The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-08-02

Of
substance or substantial form; and to deny the
right OF sister State to the surrender of a furi-
| 1--WE on such grounds, it was insisted, would be
nad faith on the part of the authorities of Mary
and' and contempt Of the States constitutional
| 00llgatlons Several decisions of the Sunreme
Courts OF various States were cited in the coursa
OF the argument to establish the position-which
the counsel of the State of Mississippi contended
iGr-that, although the duty of the Governor of
Maryland was made obligatory under the Consti
tuition and act of Congress- to deliver M fupitives
ne mad, nevertheless, the right to do so indepen
dently OF both, upon received principles of public
law; ana that, therefore, if Governor Hicks war
rant were irregular under the legislation referred
to 1t might be sustained on these principles with
out recurring to such legislation.
, ar; ochley was replying to these views when
the Court adjourned.
Nothing done in the other Courts
Gregg and others The Mayor and CITY Council
OF Baltlmore.-Couft of Appeals of Marvland-
June Term, l859.-Chief Justice Legrand de-
hyered this opinion
with the aid l could obtain from the arguments
OF counsel ana from my own study and reflection
prepared a statement setting out, at large nv
views IN regard to this case, but nasmuch as ma
lorTy OF the Court did not concur in them il wouId
De Useless to lille 1t In the cause the more particu
larry so as majority of the Court agree that the
course ofproccdure, indicated in the opinion of
Justice Tuck, will, in the end, bring to n determi
nation the rights OF all parties claiming to be inter
ested IN the subject matter of the controversy
lcontent myself, therefore, with merely STATING
what is understood TO be the effect Of the opinions
OF majority Of this Court. 1t is this that before
final decree these petitioners ought to be heard as
parties, and that If they be not, and are shown to
be prejudiced because of the refusal on appeaI
after final decree, the decree will be held to be Of
no avail as against them and will be reversed or
emaded, under the act of 1882, chapter 800. that
the proper parties may be made.
Trda copy-Test:
WIN. A. SPENCER,
~ Nier6 Court Of hppealA uAEtnouS7,sg,d.
Gregg ct. al. City of Baltimore and Railroad
Company.-Court of Appeals of Maryland-Ju
Term, 1859. On the appeal of Gregg ct al
Opinion of Justice Tuck:
The members of the Court being equally divided
in opinion on the motion to dismiss the appeal,
and also on the propriety of the order appealed
from, 1t must be affirmed. Hatton u.s. Weems, u
IT, & JI Under such circumstances it is not
usual to file opinions, but in view of the pub
lie and private interests involved and the i'm
portance OF having the asserted powers of the
Railroad Company to declare dividends of this
Kind examined and passed upon in a cause. which,
by Its proceedings, shall embrace all persons
interested in having that question authoriatiyely
determined, and supposng that the PROGRESS of tLe
cause may be facilitated, / have felt myself war
ranted In expressing my opinion on the question
OF parties, which has been fully argued, and
which possibly may come before us again that he
ing the only point now before us for review. |
have carefully examined the cases and books of
practice and pleading referred to in argument and
have come to the conclusion that the opinion of the
Court below correctly states the manner of making
new parties in equity, and being of opinion that
this IS not case where in the absence of prece-
dents, one should be made by granting the PRAYER
OF the petitioners, the order appealed from should
De alrmed. feel that the suggestions as to the
Inconvenience and probable loss resulting from the
circuity OF proceedings that the order NAV occa-
SION, IL 1t should appear ultimately that the appel
lantS are entitled to receive the dividends they
claim, are entitled to great Consideration; and if 1
r. oil
ments have every disposition to do So but the
same may be said in many other cases. Indeed, in
most there might be devised a short easy and expe-
dltlous method OF arriving at judicial conclusions
and much loss prevented by avoiding the DELAYS
incident to proceedings as now conducted: but ex-
perence has taught that it is safer looking to the
ends of justice and orderly procedure in our Courts
to adhere to the practice and forms which have oh
tanned from the earliest times. Otherwise, and this
l am admonished might be the result here if the
prayer were granted embarrassment and confusion
may be the consequence. Rules of practice are a
part of the law governing all judicial tribunals
Where parties sue they frame their pleadings and
conduct their causes with reference to such princ-
pes, and have right to require that they shall be
observed on the opposite side. There may be cases
III which they should be relaxed or departed from
Some such have been cited, but they are exceptions
to the general practice, where no other remedy was
open to the parties. The allegation of fraud and
collnsion charged in the petition having been de-
Med treat the question lift had not been made
But, while l agree that the appellants had no
right to be made parties in the manner proposed
and that, therefore, there error in dismissing
their petition, L am of opinion that no decree can
properly pass adversely to the alleged rights OF
stockholders in the predicament of appellants, that
ls, OF such as claim the dividends, unless they or
sufficient number of them. represent that interest
are made parties. This, consider, plain propo-
sition.
The corporation does not represent the appellants
any more than it does the complainants. The pres-
dent and directors bind the members, when acting
WITHIN the charter power; if they go beyond, the
members may enioin them; and the bill here is
framed on the suppositou that the dividends are
not warranted by the charter. If some insist that
they are within the charter shall they not be heard
in like manner? No one will deny that the ap-
pellants might have filed a bill claiming paw
meat Of the dividends or that the company might
have been compelled, by decree, to issue Ger
tificates of debt, according to the order declar-
ing the dividends, if the Court had found it to have
been properly made. ltisnot merely a controversy
between these complanants and the company, but
between the compainants and all stockholders
claiming the dividends. The company being the
holder OF the common funds of all, among the
porators, 1t does not represent all Of them, when
they have opposite views of the company's power:
one set DENYING and the other affirming that the
act in question has been performed in the exercise
OF corporate functions, and claiming the benefit and
fruits thereof
1t is the practice where the persons in interest are
numerous, to implead the representatives of
all IN the same interest, and thereby bind them ALL
represented. If complainants chose to proceed
against some, emitting others who have different
interest they may do but at the peril of obtaining
decree that win be of effect as to those who are
not parties; or if the want Of proper parties be dis
closed at the trial, of having their bill dismissed
or the cause laid over on that account. In such
case, ii a final decree be passed, and the want of
proper parties appeared the record, it would be
the duty of this Court, appeal from such de-
cree, to reverse it, remand the cause, under
the act of 1882, ch 302 sec. g. If this record were
before us now, on such an appeal, could not hes-
tate to state that according that act of Assembly
should be remanded for further proceedings, not
because think that the appellants have a right to
the dividends for that question have not consid-
cred, but because claiming to be interested as they
do, no decree could be passed consistently with well
known principles of equity affecting their alleged
rights unless they had had an opportunity of being
heard in defence Of these rights, and this as well
for the purpose of doing full and complete Justice
between all persons claiming interest in the sub
Ject matter, to protect the corporation ITSELF
whose duty it might be to obey the Decree against
further litigation with such claimants as had not
been made parties
True copy-Test WIN. A. SPENCER
Clerk Court of Appeals of Maryland