avoided on that ground. So far as we are at liberty to look to the intent of these laws, the governing policy would seem to favor rather than discountenance such assignments as are made for the equal and undiscriminating benefit of all the creditors. And from the successive and numerous amendments and supplements to the original act, it is manifest, that the legislature meant to leave nothing to construction or inference, in the interpretation of these assignments in favor of creditors. They are either within the terms of the act, or excluded from it; and the only inquiry when such an assignment is litigated is, whether it is embraced in any of the provisions of the act, which in terms condemn and prohibit it. The conveyance before us being free from all such objection, the decree of the chancellor is affirmed with costs.

Decree affirmed.

PREFERENCE OF CREDITORS BY INSOLVENT DEBTOR: See Denny v. Dana, 48 Am. Dec. 655, and cases cited in the note thereto.

ASSIGNMENT FOR BENEFIT OF ALL CREDITORS, conveying all property and contravening no express provision of the insolvent laws, is valid. The principal case is cited as authority on this point, in Preston v. Leighton, 6 Md. 97. See Graves v. Roy, 33 Am. Dec. 568.

MERE PROXIMITY IN POINT OF TIME between assignment and application for benefit of insolvent laws furnishes no criterion of insolvent's intention at the time of executing the assignment: Syester v. Brewer, 27 Md. 97, cites the principal case to this effect.

DENIAL UPON OATH IN ANSWER puts complainant upon proof. In Metho dist P. C. v. Mayor etc. of Baltimore, 48 Am. Dec. 540, it is held that the testimony of one witness is insufficient to disprove and overrule a responsive and positive denial in the answer of a fact alleged by the complainant. In Mur ray v. Blatchford, 19 Id. 537, it is held that an uncontradicted and responsive answer denying fraud alleged in a bill will be taken as true.

THE CHANCELLOR'S DECREE, from which the principal case is an appeal, will be found reported in 1 Maryland Chancery Decisions, 172.

WOOLLEN'S EX'RS v. HILLEN'S EX'R.

[9 GILL, 185.]

PAROL EVIDENCE IS INADMISSIBLE TO VARY, CONTRADICT, or Render VODD A DEED, where there is no fraud.

SIMULTANEITY OF RELEASE OF ONE MORTGAGE AND GIVING ANOTHER on the same property to the same mortgagee does not avoid the loss of the first mortgage lien by the release.

EQUITY WILL COERCE PRIOR INCUMBRANCER HAVING LIEN ON TWO DISTINCT FUNDS, upon one of which a subsequent mortgagee has a lien, to resort to that fund on which the subsequent mortgagee has no lien.

EQUITY WILL NOT MARSHAL ASSETS AGAINST PRIOR MORTGAGEE obtaining his twofold lien from two mortgagors, one being surety for the other, the subsequent mortgagee having a lien on the principal's estate only. THIS is an appeal from an order in equity allowing priority in payment to a mortgage held by testator of appellee. The testimony of McCulloh, referred to by the court, was that the sum due on the said mortgage was not paid at the date of its release, but that the transaction of releasing one mortgage and simultaneously giving another to the same effect was for the purpose of transferring the mortgage lien of Hillen and Brice to Hillen as a matter of business convenience. The other facts are sufficiently stated in the opinion.

William F. Frick and Thomas S. Alexander, for the appellants. T. P. Scott, for the appellee.

By Court, SPENCE, J. The prominent facts in this case, and those upon which it must be decided, are as follows: On the twenty-seventh day of July, 1826, Tschudy executed a mortgage to Hillen and Brice to secure the payment of certain sums of money. This mortgage to Hillen and Brice, included only a part of the land owned by Tschudy in Baltimore county. On the second of June, 1827, Tschudy and wife executed a mortgage to Mary Kurtz, to secure the payment of one thousand dollars. This mortgage included the ninety acres of land in Baltimore county, and certain lots of ground in Baltimore city, which belonged to the wife of Tschudy. On the seventeenth day of June, 1828, a similar mortgage was executed by Tschudy, on the same real estate, to House, Woollen & Co. On the twentieth day of August, 1829, Hillen and Brice, by their deed, regularly executed and acknowledged, released their mortgage of the twenty-seventh of July, 1826, and on the same day the deed of release was executed by Hillen and Brice to Tschudy, Tschudy executed to Hillen a mortgage of the same land which had been thus released to him by Hillen and Brice. In the year 1830, the mortgagees Kurtz and Woollen, and others, executed a deed of release of the city lots which had been included in their mortgages. The land included in Hillen's mortgage, lying in Baltimore county, has been sold under a decree passed in this case, on a bill filed by the executors of Woollen, and the question is, Which of the mortgagees is entitled to priority, or to be first paid out of the fund?

This question necessarily brings up for consideration and decision, the effect and operation of the deed of release of the

twentieth day of August, 1829, of the mortgage of the twentyseventh of July, 1826, from Hillen and Brice to Tschudy. On the part of the appellants, it is insisted that this deed was an entire and absolute release on the part of Hillen and Brice, of their lien under the mortgage of 1826, and consequently deprived them of any priority. This conclusion is denied on the part of the appellees, and they insist that the deed of release of 1829, when taken in connection with the parol testimony of McCulloh, can not in equity have the operation and effect to deprive Hillen of his priority upon the fund in question. McCulloh's testimony out of the case, and there could be no question as to the operation and effect of Hillen's and Brice's deed of release.

It may be conceded, that there are many decisions in which courts both of law and equity have determined, that receipts in deeds are only prima facie evidence of payment, and that parol evidence is admissible to contradict such receipts, but we have never yet seen the decision, fraud out of the question, which went so far as to decide that parol evidence was admissible to vary, contradict, and render utterly void a solemn deed.

On what other imaginable ground can it be insisted in this case that Hillen is the prior incumbrancer? If he had never secured any lien before the mortgage of 1829, it could not be said that his lien was prior to Kurtz's mortgage of 1827, and if the release of 1829 released his lien of 1826, his lien arises under the mortgage of 1829, more than two years subsequent to Kurtz's deed of 1827.

But the appellee's solicitor insisted in the argument, that the deed of release and the mortgage of 1829, having been executed simultaneously, Hillen did not thereby lose his priority as incumbrancer, and cases of dower, in which courts have adjudged that in cases of instantaneous seisin, where the husband had or took no beneficial interest, the widow was not dowable, were referred to. We think such cases are clearly distinguishable from the one under consideration. In the former cases, there never was any such estate in the husband, upon which the widow's right of dower could attach; in this case there was a lien under the mortgage to Kurtz of 1827, subject to be defeated only by Hillen's prior mortgage of 1826, and if the lien of Hillen's mortgage of 1826 was released by his deed of 1829, we can see no ground upon which Kurtz's priority can be defeated.

It is insisted by the appellee's solicitor, that if the court should consider that the appellee lost his priority, by the ar

rangement of the twentieth of August, 1829, yet he is still entitled to priority of payment out of the sales of the mill-seat over the appellants, "because the appellants had two securities or sources of payment to look to, viz., the mill-seats and the city lots, whereas the appellant could only look to the mill-seat for payment of his claim."

It must be borne in mind that the city lots were the property of Tschudy's wife, and that Hillen was not a creditor of Mrs. Tschudy, and had no claim upon them as a creditor. The doctrine seems to be well settled in courts of equity, that where there are two mortgagees under separate and distinct mortgages, and one and the same mortgagor, and the prior mortgagee has a lien on two distinct funds or estates, and the second has a lien on one only of these funds or estates, that courts of equity will coerce the prior incumbrancer to resort to that fund for the satisfaction of his lien, on which the subsequent mortgagee has no lien, and this for the protection of the subsequent incumbrancer.

This case now under consideration differs in an essential particular from the one supposed. In this case the prior mortgagee, Kurtz, had a lien on two separate and distinct estates of two separate and distinct mortgagors, and the subsequent mortgagee held in lien on one only of the estates incumbered by the prior mortgagee, and the estate released by the prior mortgagee was the estate on which the subsequent mortgagee had no lien, it being the estate of Tschudy's wife. If the prior mortgagee, Kurtz, foreclose his mortgage on the estate of Mrs. Tschudy by sale, a court of equity, considering her as a security of her husband, would substitute her to Kurtz's equities on the estate of her husband, and thereby exclude the subsequent mortgagee: Vide 2 Story's Eq. Jur., sec. 1373.

The orders of the court in this case, of the second of March, 1849, and the twenty-ninth of March, 1849, are reversed with costs to the appellants, and the case remanded.

Orders reversed and case remanded.

PAROL EVIDENCE TO VARY TERMS OF WRITTEN CONTRACT: See Pack v. Thomas, 51 Am. Dec. 135; Rearich v. Swinehart, Id. 540, and cases cited in the notes thereto; also Union Bank v. Meeker, 50 Id. 559.

RELEASE OF MORTGAGE, EFFECT OF: See Hill v. West, 31 Am. Dec. 442. In the following cases the principal case is cited to the effect that the release of a senior mortgage lets in a junior incumbrance on the same property, although the only consideration for such release is the simultaneous execution of another mortgage to the same tenor and effect as the released mortgage.

Alderson v. Day, 6 Md. 57; Neidig v. Whiteford, 29 Id. 183; Heinsler v. Nickum, 38 Id. 276; Ahern v. White, 39 Id. 417; Drury v. Briscoe, 42 Id. 163; Boyd v. Parker, 43 Id. 203; Gardenville P. L. A. v. Walker, 52 Id. 455.

MARSHALING ASSETS, GENERAL RULE: See Cheeseborough v. Millard, 7 Am. Dec. 494; Jones v. Zollicoffer, 11 Id. 795, and note 799; Ramsey's Appeal, 27 Id. 301; Bank of Muskingum v. Carpenter, 28 Id. 616; Terry v. Woods, 45 Id. 274. The principal case is cited on this point in Watson v. Bane, 7 M‹l. 128; Johns v. Reardon and Wife, 11 Id. 470.

BAUGHER ET AL. v. NELSON.

[9 GILL, 299.]

GENERAL DEMURRER BRINGS WHOLE RECORD BEFORE COURT, and judg. ment thereon will be rendered against the party whose pleadings contain the first vice or imperfection.

STATUTE OPEN TO INTERPRETATION SHOULD BE CONSTRUED TO OPERATE PROSPECTIVELY, in all cases susceptible of doubt; but this rule does not apply where legislature expressly declares its intention to make a statute retroactive.

ACT OF 1845, CHAPTER 52, declaring that any person thereafter seeking to avail himself of the statute of usury must plead it specially, and set out the sums, both principal and interest, due on the contract, reckoning interest at the rate of six per cent. per annum, is retroactive but not unconstitutional.

POWER OF COURTS TO DECLARE LEGISLATIVE ACTS UNCONSTITUTIONAL is to be exercised with the most guarded circumspection and care. THOSE ASSAILING STATUTE ON GROUND OF ITS INVALIDITY must make out a clear case of legislative usurpation, as it is presumed to be valid. EX POST FACTO LAW RELATES TO CRIMES, and not to private rights or civil remedies.

RETROACTIVE STATUTE DIVESTING VESTED RIGHTS IS NOT UNCONSTITUTIONAL for that reason necessarily.

BILL OF RIGHTS OF THIS STATE, ARTICLE 15, though prohibiting passage of ex post facto laws, recognizes the right of the legislature to pass retrospective laws relating to civil cases and contracts.

ACT OF 1845 REGULATES REMEDIES upon usurious contracts, and does not divest vested rights.

RELIEF UPON USURIOUS CONTRACT AT LAW OR EQUITY, when sought by the borrower, will be administered only as to the surplus above the principal and lawful interest.

BORROWER IS ALWAYS UNDER MORAL OBLIGATION TO PAY SUM LOANED with legal interest thereon.

MORAL OBLIGATION OF BORROWER ON USURIOUS CONTRACT can not be enforced by courts when he is before them in the position of defendant. Legislative AUTHORITY OVER REMEDIES may be exercised at pleasure over past or future contracts.

ACT OF 1845 IS MERELY REMEDIAL, obliging the borrower seeking relief as defendant against a usurious contract to do the same as he is obliged to do when seeking relief as plaintiff.