Berry y. The Baltimore and Drum Point Railroad Company.

Penn. St. 446; Spangler v. Jacoby, 14 III. 297; Turley v. Logan Courly, 17 id. 151; People v. Stone, 35 id. 121, 141; People v. Mahany, 13 Mich. 481; 35 N. H. 579; 52 id. 622; Cooley on Const. Lim. 135 ; Smith on Const. & Stat. Law, §§ 949, 50; Sedgw. on Const. & Stat. Law, 69; Cushing on the Law of Legislative Assemblies, §§ 2211-1219-22 and 2405.

But while the authorities just cited maintain that it is the right and duty of the court to go behind the authentication of the statute, and to receive evidence, such as that furnished by the engrossed bills, with the indorsements thereon, and the journal of proceedings of the two houses of the legislature, upon the question of the constitutional enactment of what purports to be a statute, they all seem to concur in maintaining that no statute, having the proper forms of authentication, can be impeached or questioned upon mere parol evidence. Nor do we decide in this case, that the journals of the two houses, though required by the Constitution to be kept as records of their proceedings, would be evidence per se upon which the validity of a statute, having the required authentication, would be successfully questioned as to the manner of its enactment. But we think the journals, in connection with other competent evidence upon the subject, may be examined as means of information to aid in arriving at a correct conclusion as to what was the action of the legislature on any particular bill before it. And while the evidence must be of the most satisfactory character, in order to overcome the presumption arising from due authentication of the statute, we think we may safely conclude with the Supreme Court of the United States, in the case of Gardner v. The Collector, 6 Wall. 499, that, on principle as well as authority, whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect. or of the precise terms of a statute, the judges who are called upon to decide it, have a right to resort to any source of information which in its nature is reliable and capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule. And applying this rule to the present case, as we can have no doubt whatever that the third section of the act in question, as that act was sealed and approved by the governor, is materially different from the third section of the act as it passed the two houses of the legislature, we must, therefore, declare that particular section of the

act to be null and void.

And having thus declared the third section of the act a nullity, the next question is, how does that affect the remainder of the statute? VOL. XX.-10

Thorner v. Batory.

Upon examination it is found that the third section is entirely separate and disconnected from the other sections of the act, and that the operation and effect of those sections in no manner depend upon the co-existence of the third section. As applicable to such case, Judge COOLEY, in his work on Constitutional Limitations, p. 177, says: "It will sometimes be found that an act of the legislature is opposed in some of its provisions to the Constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association, must depend upon a consideration of the object of the law, and in what manner, and to what extent the unconstitutional portion affects the remainder." Here, as the entire published statute, except the third section, was regularly passed by the legislature, and approved by the governor. there can be no reason for declaring the other portions of it void, because the third section is found to be a nullity. Statutes may be void in part and good in part; and if the part that is valid is entirely distinct and severable from that which is void, the courts will uphold and enforce the former as if passed disconnected from the latter. State v. Commissioners of Balto. Co., 29 Md. 521; Mayor, etc., of Hagerstown v. Dec hert, 32 id. 369; S. C., 3 Am. Rep. 161. That principle applies to this case.

It follows from what we have said, that the 19th section of the appellee's charter is left unaffected by the act of 1874, and that that section still prescribes the limitation for the commencement and completion of the road. And, as in this view of the case the appellant's bill presents no ground for an injunction, the order appealed from will be affirmed, and the bill dismissed.

Order affirmed, and bill dismissed.

THORNER V. BATORY.

(41 Md. 593.)

Judgment action on judgment of another State.

Lu an action of replevin in Tennessee the defendant had judgment as authorized by the law of that State for a return of the goods or, failing that, that he recover of the plain. tiff and his surety in the replevin bond the value of the goods. Held, that an action of debt on this judgment, against the plaintiff and the surety, was not maintainable in Marylard.

Thorner v. Batory.

ACTION of debt against Batory and another upon a judgment re

covered in Tennessee.

The opinion states the case.

John S. Wirt and Richard M. Venable, for plaintiff.

Wm. F. Frick, for defendant.

MILLER, J. In this case Thorner and Heidelbach brought an action of debt against Batory and Jackson, upon a judgment recovered by the plaintiffs against the defendants in the State of Tennessee. Batory was summoned and Jackson returned non est. The first count of the declaration is upon an absolute judgment for a certain sum of money. Nul tiel recora was pleaded to this count, and on production of the record of the judgment sued on this plea was very properly sustained. A similar plea to the second count was overruled, and under instruction from the court the jury rendered a verdict in favor of the plaintiffs for $2,039.96. Subsequently on motion of the defendant, the court arrested judgment on this verdict, and the plaintiffs have appealed.

The record of the Tennessee judgment shows that Batory obtained a writ of replevin for certain goods in the possession of Thorner & Heidelbach which he clamed as his, and Jackson became his surety on the replevin bond. Under the writ, the goods were taken by the sheriff and deiivered to Batory, who then filed a declaration against the defendant "for the goods" (specifying them), "which he says the defendants wrongfully detained from him," and " for $2,000 damages for the detention thereof." The defendants pleaded not guilty. The plaintiff failing to prosecute the suit, a judgment by default (as it is termed) was rendered against him by which the court adjudged, "that the defendants recover of the plaintiff their damages occasioned by the unlawful seizure and detention of the property in the pleadings mentioned," and under a writ of inquiry to assess these damages, the jury found and assessed "the defendants' damages for the detention of the goods in the declaration mentioned, from them by the plaintiff, to $161.10, and they find the value of said goods to be $1,283." Upon this verdict the court gave judgment "that the plaintiff return said goods to the defendants, and if he fail to do so, that the defendants recover of the plaintiff and H. C. Jackson, his security in the replevin bond given in this cause, the value of the goods as found by the jury," and further, " that the defendants recover of the plaintiff and his surety, H. C. Jackson, the sum of $161.10 damages for the detention thereof, and also the costs of this suit, for which execution mav issue." We have thus stated the proceedings and judgment at length

Grove v. Todd.

in order to show that this judgment is valid only by virtue of some statute law of Tennessee. Neither in this State nor at common law could such a judgment be rendered in an action of replevin.

The second count of the declaration sets out this alternative judgment and avers that it remains in full force, unreversed and unsatisfied, and that Batory has not returned to the plaintiffs the said goods or any part of them, "whereby an action hath accrued to the plaintiffs to have and demand of and from the defendants the sum of $1,469.55," that being the aggregate of the value of the goods, the damages assessed for their detention and the costs of suit. We entirely concur with the learned judge of the Superior Court in arresting judgment upon this verdict, and with the reasons he has assigned therefor. The judgment sued on is not such an one as the courts of this State can carry into effect by a like judgment to be rendered here. Any other judgment would be transcending the powers of our courts, which must be limited to the same measure of relief which the plaintiffs were entitled to in the State of Tennessee. The action brought on this judgment is an action of debt in which the only judg ment that can be rendered is for a certain sum of money. It is clear that such an unconditional judgment would take from the defendant the right which he had under the Tennessee judgment to satisfy it by returning the property, and to that extent would work an unauthorized change of the rights of the parties. The views of Judge REDFIELD in the case of Dimick v. Brooks, 21 Vt. 569 (cited in the opinion of the court below), seem fully to sustain the position here taken, and we have no hesitation in adopting them.

Order affirmed.

GROVE, appellant, v. TODD.

(41 Md. 633.)

Dower-release of must be by deed duly acknowledged - defective acknowledgment — remedial legislation.

A wife can only be divested of her dower by a deed properly and legally acknowledged and a deed not so acknowledged is wholly inoperative as to her, and is to be treated as if she had not been a party to it.

A wife joined in her husband's deed for the purpose of releasing her dower; but the deed was so defectively acknowledged as to be, under the then existing law, inoperative and void as to ber. Afterward, and after the husband had died, the legislature

enacted that all deeds having such defects in the acknowledgment should be as valid to all intents and purposes as if regularly acknowledged. Held, that the deed was not revived and validated as against the wife; but semble, that as against the husband's heirs the deed was made good by the statute.

BILL

ILL to have a deed declared null and void and for the assignment of dower. The opinion states the case.

John J Donaldson and Thomas Donaldson, for appellants.

Charles W. Ross and William A. Fisher, for appellee.

ALVEY, J. There are but two questions presented by the record in this case. First, whether the defective or invalid acknowledgment of the deed of the 29th of November, 1866, by Benjamin Todd, and Ruth, his wife, has been so far aided and cured by the act of the legislature of 1867, ch. 160, as to render the deed valid and effectual as against the wife to bar her right and claim to dower in the land attempted to be conveyed; and if such has been the effect of the act of 1867, secondly, whether the wife Ruth was induced to sign or execute the deed under such circumstances of fraud and circumvention as will entitle her to relief from its operation.

The deed purports to convey a farm of about 1318 acres of land in Frederick county, to Benjamin H. Todd and Jesse E. Todd, children of Jesse Todd, deceased, the illegitimate son of Benjamin Todd, the grantor. The consideration expressed in the deed was the love and affection which the grantor, Benjamin Todd, bore to the grantees, whom he called his grand-children. The wife Ruth bore no blood relation whatever to these children. The deed, while it professes to have been executed and acknowledged in Frederick county, before a justice of the peace of that county, was in fact executed and acknowledged in Carroll county, where the grantor and his wife at the time resided, before á justice of the peace of Frederick county. Benjamin Todd, the grantor, died intestate in December, 1866, and his widow, one of the appellants, intermarried with Samuel Grove, the other appellant, some time in the summer of 1867. The bill is filed by the appellants to have the deed declared a nullity. and for the assignment of dower in the land attempted to be conveyed. A large mass of proof has been introduced, reflecting upon the question of fraud, but from the view we have of the case it will become unneces sary to determine whether the allegations of fraud be fully sustained or

aot.

1. As to the question of the defective or invalid acknowledgment of the deed.