Bell v. Jones , 10 Md. 322 ( 1856 )

Eccleston, J.,

delivered the opinion of this court.

The 27th section of the act of 1796, ch. 67, enacts: “That if any petition, for freedom shall hereafter be filed in any court of law in this State, and dismissed, and a second petition filed at the suit of the same party, the court, in which such second petition may be filed, shall order a stay of all proceedings until the costs of the former petition, and all reasonable damages and expenses sustained or incurred by the defendant or defendants therein, to be ascertained by the court, shall have been paid or secured to be paid.”

In the proceedings before us, it appears the defendant made an affidavit, in which he says, that by virtue of the first petition for freedom, filed by the petitioners in the second case, he has sustained, and incurred the following expenses: for fees paid his two counsel, $>250 each, making $>500; “for jail fees and board of the petitioners” from the 13th of November 1854, to the 11th of June 1855, “at twenty five cents each per day, making $25Q or thereabouts, in addition to the taxable costs in his cause.”

The order of the court, after stating the dismissal of the first petition, then says: “The same parties having filed a second petition, which is now pending, and the defendant, Luther D. Jones, having satisfied the court that he has sustained and incurred, by reason of the said petition so dismissed as aforesaid, the expenses in his affidavit hereto attached specified, which are deemed by the court reasonable, it is thereupon on the application of the said Luther D. Jones, this 11th day of June 1855, ordered by this court, that there shall be a stay of all proceedings in the said second petition, until the said costs and expenses shall be paid or secured to be paid.”

This order contains the only ascertainment of damages or expenses by the court. And if it shows they have ascertained any amount of either, it is the amount of expenses specified in the affidavit of the defendant; for the order does not mention any sum to be paid or secured to be paid, except by reference to the affidavit, which is spoken of in the order as being thereto attached.

The appellants contend that this order is erroneous, because it allows counsel fees as expenses. Whether the allowance is proper or not, depends upon the interpretation of the act of 1796; and the words having an important bearing on that subject,, are, “reasonable damages and expenses.”

In construing a statute, the language employed must be considered with special reference to the subject matter legislated upon. >

Should it be evident that a valuable right is intended to be secured, but there are provisions which qualify the right, or impose restrictions upon it, and those provisions contain language susceptible of such construction as may either be moderately restrictive, or so far in conflict with the right as to annul it altogether, or render it of no practical value, then the enlarged construction of the qualifying provisions should not prevail. For it cannot be a reasonable supposition that the legislature designed the language should have an interpretation which would virtually repeal, or render exceedingly doubtful of any practical utility, the privilege evidently intended to be secured by the act.

It is perfectly manifest that, by the act of 1796, the Legislature intended to secure the right of filing a second petition for freedom after one has been dismissed,- the petitioner, however, being required to comply with the terms prescribed by the statute.

The restrictions upon this right are relied on by the appellee, when he insists that the court committed no error in allowing him counsel fees, as expenses. But can it be imagined the Legislature contemplated such an allowance ? So to imagine, would be equivalent to saying they had provided for a second petition, but had imposed upon it such clogs and restrictions as must render the beneficial exercises of the privilege, by those for whom it was designed, next to an impossibility. We cannot suppose the Legislature had any such design. They were aware that negroes, held as slaves, could not have funds of their own, nor be expected to procure them from others, sufficient to pay the fees of counsel employed by their masters.

' The laws of this State recognize negroes as slaves, and the courts are bound to protect and enforce the legitimate rights of masters. It is likewise the duty of our courts so to administer the laws as will secure to negroes the rights designed for them by law.

It is to be remembered, the law does not require payment of all, but of “reasonable damages and expenses.” The meaning of reasonable, cannot be correctly understood without due consideration of the subject to which the word is applied. That which in one class of cases may be reasonable, might bo quite the reverse in a different class.

After an examination of the authorities in regard to whether counsel fees are proper to be allowed as damages, we find the decisions on the subject, in our sister States, have not been uniform. In his work on damages, Mr. Sedgwick treats of this question at some length, commencing at page 99. He notices a variety of cases, without, however, coming to any definite conclusion as to the preponderance of authority.

In Wallis, et al., vs. Delley, et al., 7 Md. Rep., 249, it is held “to be well established, that in all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid to his counsel.” In Day vs. Woodworth, et al., 13 How. S. C. Rep., 363, the right to claim such fees as damages was denied. There the suit was trespass quare clausum, fregit in which the defendants were charged with tearing down and destroying the plaintiff’s mill dam.

Looking to the contradictory decisions on the subject, and allowing proper weight and influence to our own, and to that of the Supreme Court of the United States, when the very peculiar nature of such cases as the one before us is duly considered, we do not think the act of 1796 should be construed to include counsel fees, as “reasonable damages and expenses,” or as either.

Should it be conceded, that, in providing for the ascertainment of the reasonable damages and expenses to be paid to the defendant, the 27th section of the act of 1796 gives to the court a right to exercise their discretion, still, when undertaking to make the ascertainment, if their order or judgment, upon its face, shows they have included in the amount an item or charge which the I iegislaiure never designed should be so included, such a decision may be revised on appeal. It may be true, that an act of the court which is within the limits of their exclusive discretion is final,- but, nevertheless, if it appears to be partly within and partly beyond the scope of their authority, it may be appealed from and reversed.

Believing the Legislature did not intend counsel fees to lx* allowed as expenses, and seeing that the court have included them in their ascertainment of expenses, we think their order on the subject is erroneous.

The order is likewise defective for uncertainty. It refers to the defendant’s affidavit for the amount of expenses, in which the jail fees and board of the petitioners are stated to be c?$>250 or thereabouts.”

Such an order must be subject to the like rule, in regard to certainty, which is applicable to verdicts and judgments. That they are required to be certain, is a principle so well settled, we shall refer to but few authorities on the subject. 10 Bac. Abr., 346, title Verdict, letter Q, (Bouv. Ed.;) Hambleton vs. Veere, 3 Saund. Rep., 169, 171, (Ed. of 1846;) Miller vs. Hower, 2 Rawle's Rep., 55, 56; and Harman vs. Childress, 3 Yerger; 329, where it is said, — “a judgment must express with certainty and precision, the determination of the court.”

That the affidavit is rendered uncertain by the words, “or thereabouts,” we suppose cannot be doubted. If so the order is equally uncertain, And we think the court committed an error in directing a stay of all proceedings, until the expenses should be paid or secured to be paid, whilst the amount was not ascertained with0 sufficient precision. On account of which error the'order should be reversed, notwithstanding it may be ponceded to have been-passed by the court whilst exercising a discretionary authority; for even if they had a discretion in fixing the amount, still they were bound to state it with certainty.

A majority of the judges sitting in this cause, think, that counsel fees should not have been allowed as expenses; and it is the unapimous opinion of the court that, for want of sufficient certainty in the amount of expenses, the order which directed a stay of all proceedings in the second petition, until payment of the costs and expenses should be made or secured, was erroneous. Under such circumstances, we think the court below were wrong in dismissing the last petition; and this renders it unnecessary to decide some of the questions which have been argued with much ability.

From the views set forth in this opinion it will be seen, that we consider the appellants entitled to a reversal of each order appealed from.

Reversed upon both orders appealed from, and a procedendo awarded in regard to the second petition.