborately as if born in lawful wedlock,” imply, that argued here, and many authorities cited to tnose children only were intended to be proshow that the court, in construing a statute, vided for whose parents were capable of con. may restrict the literal meaning of the words tracting a lawful marriage with each other. used in order to effectuate the intention of The same argument has also been urged upon of Legislature. The plaintiff in error con- the proviso, which declares that nothing in the tends that in passing the act of Assembly law shall be construed “to change the law reabove mentioned, the Legislature never con specting illegitimate persons whose parents templated a case like the present; and never marry after the birth of such persons, and who intended to give the right of inheritance to are by them acknowledged agreeably to the the children of an intercourse so deeply crimi. seventh section of the Act of Assembly, passed

at December session, 1820, ch. 191." It is undoubtedly the duty of the court to We do not perceive the force of this argu. ascertain the meaning of the Legislature, ment. It is admitted that the act of Assembly from the words used in the statute, and the now in question must be taken in connection subject matter to which it relates; and to with the previous laws of Maryland regulating restrain its operation within narrower limits the descent of real estate, and the distribution than its words import, if the court are satis- of personal property; for this law forms a part fied that the literal meaning of its language of the entire system of legislation on these sub would extend to cases which the Legislature jects. But the expressions referred to in the never designed to embrace in it.

enacting clause, so far from implying that the In the case before us, the words are general, parents may marry, presupposes that they and include all persons who come within the never will marry; and provides for the children description of illegitimate children. Accord on that account. The expressions are evidenting to the principles of the common law, an ly used merely to denote the shares and proillegitimate child is filius nullius, and can have portions in which such children are to take; no father known to the law. And when the and the reference for the rule is made to chil. Legislature speak, in general terms, of children born in wedlock, in order to save the ne. dren of that description, without making any cessity of introducing into this law, a table exceptions, we are bound to suppose they de- of descents as to real property, and of dissign to include the whole class. And, as il-tribution as to personal. legitimate children, in a question as to the in In relation to the proviso, it is proper to reheritance or distribution of property, can have mark that the rights of primogeniture were no father whom the law will acknowledge as abolished in Maryland, by the Act of 1786, ch. such; how can we, in a controversy like this, 45. There was a provision in this law declar. inquire who was the father of these children, ing that illegitimate children whose parents in order to determine upon their right to the afterwards married, and acknowledged them, property?

should be thereby legitimated, and made capa. The expediency and moral tendency of this ble of taking and inheriting property as if new law of inheritance is a question for the born in lawful wedlock. The Act of 1820 emLegislature of Maryland, and not for this court. bodied the original act to direct descents, with It seems to have been supposed by the Legis- its various supplements, into one law; and prolature that as there could be no doubt of the vided for some laws of descents which had berelation which the mother bears towards her fore been omitted. This act of Assembly, of illegitimate children, the reasons of policy course, contained the clause in favor of illegitiwhich must always preclude such children mate children whose parents should afterwards from claiming the inheritance of any one, upon marry, which had been introduced into the Act the ground that he was their father, do not ap- of 1786, and which had always been the law ply to the property of the mother, or the prop- of the State, from the time that act went into erty of each other. To this extent, therefore, operation. And the proviso in the act of As. the right to inherit is given by this act of As. sembly now in question, was introduced mani. sembly. And it would appear to have been festly from the apprehension that the general given upon the principle that it is unjust to expressions of the enacting clause of the law punish the offspring for the crime of the par- might be held to reach those whose parents ents. The right of the children, therefore, is afterwards *married, and deprived them (*200 not made to depend upon the degree of guilt of the greater rights of inheritance which be. of which they were the offspring. All illegiti. longed to them under the previous acts of As. 199*] mate children are the fruits of crime; sembly. The proviso, like the expressions in differing, indeed, greatly in its degree of enor the enacting clause, shows that the Legislature mity. And the Legislature, if it had seen prop were not looking to children whose parents or to do so, might undoubtedly have made the would probably marry, but to children whose right to the inheritance to depend upon the parents never would marry; and they make character of the offense committed by the no distinction between the issue of those who parents. But they have used no language could not, and of those who would not become showing any such design. On the contrary, lawfully joined in wedlock. If from any cause they appear to have looked at the unoffending whatever the parents were never married, the character of the children, rather than at the children were illegitimate; and all illegitimate criminal conduct of the parents, of whom they children, under this act of the Assembly, may were the offspring.

inherit from their mother and from each other. It hias been said that the expressions in the It follows, that the tract of land called “Grassy enacting clause of this act of Assembly, which Cabin," upon the death of John Joseph Sloan, declares that the illegitimate children spoken' descended to his brothers and sister, before

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mentioned, and the plaintiff is not entitled to Samuel Sprigg, and a judgment obtained recover.

against him for the amount of the obligation. The judgment of the Circuit Court is there- The object of the writ of error was to have fore affirmed.

the judgment of the Circuit Court reversed, on This cause came on to be heard on the tran- the ground that the indulgence for the pay. script of the record from the Circuit Court of ment of the debt had been given to Peter Yar. the United States for the District of Maryland, nall & Company without the privity or knowl. and was argued by counsel; on consideration edge of the plaintiff in error; that he was whereof, it is now here ordered and adjudged only a surety in the obligation, which was, by this court that the judgment of the said he alleged, known to the bank; and he was disCircuit Court in this cause be, and the same is charged from the liability *for the debt [*202 bereby affirmed with costs.

to the bank. These allegations were denied by the Bank of Mount Pleasant.

The court in that case held that all were 201] *SAMUEL SPRIGG, Appellant, principals in the obligation, and were equally

and fully bound to the payment of the debt; THE BANK OF MOUNT PLEASANT, Ap- and the continuation of the loan on the bond, pellee.

whether the same was to one or all the obligors Estoppels in equity-parol evidence-principal did not impair the claim of the bank to reand surety.

cover from all and each of them. The judg. The principles decided in the case of Sprigg v.

ment of the Circuit Court of Ohio was affirmed. the Bank of Mount Pleasant, reported in 10 Peters, 10 Peters, 257. 257, examined and aflirmed.

In December, 1838, the appellant in this case, It is equally well settled in courts of equity, as well as in courts of law, as a rule of evidence that Samuel Sprigg, filed a bill in the Circuit Court parol evidence is inadmissible to contradict, or sub- of Ohio, praying to have the judgment which stantially vary the legal import of a written agree: had been affirmed in the Supreme Court, perment. ples of reason and policy, as well as authority. petually enjoined; on the ground that all the The case of Hunt v. Rousmanler, 8 Wheat. 211, parties to the bond held by the bank, except cited.

Peter Yarnall & Company, were sureties for Extending the time of payment of a bond, and a mere delay in enforcing it, will not discharge a

the loan made on the bond; and that the bank, surety ; unless some agreement has been made in on the maturity of the bond, having re-disJurlous to the interest of the surety.

counted it from time to time, at the request of It is a sound and well-settled principle of law that sureties are not to be made liable beyond their Yarnall & Company, without the consent of contract; and any agreement with the creditor, the sureties, they, the complainant being one, which parles essentially the terms of the contract,

were discharged. without the assent of the surety, will discharge him trom responsibility: But this principle cannot ap

The Circuit Court, after the testimony of ply where the surety has by his own act exchanged many witnesses had been taken, and a full his character of surety for that of principal; and hearing, refused the injunction; and ordered to his character of surety, in violation of his own the bill to be dismissed: and from this decree express contract.

the complainant prosecuted this appeal. Courts of equity will permit Independent agree. ments which go to show a deed on its face absolute, his case is made out as stated in the bill, and

The counsel for the appellant contended that was intended only as a mortgage, to be set up against the express terms of the deed, only on the referred the court to the depositions, and parground of fraud. Considering It a fraudulent at- ticularly to the letters of Yarnall to the bank, tempt in the mortgagee, contrary to his own ex and the account of the bank with Yarnall & press agreement, to convert a mortgage into an absolute deed. And it is equally a fraud on the Company, taken from the bank books. He part of a debtor, to attempt to convert his contract contended that there is no estoppel in equity, as principal, Into that of a surety only.

especially as a rule of evidence, though there N appeal from the Circuit Court of the may be some cases in its popular sense, as a

broad rule of right. This case was brought before the court at He contended that though the sureties made January Term, 1836, on a writ of error, prose themselves principals to pay in sixty days, yet cuted by the present appellant, seeking to re- they are not principals without their consent, verse the judgment of the Circuit Court in an as long as the bank might choose to renew the action instituted against him on a joint and loan. several bond, under seal, made by him and He contended, that if he has made & case others, to the Bank of Mount Pleasant, for the which would entitle him to relief, supposing payment of a sum of money stated in the bond, the words "as principals” were not in the oblito the bank, upon which obligation the bank gation, that then he is entitled to the relief he had loaned the sum of twenty-one hundred seeks, notwithstanding, the insertion of these dollars, and had paid the same to Peter Yarnall words, “as principals.” He contended that & Company, one of the co-joint, and several the existence of the words “as principals,” obligors. The bank, after the loan, had con. in the bond, does not deprive him of that equity tinued to renew it for some years; the discount which the like conduct of the bank would give and interest on the same having been paid to him in the common case of a joint and several the bank every sixty days; until, when Peter obligation. The plaintiff also contended, that Yarnall & Company, having been insolvent, to so give time and enter into new agreements, suit was brought on the obligation, against without the surety's assent, is, though none

Notr.-As to oral evidence as applicable to writ. may have been intended, a fraud upon him, ten contracts, and when admissible in regard to, not withstanding the insertion of the words "as see notes to 10 L. ed. U. 8. 72; 35 L. ed. U. S principals," when the bank knew that the dis860; 17 L.R.A. 270. When variation of contract discharges surety,

count was for the sole benefit of Yarnall de see note to 6 L. ed. U. S. 190.

Company. 10 L. ed.

O unibedastate for the District

of Ohio.

He further insisted that the insertion of the cuit Court of the United States for the District words "as principals," when the bank knew of Ohio. The appellant filed his bill on the the true relations of the parties, did not give *equity side of the court for an injunc. (*204 the bank the right to renew the loan, to make tion to enjoin all further proceedings on a judg. new agreements, or to give further day of payment recovered against him by the appellees, ment at its pleasure, without the assent of the on the law side of the court. The judgment sureties. That if the defendants intended to was founded upon the same single bill now in 203*] gain such a power or advantage, fair question, and is as follows: dealing required them to ask or demand it from “$2,100: Know all men by these presents, the sureties in a plain way, as by a direct in. We, Peter Yarnall & Co., Samuel Sprigg, Richsertion of such a power in the obligation: a ard Simms, Alexander Mitchell, and Z. Jacobs, practice which this same bank has long since as principals, are jointly and severally held adopted. And that the decree of the court be- and firmly bound to the President, Directors low ought to be reversed, and one entered per- and Company of the Bank of Mount Pleaspetuating the injunction, with costs.

ant, for the use of the Bank of Mount Pleasant, The counsel for the appellee contended that in the just and full sum of twenty-one hundred the appellant, having acknowledged himself in dollars, lawful money of the United States, to the bond to be a principal debtor, is estopped the payment of which said sum, well and truly from alleging that he is only a surety, as be- to be made, to the said President, Directors and tween him and the appellee. Also, that the Company, for the use aforesaid, within sixty testimony excepted to is entirely inadmissible, days from the date hereof, we jointly and so far as it is sought by the same to contradict, severally bind ourselves, our heirs, etc., firmly etc., the bond; there being no allegation in by these presents, signed with our hands and the bill, or proof that there was any fraud, sealed with our seals, this twentieth day of surprise, or mistake, in the making or execut- February, A. D. 1826. ing the same. Also, that the appellant, upon

"Peter Yarnall & Co., (seal.) his own showing, admitting all in his bill stated

“Sam. Sprigg,

(seal.] to be true, is not entitled to the relief prayed

"Richd. Simms, (seal.] for. And that, as the appellant was accus

“Alex. Mitchell, (seal.) tomed to transact business with the bank, and

“Z. Jacobs,

(seal.] as the payment of the bond was deferred ac. "Signed and delivered in presence of” cording to her usages, he is bound by those usages; such usages, under such circumstances, The judgment at law came before this court forming a part of the bond or contract. on a writ of error, and is reported in 10 Peters,

Also, that the appellant has legally and 257. There were in that case various pleas inequitably waived all his rights as surety, if he terposed, setting forth substantially that this were such, by acknowledging himself to be a bill was executed by the obligors, to be disprincipal debtor, and so contracting with the counted at the bank; and that the defendant, bank; and has thereby at least authorized the Samuel Sprigg, was surety only for Peter bank to treat him according to the character Yarnall & Company, who had executed the voluntarily assumed by him, until such time as bill with him; and that the bank had, by rehe might give notice that he was but a surety, newing or continuing the discount, after the and required the bank to prosecute the collec- time first limited for the payment of the same, tion of the bond. And that the court ought discharged the sureties. not to permit the appellant to disclaim the The pleadings in the suit were very volumin. character of a principal debtor, and thereby ous, and terminated in demurrers. The judg. violate his contract and good faith, and thus ment of the Circuit Court was affirmed in this perpetrate a fraud upon the appellee. And that court; and the decision turned upon the point the appellant has failed, even if the testimony that the defendant and all the other obligors is admissible, to sustain by proof the material had, by the express terms of the obligation, allegations of his bill.

bound themselves as principals, and were there. The appellee also contended that the bank is by estopped from setting themselves up as entitled to a decree, and that decree should in- sureties for Yarnall & Company, and claiining clude, if the injunction in this case should be to be discharged by reason of the extended dissolved, damages, according to the statutes of credit given to Yarnall & Company: and the Ohio, which may be recognized as rules, etc., present bill was filed on the equity side of the by this court; and which required the courts court, and relying substantially on the same of that State, on the dissolution of an injunc ground for relief against that judgment. The tion, to stay the collection of money, to render bill states that Peter Yarnall and Samuel a decree for ten per cent. damages on the Mitchell were doing business as partners, under amount due, in favor of the defendants: and if the firm of Peter Yarnall & Company; and that an appeal should be taken to a superior court, the appellees were a banking company, doing and the injunction there dissolved, that court business as a bank in the town of Mount Pleasis required to render a decree for fifteen per ant. That about the 20th of February, in the cent. damages.

year 1826, the said Peter Yarnall & Company The case was submitted to the court on borrowed from the bank two thousand one printed arguments by Mr. Jacobs and Mr. Web-hundred dollars, and the single bill now in ster for the appellant, and by Mr. Alexander question was executed and discounted at the for the appellee.

bank in the usual course of business. (* 205

That at the time of the loan, the bank knew Mr. Justice Thompson delivered the opinion that Peter Yarnall & Company were the prinof the court:

cipals, and so received, and accepted, and treat. This case comes up on appeal from the Cir. Ted them; and that the other obligors were their

sureties, notwithstanding the form of the obli- | principal debtor to the defendants, he is es gation. That when the said obligation became topped from now alleging that he is only a due, to wit, on the 21st of April, 1826, the surety. They deny that they ever gave the bank, on receiving twenty-two dollars and for said Yarnall & Company the further credit and ty cents, paid by Peter Yarnall & Company, for time of payment as claimed in the bill, or oththe discount for sixty days, without the knowl-erwise. They admit they used great lenity to edge or consent of the sureties, gave a further wards the obligors, in not requiring payment credit and time of payment for sixty days. promptly when due; but aver that they did so, That the bank, at each consecutive day of dis- because they had confidence in the honesty, incount and payment of interest in advance, ex tegrity, and solvency of the obligors, and contended the payment of said bill in like manner, sidering them all as principal debtors. They until September or October, 1828; until after admit the proceedings at law as set forth in the failure and insolvency of the said Peter the bill; and deny ali manner of unlawful conYarnall & Company, which happened about federacy; and claim the same benefit of this that time. That between the time the said defense as though they had demurred to the obligation first became due, and the day when bill. To this answer there is a general replicaYarnall & Company failed, the bank, or the tion; and the cause having been heard upon the said appellant and his co-sureties, could have bill, answer, replication, exhibits, and testi. collected and realized the money secured by mony, it was adjudged and decreed that the the said obligation. And that if the bank had complainant in the court below was not entinot renewed said loan, and given new and fur- tled to the relief prayed in the bill. Whereupther time of payment, the obligation could have on, the injunction which had been allowed was been collected from the said Peter Yarnall & dissolved, and the bill dismissed. Company. And the bill then charges that the When this case was before the court on the bank, contriving and intending to impose upon writ of error, the effect and operation of the the appellant a loss which has occurred to him words, “as principals,” contained in the single in consequence of a confidence and bargain made bill discounted at the bank, were fully considby themselves with the said Yarnall & Com. ered; and it was decided that they operated as pany, and in fraud of the said appellant and an estoppel, and precluded the defendants from his co-sureties; if at the time of bestowing going into evidence to show that he was only such confidence and making such bargains, it surety in the single bill. And unless it shall was intended to hold the appellant and his co- be found that a different principle prevails in sureties liable, and more particularly in fraud a court of equity, the same result must follow of the appellant and his co-sureties if such upon the present appeal. confidence and contract with the said Yarnall It is said, however, on the part of the appel& Company was, at the time of making the lant, that there are no technical estoppels in a same, a mere personal confidence and contract court of equity. This may be admitted, but it with the said Yarnall & Company. The bill will not affect the present question. For it is then sets out the proceedings at law, upon equally well settled, as a rule of evidence, in which a judgment has been recovered; and courts of equity as well as in courts of law, praving a perpetual injunction against further that parol evidence is inadmissible to contraproceedings upon the judgment and execution. dict or substantially vary the legal import of a

The bank in their answer admit the discount written agreement. And this rule is founded of the single bill; and allege that it was so dis- on the soundest principles of reason and policy, counted at the request of the obligors, and the as well as on authority. This doctrine is fully procee is paid to Alexander Mitchel, one of recognized by this court in the case of Hunt v. the obligors. They positively deny having any i Rousmanier, 8 Wheat. 211. The court say: It knowledge of any transaction in relation to is a general rule that an agreement in writing, said obligation, until it was presented to them or an instrument carrying an agreement into for discount: or that they had any knowledge execution, shall not be varied by parol testi. of the relation in which said obligors stood to mony, stating conversations or circumstances one another; or that they knew that the pro- anterior to the written instrument; that this ceeds of the obligation was obtained for the ex. rule is recognized in courts of equity, as well clusive benefit of the said Peter Yarnall & as in courts of law. But courts of equity Company; or that they were the principal debt-grant relief, in cases of fraud and mistake tors in said obligations. They deny that they which cannot be obtained in courts of law. received, accepted, and treated them as the In such cases, a court of equity may carry the principal debtors, and they aver that the ap- intention of the parties into execution, where pellant and all the other obligors were prin- the written agreement fails to express that in. cipal debtors, and 80 contracted with and tention. This authority is so directly in point, bound themselves to the bank; as will appear that it cannot be necessary to refer to any by reference to the said single bill. And they other. But the principle will be found in acfurther aver that it was on the faith of this cordance with the highest authority, both in agreement alone that they discounted the ob- this country "and in the English Chan. (*207 ligation: and that, had not the obligors con- cery. 1 Johns. C. R. 429; 6 Vesey, 328, and notes. tracted and bound themselves as principals, let The bill does not charge that the words "as 206*] the relations *among themselves be principals” were inserted in the obligation by what it might, they would not have discounted mistake, or under any misapprehension, on the the single bill: and that this agreement was part of the appellant, of their import and efmade with full knowledge and fair understand- fect. But, on the contrary, the bill states that ing of the fact, and of the purport of the the loan was made by the bank to Peter Yarn. provision in said obligation. And they aver all & Company, in the usual way of making i':'t the appellant, having bound himself as a loans at that bank. From which it is fairly to

be inferred that this obligation was, in form, were considered and accepted by the bank as according to the usage of the bank; with which the principal debtors, because the account kept usage, the obligors must be presumed to have at the bank of this loan was in his name alone, been connusant. Nor is there any direct was done away, and fully explained by the charge of fraud on the part of the bank; but testimony of the cashier as to the custom of it seems to be stated, as matter of inference the bank, that the account is always kept with from the allegation, that the loan was for the the first signer, unless otherwise especially au. sole benefit of Yarnall & Company, and that thorized and directed. But, admitting that the known to the bank. But whatever the charge bank knew that Yarnall & Company were the may be, it is denied in the answer, and is en principal debtors, this would not exonerate the tirely unsupported by the testimony. The other obligors from their responsibility as prin. charge of fraud rests altogether upon the alle cipals, in violation of their express contract. If gations that the appellant was only a surety in Yarnall & Company were of doubtful credit, the single bill, and that was known to the bank. it might have been the very reason why the All the parol evidence on these points seems to bank required all the obligörs to bind themhave been admitted; although objected to, on selves as principals. the part of the bank, as inadmissible, on the It is no doubt a sound and well-settled prin. ground that it contradicted the written instru- çiple that sureties are not to be made responsi. ment. The ruling of the court on this objec- ble beyond their contract; and any agreement tion does not appear upon the record. But if with the creditor which varies essentially the the evidence was admitted, the appellant has terms of the contract, without the assent of the no ground of complaint. It was his own evi- surety, will discharge him from his responsidence. And all that this evidence established bility. But this principle cannot apply where was the simple fact that the appellant was only the surety has, by his own act, exchanged his surety for Yarnall & Company. But that can character of surety for that of principal; and have no influence against his direct admission then applies to a court of equity to re-instate in the obligation that he was a principal; and him to his character of surety, in violation of there being no pretense of mistake or surprise, his own express contract. This would be sancthere can be but one meaning attached to this tioning a fraud upon the creditor. This case admission; which is, that as between the ob- has been likened at the bar to that of a deed, ligors and the bank, all were principals, what. absolute on its face, but which, by an independever might be their relation between them- ent agreement between the parties, was inselves. They had undoubtedly a right to waive tended only as a mortgage. Courts of equity their character and legal protection as sureties, will permit such agreements to be set up against and assume the character of principals. This the express terms of the deed only on the admission in the obligation must have been for ground of fraud; considering it a fraudulent some purpose; and none can be reasonably as attempt in the mortgagee, contrary to his own signed, except that it was intended to place express agreement, to convert a mortgage into all the obligors upon the same footing, with an absolute deed. And it is equally a fraud on respect to their liability to the bank.

the part of a debtor to attempt to convert his The evidence did not support the allegation contract as principal into that of surety only. that the bank had made any agreement to ex No attempt has been made in the present tend the loan or time of payment, other than case to show that the bank had made any continuing the discount in the ordinary course agreement with the appellant, that he should of business at the bank. The form of the be considered and treated as a surety only; obligation dispensed with the necessity of giv- contrary to the express terms of his contract to ing any notice to the appellant, even consider- be bound as a principal. If any such agree. ing him in the character of a surety; and ex ment had been shown, the analogy to the case tending the time of payment, and mere put of a mortgage might hold. delay in enforcing it will not discharge a The allegation that the neglect of the bank surety, unless some agreement has been made to prosecute Yarnall & Company has, by their injurious to the interest of the surety; nothing insolvency, thrown the loss of the debt upon of which appears to have been done in this the surcties, might be of some weight if any

9 Wheat. 720; 12 Wheat. 654. The measures had been taken by them to expedite cashier of the bank denies that he ever made the collection of the debt from Yarnall & Com. any contract with Yarnall & Company for the pany, or no longer to continue the discount of extension of the payment of the obligation dis. the *obligation. But no such measures (* 209 counted at the bank, on the 20th of February, appear to have been taken; and their solvency 1826, for Peter Yarnall & Company and others must be at the risk of the sureties, who have, 208*) * (referring to the single bill in ques. by their express contract, assumed the charaction), after the same became due, for sixty ter of principals. days, or any other period; but discounted the The decree of the Circuit Court is accordingly same according to the custom of the bank: but affirmed. the time or indulgence given was merely at the will of the bank. That he could not make This cause came on to be heard on the tranany contract for the extension of payment, ac script of the record from the Circuit Court of cording to the rules of the bank, without an the United States for the District of Ohio, and order from the board of directors; and that, was argued by counsel; on consideration where

an examination of the minute book, he of, it is ordered and decreed by this court that found nn such order; where, if it had been the decree of the said Circuit Court in this made, it would appear; and the inference at cause be, and the same is hereby affirmed with tempted to be drawn that Yarnall & Company costs.



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