injured by the joint breach of trust on the part of the bank and the trustee? No ratification by the trustee of the bank's participation in the breach of trust can possibly affect in any way the bank's accountability to the new trustees. 2 As to the statute of limitations, it is only necessary to say that a participant in a breach of trust cannot, any more than can the trustee himself, invoke that defense. Pom. Eq. Jur. § 1080. Even if the statute applied, to be availed of as a defense it must be invoked by either a plea or an answer. Allender v. Vestry of Trinity Church, 3 Gill, 166. The answer of the bank relies on limitations only as against the claim for $2,000, which is not the claim for the $2,024.30 collected on the check given in payment of the Duckett mortgage debt, and that is the claim for which we hold the bank liable. So, in fact, the statute is pleaded against the claim that the bank is not liable for, and is not pleaded against, the claim for which it is responsible. We have made no allusion to a line of cases of which Bank v. Lange, 51 Md. 138, Marbury v. Ehlen, 72 Md. 206, 19 Atl. 648, and Stewart v. Insurance Co., 53 Md. 564, are illustrations, because the principles applied in that group of decisions have no relation to the questions involved on the record now before us. The sale of a promissory note payable to a trustee, and therefore a nonnegotiable note, or the transfer of a certificate of stock standing in the name of an individual as trustee, is quite a different thing from the payment of a check drawn by a trustee on an account standing to his credit as trustee in a bank. Where certificates of stock are held in trust, and on their face indicate that they are so held, the bank or other corporation is bound, before suffering them to be transferred on the books of the corporation, to know, or at least to use proper diligence to ascertain, that the trustee has authority to make the transfer, whereas, in the case of a deposit, the relation of debtor and creditor is created in the capacity in which the deposit is made, and the bank's duty is to pay out the fund to or upon the order of the person making the deposit when the check is properly signed, without looking to the application of the fund; and it incurs no responsibility by so doing unless it knowingly participates in a breach of trust or itself reaps the fruit thereof. We hold, then, on the entire case, that the bank is accountable for the sum of $2,024.30, the amount of the check dated September 17, 1892, with interest thereon from the date of the deposit of the proceeds to the credit of Clagett's individual account, and that it is not liable for the proceeds of the other check. The decree dismissing the bill of complaint will accordingly be reversed, and the cause will be remanded, that a new decree may be passed conforming to this opinion. Decree reversed, with costs above and below, and cause remanded. WELLS v. MUNROE et al. (Court of Appeals of Maryland. Dec. 1, 1897.) ELECTIONS-BALLOT-MANDAMUS-CONTESTRIGHTS OF DEFEATED INCUMBENT. 1. Act 1896, c. 202, § 39, provides that all certificates of nomination for office of any division greater than a county office shall be filed with the secretary of state, and certificates of nomination for all other offices shall be filed with the supervisors of election of the proper counties. Section 49 makes it the duty of the supervisors of election to cause to be printed on the ballot the name of every candidate whose name is properly certified. Section 50 provides that all ballots shall contain the name of every candidate whose nomination for an office specified in the ballot shall be certified and filed. Held that, as the supervisors of election have no discretion as to placing a certified name on the ballot, mandamus will compel them to do so on their refusal. 2. In an action to compel the supervisors of election to place the name of a candidate for an office on the ballot, when it appears that no vacancy exists in respect to that office the court will not direct by mandamus the name of the nominee to be placed on the ballot. 3. Where a candidate for office is returned as elected, and receives his commission from the governor, but is declared not elected by the house of delegates, he is entitled, after qualifying, to hold office only until his successor shall be elected and qualified. 4. Where a vacancy occurs in the office of clerk of the circuit court by virtue of a contest, it is the duty of the house of delegates to order a new election within 30 days. 5. Where one has been returned as elected, and commissioned clerk of court, and has been defeated in a contest, his successor's election may take place at the time appointed by the impossible, then at the next general election. house of delegates, or, in the event that that is 6. Where one has been elected as successor to a clerk of court who has been declared not legally elected by the house of delegates, he is entitled to hold his office for six years, under the provisions of Const. art. 4, § 25. Appeal from circuit court, Anne Arundel county. Action by George Wells against Frank A. Munroe and others. From an order refusing plaintiff a writ of mandamus, he appeals. Reversed. Argued before MCSHERRY, C. J., and BRYAN, BRISCOE, FOWLER, ROBERTS, PAGE, and BOYD, JJ. Robert Moss, for appellant. Jas. M. Munroe, John P. Poe, and Dennis Claude, for appellees. PAGE, J. This proceeding was instituted for the purpose of obtaining a mandamus directing the supervisors of Anne Arundel county to receive the certificate of the nomination of the appellant for clerk of the circuit court, and to place his name as a candidate for that office on the official ballot to be voted at the election to be held in November, 1897. In view of the urgency of the case, we have already rendered our judgment, reversing the order below, and we will now proceed to give the reason for our action. There is no dispute as to the facts of the case, as stated in the petition. They may briefly be stated as follows: At the general election in November, 1895, Dr. George Wel's was duly returned elected clerk of the circuit court for Anne Arundel county for the full term of six years, and was duly commissioned by the governor, and bonded and qualified, and entered upon the discharge of the duties of the office, and has so continued to the present time. His election, however, was contested by Dr. Washington G. Tuck, and on the 24th of March the house of delegates passed the following resolutions: "Resolved by the house of delegates of Maryland, that at an election held on the 5th day of November, 1895, for clerk of the circuit court for Anne Arundel county, George Wells was not duly and legally elected clerk of the circuit court for Anne Arundel county." "Resolved by the house of delegates of Maryland, that an election for clerk of the circuit court for Anne Arundel county be, and the same is hereby, ordered to be held on the 21st day of April, 1896, in pursuance of section 12 of article 4 of the constitution." The special election thus directed, however, could not be held for the reasons stated by this court in the case of Munroe v. Wells, 83 Md. 505, 35 Atl. 142. In August, 1897, the petitioner was nominated for the office of clerk of the circuit court for Anne Arundel county by a convention of the Democratic party, and a certificate thereof in due form of law was filed with the supervisors of election of Anne Arundel county. The supervisors, however, refused to place his name upon the official ballot; the reason therefor being, as appears from their answer to the petition, that there was no vacancy in the said office. It is contended that these facts do not present a case for a mandamus, because the power of the supervisors with respect to the placing of names upon the judicial ballot is discretion. ary. The rule in regard to the powers of the court to issue mandamus is too well settled to require the citation of authority. In Green v. Purnell, 12 Md. 336, it is stated as follows: "It cannot issue in a case where discretion and judgment are to be exercised by the officer, and it can only be granted when the act required to be done is merely ministerial, and the relator without adequate remedy." Now, what was the duty of the supervisors in respect to a case like this? By the thirty-sixth section of the act of 1896, c. 202, any convention and primary meeting held for the purpose of making nominations to public office "may nominate candidates for public office, to be filled by election within the state." All nominations "so made shall be certified as provided by the 37th section and by the 39th section. Such certificates shall be filed for the nomination of candidates for congress, state offices, and offices of any division greater than a county, with the secretary of state, and certificates of nomination for all other offices, with the supervisors of election of the respective counties or of the city of Baltimore, as the case may be, not less than eighteen days before the election the secretary of the state, must certify to the supervisors of election of each county, or of the city of Baltimore, within which any of the voters may by law vote for candidates for such office," the name and description of each person nominated for such office, as specified in the certificate of nomination filed with the secretary of state (section 43); and, eight days before the election, publish "the nominations to office, which have been filed with or certified to them under the provisions of this article." By the forty-ninth section it is made their duty "to cause to be printed on the ballot the name of every candidate whose name has been certified to or filed with the proper officers, in the manner herein provided for"; and by the fiftieth section all ballots shall contain the name of every candidate whose nomination for any office specified in the ballot has been "certified to and filed" according to the provisions of the article. There are other provisions relating to the preparation of the official ballot, but nothing therein contained in anywise varies the clear intent of the legislature to be gathered from those we have cited. It is manifest it was not the purpose to invest the supervisors with any discretion as to what names should be placed upon the official ballot. It will not for a moment be contended that the supervisors can reject any of the nominations certified to them by the secretary of state under the forty-third section, because in their opinion there were no vacancies in the offices for which such nominations were made, nor is there any authority to be found anywhere in the statute investing them with power to act differently in respect to nominations certified from a convention or a primary meeting. Where the nominations come to the supervisors from the proper sources, certified in the proper manner, as the law provides, it is their plain duty to place the names certified to on the ballots, and all ballots shall contain every such name. The court below, therefore, had full jurisdiction to entertain this proceeding. But, for all that, it will not do a nugatory act, but will refuse the writ if it be manifest that it can have no beneficial effect. State v. Taylor, 59 Md. 338. If there is no vacancy in the office of clerk of the circuit court for Anne Arundel county, and no such officer was legally to be elected at the election to be held in the month of November, 1897, the court will not direct the name of a nominee for that position to be placed on the ballot. Worman v. Hagan, 78 Md. 163, 27 Atl. 616. The next question that is presented, therefore, is, was there such a vacancy in that office as must be filled by the voters of the county at the approaching election? The counsel for the appellees insist that the decision of this court in the case of Ijams v. Duvall (recently decided) 36 Atl. 819, is conclusive of this controversy. But we cannot concur in this view. In that case, as in this, Duvall had been duly commissioned by the governor, and had entered upon the discharge of his duties. His election was contested by Ijams; and the house of delegates decided that Duvall had not been duly elected, and ordered a new election, which could not be and was not held. Thereupon the governor, regarding the office as vacant within the meaning of section 40 of article 4 of the constitution, appointed and issued a commission to Ijams, who, on the refusal of Duvall to surrender the office to him, applied for a mandamus; so that the question in that case was whether there was such a vacancy in the office as enabled the governor to appoint some other person to fill it. In its decision the court discusses the nature of the vacancy referred to in section 40 of article 4, and holds it to be a vacancy occurring after an election by the people, "created by deaths, resignation, or by some other cause, of one or more of the three men who had been chosen by the qualified voters." What was decided by that case was that the governor had no power to appoint a successor to Duvall, because there was no vacancy within the meaning of the only section of the constitution that conferred upon him the authority to make such appointment. In the case at bar the question is, is there such a vacancy in the office as must be filled by the election of the people? Upon being returned elected, Dr. Wells received his commission from the governor, and duly qualified and entered on the discharge of his duties, and these facts alone conferred upon him a valid title to the office. Brooke v. Widdicombe, 39 Md. 402. This title, however, is not that conferred by the constitution on one who has been elected by a plurality of the qualified voters, under the twenty-fifth section of article 4 of the constitution. To the house of delegates, under section 12, art. 4, is confided the power and authority to decide upon the election and qualification of candidates for this office, and its decision that the appellant "was not duly and legally elected clerk," etc., at the election of November, 1895, must be taken to be decisive. Dr. Wells, therefore, was not entitled, under the governor's commission, to a term of six years, which, under section 25, can only begin "from the time of his election." Whatever rights he acquired to the office were derived solely from the governor's commission and his qualification. Jump v. Spence, 28 Md. 1; Brooke v. Widdicombe, supra. The commission could not confer upon him the rights of an officer elected by the voters. It in fact entitled him, after qualifying, to hold the office only temporarily, a locum tenens, until his successor was properly and legally appointed and qualified. Robb v. Carter, 65 Md. 334, 4 Atl. 282. How shall such successor be chosen, in accordance with the provision of the constitution? Under the circumstances of this case, it is not within the power of the judges to appoint; the "vacancy" contemplated by the twenty-fifth section of article 4 being one that occurs after an election by the voters. The reasoning stated in Ijams v. Duvall applies here and is decisive of the point. The general intent of the constitution, when all its provisions applicable to the subject are regarded, is manifest that clerks of all courts in the state shall be elected by the people. All the sections relating to the terms of their offices provide for a term "beginning from the time of his election." By section 17, art. 4, the clerk of the court of appeals holds his office "for the term of six years from the time of his election." The same language is employed in section 37, art. 4, relating to clerks of the courts of Baltimore city; and by section 25, art. 4, clerks of the circuit court for the counties hold their offices for six years from the time of their election. Moreover, the policy of the constitution is clear that in cases of vacancy, where the judges have power to fill the same, their appointments hold only until the next general election for delegates to the general assembly, "when a successor shall be elected for the term of six years." So, if there be a contest, and the judgment be against the one who has the commission of the governor, the house of delegates is to refer the matter again to the voters by ordering a "new election within thirty days." It is therefore clearly contrary to the spirit of the constitution that one who has been declared not to have been duly elected by the house of delegates, the judges designated by the constitution to settle the matter, shall yet hold the office for the full term of six years, where the legal right to such a term can only accrue in consequence of an election by the legally qualified voters. The last clause of section 12, art. 4, "if the judgment shall be against the one who has been returned elected or the one who has been commissioned by the governor, the house of delegates shall order a new election within thirty days," was inserted for the purpose of securing a reference of the matter to the people at an earlier period than that of the next general election; in fact, for the purpose of so referring it at the earliest day practicable. Under the present constitution the house has no power to decide who is elected and entitled to the term, differing in that respect from the preceding constitution. The duty of the house of delegates is now only to judge of the election and qualification of the candidates, and to order a new election, if the decision be against the one who was returned elected; thus emphasizing the general intent that all clerks shall hold their offices only by an election by the people, except in cases where necessity requires a temporary appointment until the will of the people can be expressed. If these views be correct, while there was no vacancy in this office, Dr. Wells holding it temporarily under the commission of the governor until his successor was duly appointed and qualified, no one having been duly elected there is noone entitled to the term provided by section 25 of article 4. But this section also provides: "There shall be a clerk of the cir cuit court for each county, who shall be elected by a plurality of the qualified voters of said county and shall hold his office for six years from the time of his election and until his successor is elected and qualified," etc. We are therefore of the opinion that, by the spirit and intent of the constitution, there is such a vacancy in the office as to make it necessary and proper that an election for the office shall be held at the earliest possible moment. If it could not be held at the time the house of delegates appointed, there are no reasons why it cannot be held at the general election on the day designated by section 7 of article 15. If such election be held, it is obvious the person elected would not take a fragment of a term. Dr. Wells, as we have said, has not been holding for any part of the term, designated by section 25 of article 4, but temporarily only, until a term should legally begin. The person elected, therefore, would be entitled to the full term of six years from the time of his election. For these reasons the order is revers ed. R. FRANK WILLIAMS CO. v. UNITED EQUITY PRACTICE-CORPORATIONS. 1. Under Code, art. 5, § 21, providing for an appeal from an order appointing a receiver, an order refusing to rescind the order of appointment, not being in the nature of a final decree, is not appealable. 2. Under Code, art. 5, § 21, providing that an appeal may be allowed from "an order appointing a receiver, the answer of the party appealing being first filed," an appeal from such an order will be dismissed, if taken before answer filed. 3. A bill in equity may be answered by a corporation only under its corporate seal. Appeals from circuit court, Wicomico county, in equity. Bill in equity by the United States Baking Company and others against the R. Frank Williams Company for the appointment of a receiver. From an order appointing receivers, and from an order overruling a motion to dismiss the bill and to rescind said appointment, defendant appeals. On motion to dismiss. Granted. Argued before McSHERRY, C. J., and BRYAN, BRISCOE, PAGE, BOYD, and FOWLER, JJ. Jas. E. Ellegood and G. Grier Ratcliff, for appellant. Jay Williams and Rob. Graham, for appellees. MCSHERRY, C. J. A bill of complaint was filed on the equity side of the circuit court for Wicomico county on July 22, 1897, by the appellees against the appellant, praying for the appointment of receivers to take possession of the appellant's assets and property. The appellant is a body corporate, duly incorporated under the general laws of Maryland pertaining to the creation and formation of corporations. On the day the bill was filed an order was signed appointing receivers as prayed. In disposing of the only question which we are required to decide or can determine as the record stands, it is unnecessary to make reference to the allegations of the bill. On the 28th of July the appellant filed in the court below a motion to dismiss the bill and to rescind the order appointing the receivers; but this motion was overruled on August 2d. On the 4th of August what purports to be an answer of the defendant corporation, signed by two solicitors, but not under the seal of the corporation, was filed; and on the same day an appeal was taken by the defendant from the order of July 22d appointing the receivers, and from the order of August 2d overruling the motion to dismiss the bill and to rescind the appointment of the receivers. On the 7th of August another paper, signed by three persons, professing to be a majority of the directors of the defendant corporation, was filed, wherein all the allegations of the bill are admitted, and whereby it is claimed that the appeal of August 4th was taken without the authority of the company. This paper is not under the corporate seal. A motion has been made in this court to dismiss the two appeals docketed pursuant to the prayer of appeal dated August 4th. Various reasons have been assigned in support of this motion, but, as one of them is decisive, and must prevail, it alone will be considered. This is the third reason, and it asks that the two appeals shall be dismissed "because the appellant did not file any answer at all before entering an order for appeal." From the order denying the motion of July 22d, which motion asked that the bill be dismissed, and that the appointment of the receivers be rescinded, standing alone, no appeal will lie. This precise proposition has been decided in Hull v. Caughy, 66 Md. 104, 6 Atl. 591. The order overruling this motion is in no sense a final decree, nor is it an order in the nature of a final decree; and, though an appeal is allowed from an order appointing a receiver, no appeal is provided by statute from an order refusing to rescind the appointment, or refusing to discharge the receiver. Code, art. 5, § 21. As observed in Hull v. Caughy, there are cases reported where, upon appeals taken and entertained from orders appointing receivers, or from other like orders from which an appeal is especially provided for by statute, the propriety of continuing or of discharging the receiver has been considered. But the propriety of continuing or of discharging the receiver was considered only because there was an appeal properly taken on some other ground. So it comes to this inquiry: Has there been an appeal properly taken from the order of July 22d appointing the receivers? The section of the Code to which reference has just been made expressly provides for an appeal from an order appointing a receiver; but the appeal can only be taken after the defendant has filed an answer. The filing of an answer is an indispensable prerequisite to an appeal. Though the answer cannot be looked to in determining whether the order appealed from ought to have been granted or not, for the propriety of the order is dependent alone upon the sufficiency of the averments of the bill, still the appeal cannot be entertained, and therefore the sufficiency of the allegations of the bill cannot be considered, unless an answer has been filed before the appeal was prayed. This is the imperative requirement of the statute, and cannot be disregarded. If no answer was filed below, or if that which purports to be an answer is in law no answer at all, then there is no appeal before us which can be considered, and the motion to dismiss must prevail. We have said that the appellant-the defendant below, and the only defendant in the case-is a body corporate; and we have stated that the paper purporting to be its answer is not under its corporate seal. If a defendant corporation cannot answer in a court of chancery except under its corporate seal, then there is no answer in the case, and there was none before the appeal was taken. Now, can a defendant corporation make answer in a court of chancery to a bill of complaint filed against it, except under its corporate seal? It is perfectly clear that it may sue as plaintiff, in equity or at law, without affixing its corporate seal to the bill of complaint or the declaration. Iron Co. v. Detmold, 1 Md. Ch. Dec. 371. But it is equally true that it can only answer in a court of equity under its seal. McKim v. Odom, 3 Bland, 420; Telegraph Co. v. Pearce, 71 Md. 539, 18 Atl. 910; Miller, Eq. Mortg. § 167; Barr. Ch. Prac. 460; Alex. Ch. Prac. 61; 2 Daniell, Ch. Prac. *270; Coop. Eq. Pl. 325; Story, Eq. Pl. § 874; Iron Co. v. Wingert, 8 Gill, 170; Railroad Co. v. City of Wheeling, 13 Grat. 40; Ransom v. Bank, 13 N. J. Eq. 212; Haight v. Morris Aqueduct, 4 Wash. C. C. 601, Fed. Cas. No. 5,902; Griffin v. Bank, 17 Ala. 258; 1 Enc. Pl. & Prac. 886, note 6; Ang. & A. Corp. § 665, and notes. The form of the answer is given in section 665, last cited. It is obvious, then, as the paper purporting to be an answer is, by reason of the absence of a seal, no answer at all, that there is no answer in the case; and it follows, from the plain provisions of the statute, that the appeals taken without an answer being filed cannot be considered, and must be dismissed; and it is so ordered. Appeals dismissed, with costs. who immediately gave notice of dissolution, and formed a new firm. Ten days afterwards they executed a deed of trust for the purpose of the payment of the debts of the new firm and the personal debts of the members thereof. On suit by the creditors of the old firm against the trustee of the new firm, there being no evidence of bad faith on the part of the trustee, held that, the old firm being insolvent at the time of the first dissolution, the conveyance by the retiring partner was void as to creditors of the old firm. 2. The trust deed ignoring the rights of the creditors of the original firm was void. Appeals from superior court of Baltimore city. Four separate attachments by the Franklin Sugar-Refining Company, V. J. Brown & Co., Edmondson, Steuart & Co., and Lederer Bros. against Henderson, Pfeil & Co. and others. From an order pro forma quashing the attachments, the plaintiffs appeal, all in one record. Reversed. Argued before McSHERRY, C. J., and BRISCOE, BRYAN, PAGE, and BOYD, JJ. Frank Gosnell, Wm. S. Bryan, Jr., and Jas. W. McElroy, for appellants. A. S. Niles and Oscar Wolff, for appellees. MCSHERRY, C. J. These four cases come up from a pro forma order quashing attachments sued out by the appellants against the appellees Henderson, Pfeil & Co. In November, 1892, John B. Henderson, George Henry Pfeil, and Alexander J. McDonald formed a co-partnership, which carried on business in Baltimore city until October 4, 1895. On that day the co-partnership was dissolved. It was indebted at the time to sundry persons, but whether it was insolvent or not is one of the controverted issues of fact that will be considered later on. Henderson sold his interest in the concern to his associates, and assigned and made over to them all of his right and title, as a member of the firm, in and to the property and assets of every kind, real, personal, and mixed, owned by the co-partnership. Notice of dissolution was given, and Pfeil and McDonald at once formed a new firm, under the old name. Just 10 days afterwards-that is, on the 14th day of October, 1895-Pfeil and McDonald executed a deed of trust to Oscar Wolff, Esq. The deed was made by "George H. Pfeil and Alexander J. McDonald, trading as Henderson, Pfeil & Co.," and is not signed by Henderson. It recites that "the parties of the first part" (that is, Pfeil and McDonald) "are indebted to divers persons and firms in various sums of money, and have become and are unable to pay such indebtedness in full"; and that, "in order to have their assets and effects collected and faithfully applied to the payment of their said debts" (that is, the debts due by the grantors), the assignment was made. After making provision for the payment of costs and commissions and such preferences as the law creates, the deed proceeds to declare that the trustee shall apply 11 |