By the common law of Maryland, lands of which the testator was
not seized at the time of making his will could not be devised
thereby.
In 1850, the legislature passed the following act:
"Sec. 1. Be it enacted &c., that every last will and
testament executed in due form of law, after the first day of June
next, shall be construed with reference to the real estate and
personal estate comprised in it, to speak and take effect as if it
had been executed on the day of the death of the testator or
testatrix, unless a contrary intention shall appear by the
will."
"Sec. 2. That the provisions of this act shall not apply to any
will executed before the passage of this act by any person who may
die before the first day of June next unless in such will the
intention of the testator or testatrix shall appear that the real
and personal estate which he or she may own at his or her death
should thereby pass."
"Sec. 3. That this law shall take effect on the first clay of
June next."
In 1837, Michael B. Carroll duly executed his will, making his
wife Jane, his residuary legatee and devisee. After the execution
of his will, he acquired the lands in controversy, and died in
August, 1851.
The lands which he purchased in 1842 did not pass to the
devisee, but descended to the heirs.
The cases upon the subject examined.
A distinction is to be made between cases which decide the
precise point in question and those in which an opinion is
expressed upon it incidentally.
Evidence that the name of the tract of land, conveyed by a deed,
was the same with the name given in an early patent, that it had
long been held by the persons under whom the party claimed, and
that there was no proof of any adverse claim was sufficient to
warrant the jury in finding that the land mentioned in the deed was
the same with that mentioned in the patent.
The lessee of the plaintiffs having claimed in the declaration a
term of fifteen years in three undivided fourth parts of the land,
and the judgment being that the lessee do recover his term
aforesaid yet to come and unexpired, this judgment was correct.
This was an action of ejectment brought by the defendants in
error, as heirs of Michael B. Carroll, to recover three undivided
fourth parts of all of three several tracts or parcels of plantable
land called, for the first of said three tracts, "Black Walnut
Thicket" and "Content," contiguous to each other, lying and being
in Prince George's County, in the State of Maryland, containing
seven hundred acres, more or less, and called, for the second of
said three tracts, "Addition to Brookfield," situate, lying, and
being in Prince George's County aforesaid, containing one hundred
and fifty acres, more or less, and called, for the third of said
three tracts, "Lot No. 1," being part of a tract of land called
Brookfield, containing four hundred and fifty acres, more or
less.
Page 57 U. S. 276
Carroll made a will in 1837 in which, after some legacies, he
devised all the rest of his property, real, personal, and mixed, to
his wife, Jane M. Carroll.
In 1850, the Legislature of Maryland passed a law, which is
recited in the syllabus at the head of this report and also in the
opinion of the Court.
In August, 1851, Carroll died, upon which the present action of
ejectment was brought by three of the four branches of his heirs to
recover three undivided fourth parts of the lands mentioned in the
beginning of this report. The claim to the two latter tracts did
not appear to have been prosecuted, but the controversy turned
exclusively upon the title of the plaintiffs below to "Black Walnut
Thicket" and "Content."
Upon the trial in the circuit court, the plaintiffs offered in
evidence to support their title:
1. The patent for "Black Walnut Thicket," dated at the City of
St. Mary's on the 27th September, 1680, and the patent for
"Content," dated on the 10th of August, 1753.
2. A deed from W. B. Brooks and others, to Michael B. Carroll,
dated on the 29th of January, 1842, which purported to convey all
those tracts, parts of tracts, or parcels of land lying and being
in Prince George's County, called "Black Walnut Thicket" and
"Content," contiguous to each other, and contained within the
following metes and bounds, courses and distances, namely ___
(these were not identical with those of either patent).
3. The plaintiff then proved possession by Carroll of the parcel
of land described in the deed to him, from the date of that deed
until his decease, and also proved possession of the same by those
under whom Carroll claimed from 1809.
The defendant, by her counsel, then prayed the court to instruct
the jury
"That there was no sufficient evidence in the cause from which
the jury could properly find that the land embraced in said deed
from said Walter B. Brooks and others to said Michael B. Carroll,
offered in evidence by the plaintiffs, is the same land or parcel
of the same lands embraced in the said patents or in either of said
patents. But the court refused said prayer, being of opinion that
there was evidence in the cause proper to be left to the jury to
determine whether the said land mentioned in the deed was the same
or part of the same granted by the said patents. To which opinion
of the court, and to the refusal of said court to grant the
aforesaid prayer of the said defendant, the said defendant, by her
counsel, prayed leave to except and that the court would sign and
seal this first bill of exceptions according to the form of the
statute in such case
Page 57 U. S. 277
made and provided, and which is accordingly done this fourth day
of December, 1852."
"R. B. TANEY [SEAL]"
"JOHN GLENN [SEAL]"
"Defendant's second exception. The defendant then offered in
evidence the last will and testament of Michael B. Carroll, dated
on the 10th of September, 1837, by which, as has been before
mentioned, he made his wife, Jane, his residuary devisee.
Thereupon, upon the prayer of the plaintiff, the court gave the
following instruction to the jury."
"If the jury find that the plaintiff and those under whom he
claims have possessed and held the land called Black Walnut Thicket
and Content, described in the deed from Walter B. Brooke and others
to Michael B. Carroll, dated ___ 29, 1842, and that the said
Michael B. Carroll died seized thereof August 30, 1851, and the
lessors of the plaintiffs are his heirs at law, and that the said
land is the same, or part of the same land mentioned in the patents
for Black Walnut Thicket and Content, offered in evidence by the
plaintiffs, then the plaintiffs are entitled to recover the land
mentioned in the said deed, and that the same did not pass to the
defendant by the said will of Michael B. Carroll."
"To the giving of which said instruction the defendant, by her
counsel, prayed leave to except, and that the court would sign and
seal this second bill of exceptions, according to the form of the
statute in such case made and provided; and which is accordingly
done this fourth day of December, 1852."
"R. B. TANEY [SEAL]"
"JOHN GLENN [SEAL]"
Upon this instruction the jury found the following verdict.
"
Verdict. Who being empanelled and sworn to say the
truth in the premises, upon their oath do say, the defendant is
guilty of the trespass and ejectment in the declaration mentioned
upon the tracts of the land therein stated, called Black Walnut
Thicket and Content, in manner and form as the said lessee, John
Doe, complains against her, and which is contained within the metes
and bounds, courses and distances set out and described in the
paper hereto annexed, and made for that purpose a part of this
verdict, being a deed from Walter B. Brooke, of Prince George's
County and State of Maryland, Alexander Middleton and Elizabeth A.
Middleton, his wife, of Charles County, and said state, to Michael
B. Carroll, dated the 29th January, eighteen hundred and forty-two,
and they assess the damages of said John Doe, lessee, by occasion
of the trespass and ejectment aforesaid at one dollar, and as to
the other trespasses and ejectment
Page 57 U. S. 278
upon the other tracts or parcels of land in said declaration,
also mentioned, they find that the said defendant is not
guilty."
(Then followed the deed.)
Upon which verdict the court entered the following
"
Judgment. Therefore it is considered by the Court here
that the said lessee, as aforesaid, do recover against the said
Jane M. Carroll his term aforesaid yet to come and unexpired, of
and in the said tracts of land called 'Black Walnut Thicket' and
'Content,' with the appurtenances in the district aforesaid,
wherein the said Jane M. Carroll is by the jurors above found to be
guilty of the trespass and ejectment aforesaid, and the sum of one
dollar his damages by the said jurors in manner aforesaid assessed,
and also the sum of ___ by the court now here adjudged unto the
said lessee for his costs and charges by him about his suit in this
behalf expended, and that he have thereof his execution &c.
"
Page 57 U. S. 279
MR. JUSTICE CURTIS delivered the opinion of the Court.
This action of ejectment was brought in the Circuit Court of the
United States for the District of Maryland to recover three
undivided fourth parts of three tracts of land lying in Prince
George's County in that state. Both parties claimed under Michael
B. Carroll, the plaintiffs as heirs at law, the defendant as
devisee. It appeared at the trial in the court below, which was had
at the November term, 1852, that on the 10th day of September,
1837, Michael B. Carroll duly executed his last will, the material
parts of which are as follows:
Page 57 U. S. 280
"To my dear wife, Jane, I give and bequeath all my slaves, and
do request that none of them may be sold or disposed of for the
payment of my debts, but that provision shall be made for
discharging the same out of the other personal property and effects
which I shall leave at the time of my death."
"All the rest and residue of my property, both real, personal,
and mixed, I give, devise, and bequeath to my said wife, Jane, who
I do hereby constitute and appoint sole executrix of this my last
will and testament, enjoining it upon her nevertheless to consult
and advise with the said John B. Brooke as occasion may require
respecting the settlement of estate, and make him a reasonable
compensation for the same out of the funds hereinbefore bequeathed
to her, and I do hereby revoke and annul all former wills by me
heretofore made, declaring this and none other to be my last will
and testament."
It further appeared, that after the execution of this will,
Michael B. Carroll acquired other lands, and the plaintiffs, as
heirs at law, claimed to recover three undivided fourth parts
thereof as undevised land. The defendant insisted that these,
together with all the other lands of the testator, passed to her
under the residuary clause of the will. She admitted that by the
common law of Maryland, lands of which the testator was not seized
at the time of making his will could not be devised thereby, but
insisted that an act passed by the Legislature of Maryland on the
22d day of February, 1850, so operated as to cause this will to
devise the lands to her. That act is as follows:
"Section 1. Be it enacted by the General Assembly of Maryland
that every last will and testament executed in due form of law
after the first day of June next shall be construed with reference
to the real estate and personal estate comprised in it to speak and
take effect as if it had been executed on the day of the death of
the testator or testatrix, unless a contrary intention shall appear
by the will."
"Section 2. And be it enacted that the provisions of this act
shall not apply to any will executed before the passage of this act
by any person who may die before the first day of June next unless
in such will the intention of the testator or testatrix shall
appear that the real and personal estate which he or she may own at
his or her death should thereby pass."
"Section 3. And be it enacted that this law shall take effect on
the first day of June next."
It is argued by the counsel for the devisee that the first
section of this act was intended to prescribe a new rule of
construction of wills and to fix the time when the courts should
begin to apply that rule, that new rule being, that wills of
the
Page 57 U. S. 281
realty should be deemed to speak at the time of the death of the
testator, and the time when the courts should begin so to construe
them, being the second day of June, 1850, and that the law should
be so read as to mean that after the first day of June, 1850, wills
should be deemed to speak as if executed on the day of the
testator's death unless a contrary intention should appear.
To this construction there are insuperable objections. It would
change the legal operation not only of existing wills, but of those
which had already taken effect by the death of testators. It would
make the same will, if offered in evidence on the 2d day of June,
operative to pass after-acquired lands to a devisee, though if
offered in evidence on the next preceding day it would be
inoperative for that purpose. The object of the whole law
concerning wills is to enable the owners of property reasonably to
control its disposition at their decease. To cause their real
intentions and wishes to be so expressed, and their expression to
be so preserved and manifested that they can be ascertained and
carried into effect are the chief purposes of legislation on this
subject. So to interpret an act concerning wills as to cause those
instruments to operate without regard to the intent of the
testator, having one effect today and another tomorrow, would not
only be arbitrary and a violation of the principles of natural
justice, but in conflict with what must be presumed to have been
the leading purpose of the legislature in passing the law, the
better to gave effect to the intent of the testator. To induce the
court to believe the legislature intended to make this law
retroactive upon a will then in existence, and cause it to pass
after-acquired lands without any evidence that the testator desired
or believed that it would do so, and to fix a particular day before
which the will should not so operate and on and after which it
should so operate, such intention of the legislature must be
expressed with irresistible clearness.
Battle v. Speight,
9 Ired. 288. It is very far from being so expressed in the first
section of this act. On the contrary, its natural and obvious
meaning is that wills executed after the first day of June, 1850,
are the only subjects of its provisions.
The words "after the first day of June next" refer to and
qualify the words "executed in due form of law," which they follow,
just as in the same section the words "on the day of the death of
the testator" refer to and qualify the word "executed." In the
former case, they indicate the time when the will shall be deemed
to have been executed; in the latter, the period of time when it
was actually executed.
In our opinion, the first section of this law is free from
Page 57 U. S. 282
ambiguity, and applies only to wills executed after the first
day of June, 1850, and as this will was executed before that day,
it is not within this section.
Nor is it within the second section of the act, because that
applies only to cases in which the testator having executed his
will before the passage of the act, might die before the first day
of June then next, and this testator survived till after that
day.
It has been supposed however, that although the first section of
this act is free from ambiguity standing by itself, and ought to be
so construed as to apply only to wills executed after the first day
of June, 1850, yet that the second section shows that wills
executed before that day were intended to be included in the first
section. The argument is that the second section excepts out of the
operation of the first section certain wills executed before the
first day of June, 1850, and thus proves that the first section
embraces wills executed before that day. This argument requires a
careful examination. To appreciate it, we must see clearly what are
the nature and objects, as well as the form of the two enactments.
The first prescribes a new rule of construction of wills. They are
to be deemed to speak as of the time of the death of the testator,
but power is reserved to him to set aside this rule by manifesting
in his will an intention not to have it applied. The real substance
and effect of the second section is to enable certain testators to
pass their after-acquired lands by expressing an intention to pass
them.
By force of the first section, the law prescribes a rule of
construction, which a testator may set aside. By force of the
second section, a testator may manifest an intention to have his
will speak as of the time of his decease, and so adopt that rule of
construction. It thus appears that the office of the second section
is not to take certain cases out of the operation of the first
section, but to prescribe another and substantially different rule
of law for those cases. It is true negative language is used which
leaves the law open to the suggestion that the provision of the act
would have applied to such wills if the negative words had not been
used.
But it must be remembered that this is only an inference, the
strength of which must depend upon the subject matter of the
provisions and the language employed in making them.
If every part of the law can have its natural meaning and
appropriate effect by construing this second section as an
additional enactment, and if to construe it as an exception would
affix to the first section a meaning which would be inconsistent
with the great and leading purpose of the legislature and at the
same time be arbitrary and unjust, and if, when viewed as an
Page 57 U. S. 283
exception, the cases can on no just principle be distinguished
from those left unexcepted, then manifestly it should not be
construed as an exception, but as a substantive enactment
prescribing for the particular cases a new rule of law not provided
for in the first section. We have already pointed out the
consequence of holding the first section applicable to all wills.
In addition to this, it is worthwhile to inquire, if the second
section was designed to except certain cases out of the first
section, what those cases were and how they are so distinguished
from the cases left unexcepted as to be proper subjects of
exception. The proposition is that the first section includes all
wills whenever executed, and the second excepts only wills executed
before the passage of the act by persons dying after the passage of
the act and before the first day of June, 1851. Can any reason be
imagined why a will executed before the passage of the act should
be within the first section if the testator died the day before the
passage of the act, and out of it if he died the day after its
passage? If there is any distinction between the two cases, it
would seem the first case had the stronger claim to exemption from
the effect of the new rule.
Nor do we perceive any difficulty in so construing the two
sections as to allow to each its appropriate effect, while neither
of them violates any principle of natural right, the effect of the
first section being to prescribe a new rule of interpretation for
wills executed after the first of June and the effect of the second
being to enable testators who had executed their wills before the
passage of the act and who might die before the first day of June
to pass after-acquired lands if they manifested an intention so to
do. Cases of testators who should execute wills after the passage
of the act and before the first day of June, or who should die
after that day having previous to that day executed their wills,
are left unprovided for, either because it was thought that they
would have sufficient time to conform their wills to this change of
the law or because their cases escaped the attention of the
legislature, as happened in
Barnitz's Lessee v.
Carey, 7 Cranch 468, and
Blougher
v. Brewer's Lessee, 14 Pet. 178.
We have been referred to two decisions in the Supreme Court of
Massachusetts in which a retroactive effect was allowed to a
statute of that state upon existing wills. They are
Cushing v.
Aylwin, 12 Met. 169;
Pray v. Waterston, 12 Met. 262.
But an examination of those cases will show that the interpretation
put by that court on that statute was attended with none of the
difficulties which beset the construction of the statute of
Maryland contended for by the counsel for the devisee. The law of
Massachusetts did not enact a new rule of construction.
Page 57 U. S. 284
It simply enabled testators to devise after-acquired lands by
plainly and manifestly declaring an intention to do so. The law
could only operate in furtherance of the intention of the testator,
and could never defeat that intent by applying to wills an
arbitrary rule of construction.
This distinction was pointed out by this Court in
Smith v.
Edrington, 8 Cranch 66, in reference to a similar
statute in Virginia; respecting which Mr. Justice Washington
said
"the law creates no new or different rule of construction, but
merely gave a power to the testator to devise lands which he might
possess or be entitled to at the time of his death, if it should be
his pleasure to do so."
Moreover, the language of the act of Massachusetts was broad and
general enough to include in its terms all wills which should take
effect after the law went into operation. There was therefore
nothing in the words or the subject matter of the act to lead the
court to a more restricted construction. Still that court thought
the retroactive effect of even such a law required some notice, and
they vindicate the departure from an important principle in that
case with some effort, and the reluctance with which it should be
departed from is well expressed by the Supreme Court of North
Carolina in
Battle v. Speight, 9 Ired. 288, in construing
a similar statute of that state.
We have also been referred to a manuscript opinion of the Court
of Appeals of the State of Maryland upon the effect of this will.
It appears that in November last, the executors of Mrs. Carroll,
the devisee, who is deceased, filed their bill in the Circuit Court
of Prince George's County praying that the administrators
de
bonis non of Michael B. Carroll might be enjoined from making
sale of his negro slaves. The heirs at law and the administrators
de bonis non of Michael B. Carroll were made parties. The
circuit court refused the injunction, the complainants appealed,
the Court of Appeals affirmed the decree of the circuit court, and
dismissed the bill. The grounds upon which the court rested its
decree will best appear from the following extracts from the
opinion:
"The bill is filed by the executors of Mrs. Carroll against the
administrators
de bonis non of Mr. Carroll and his heirs
at law. The gravamen of it is that he specifically bequeathed his
negroes to his wife, and desired they should not be sold and that
his debts should be paid out of his other estate; that she
manumitted them, and that there is other personal and real estate
enough to pay the debts due by his estate. Injunction is asked to
prevent the sale of the negroes under an order of the Orphans'
Court of Prince George's County, which, it is alleged, is about to
be done. It is also claimed in the bill, that at the time of
Page 57 U. S. 285
the will of Mrs. Carroll, she must be considered as holding the
negroes as legatee, and not as executrix, the time specified by law
for winding up the estate of her husband having elapsed."
"This last ground cannot avail. There is no allegation in the
bill that a final account had been settled by her, and the bill
shows that a large amount of debts remained unpaid, and that the
creditors of the estate of her husband had commenced proceedings to
secure their payment, which proceedings are still pending. In this
claim of the bill we suppose but little confidence was, or is
reposed by those who framed it; at all events, there is nothing in
it. There is nothing in the facts of the case to justify the
presumption that there had been a final settlement of the estate of
Michael B. Carroll, and all his debts paid off; the truth is, the
bill directly contradicts the facts out of which such a presumption
could arise."
"It is contended, on the part of the complainants, that the real
estate and personal property, other than the negroes of Michael B.
Carroll, ought to be applied to the payment of his debts before the
negroes are resorted to. This may or not be so; and in regard to it
we pass no opinion, because the question is not before us in this
case. This is not a bill filed on behalf of the negroes, but by the
executors of Mrs. Carroll, and they must occupy the same position
in regard to the creditors of Michael B. Carroll, who are
represented by the administrators
de bonis non, as she
would have done had the bill been filed by her instead of by them.
And if she were the party complainant, how would the case stand?
Why, thus: Michael B. Carroll died in debt, leaving a will by which
his real and personal estate is specifically devised and bequeathed
to his wife. His creditors would have the right to proceed against
his entire estate for payment; first, however, against the personal
as the primary fund. Their rights could not be affected by anything
he might request in his will; their claims would attach to his
entire estate. He did not manumit his slaves; and moreover, this is
not the case of contribution and marshaling of assets between
different devisees and legatees, because here Mrs. Carroll was
specific devisee and legatee, and residuary devisee and legatee;
she, in fact, with but trifling exception, took under the will the
whole estate. Had she, immediately on obtaining letters of
administration, manumitted the negroes, it could not be pretended
such manumission could have affected the rights of the creditors of
her testator, and it must be obvious, if she could not do it by her
act as executrix, that she could not accomplish it by her
will."
"For these reasons we affirm the order of the circuit court
refusing the injunction. "
Page 57 U. S. 286
It is apparent that the question whether some of the lands of
the testator were undevised could not enter into or affect the
decision of this case. The negroes not being parties, no question
could arise whether they were entitled to have the debts paid out
of the land of the testator, and the court declares the question is
not before them. As between Mrs. Carroll, the executrix of her
husband's will or her representatives and the creditors of her
husband, the right of the latter was complete to resort to the
personal property, including the negroes, and it was therefore
wholly immaterial who owned the land. The only prayer in the bill
was that the creditors, through the administrators, might be
restrained from making their debts out of the negroes. The only
question in the case was whether they could be so restrained. And
when it was decided that their legal right was, to have all the
personalty, including the negroes, applied to their debts, it was
immaterial what other rights they or others might have.
We do not consider, therefore, that a comparison of the titles
of the heirs at law and the devisee of Michael B. Carroll to his
lands was brought into judgment by this injunction bill.
If the Court of Appeals had found it necessary to construe a
statute of that state in order to decide upon the rights of parties
subject to its judicial control, such a decision, deliberately
made, might have been taken by this Court as a basis on which to
rest our judgment. But it must be remembered that we are bound to
decide a question of local law, upon which the rights of parties
depend, as well as every other question, as we find it ought to be
decided. In making the examination preparatory to this finding,
this Court has followed two rules, one of which belongs to the
common law, and the other is a part of our peculiar judicial
system. The first is the maxim of the common law,
stare
decisis. The second grows out of the thirty-fourth section of
the Judiciary act, 1 Stat. 92, which makes the laws of the several
states the rules of decision in trials at the common law; and
inasmuch as the states have committed to their respective
judiciaries the power to construe and fix the meaning of the
statutes passed by their legislatures, this Court has taken such
constructions as part of the law of the state, and has administered
the law as thus construed. But this rule has grown up and been held
with constant reference to the other rule,
stare decisis,
and it is only so far and in such cases as this latter rule can
operate, that the other has any effect.
If the construction put by the court of a state upon one of its
statutes was not a matter in judgment, if it might have been
decided either way without affecting any right brought into
Page 57 U. S. 287
question, then, according to the principles of the common law,
an opinion on such a question is not a decision. To make it so,
there must have been an application of the judicial mind to the
precise question necessary to be determined to fix the rights of
the parties and decide to whom the property in contestation
belongs.
And therefore this Court and other courts organized under the
common law, has never held itself bound by any part of an opinion,
in any case, which was not needful to the ascertainment of the
right or title in question between the parties. In
Cohens
v. Virginia, 6 Wheat. 399, this Court was much
pressed with some portion of its opinion in the case of
Marbury
v. Madison. And Mr. Chief Justice Marshall said,
"It is a maxim not to be disregarded that general expressions in
every opinion are to be taken in connection with the case in which
those expressions are used. If they go beyond the case they may be
respected, but ought not to control the judgment in a subsequent
suit, when the very point is presented. The reason of this maxim is
obvious. The question actually before the Court is investigated
with care, and considered in its full extent; other principles
which may serve to illustrate it are considered in their relation
to the case decided, but their possible bearing on all other cases
is seldom completely investigated."
The cases of
Ex Parte
Christy, 3 How. 292, and
Jenness v.
Peck, 7 How. 612, are an illustration of the rule
that any opinion given here or elsewhere cannot be relied on as a
binding authority, unless the case called for its expression. Its
weight of reason must depend on what it contains.
With these views we cannot regard the opinion of the Court of
Appeals as an authority on which we have a right to rest our
judgment. We have already stated the reasons which have brought us
to a different construction of the statute; reasons which do not
seem to us to be shaken by the opinion of the Court of Appeals.
Our conclusion is that the will of Michael B. Carroll was not
within the statute, and the lands in question were consequently
undevised.
One other exception was taken at the trial, respecting which it
is only necessary to say that we think the identity of name of the
two tracts of land in the same county, taken in connection with the
long possession of those under whom the plaintiffs claimed, and the
absence of all evidence of any adverse claim or outstanding title,
was sufficient to warrant the jury in finding that the land was
embraced in the patents from the state.
We are also of opinion that the judgment is correct in form,
being for the term which the declaration alleges was created by
Page 57 U. S. 288
the plaintiffs as owners of three undivided fourth parts of the
land.
The judgment of the circuit court is
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court that the judgment of
the said circuit court in this cause be, and the same is hereby
affirmed with costs.
