MARAUDER. One who, while employed in the army as a soldier, commits a larceny or robbery in the neighborhood of the camp, or while wandering away from the army. Merl. Repert. h. t.
MARC-BANCO. The name of a coin. The marc-banco of Hamburg, as money of account, at the custom-house, is deemed and taken to be of the value of thirty-five cents. Act of March 3, 1843.
MARCHES, Eng. law. This word signifies the limits, or confines, or borders. Bac. Law Tracts, tit. Jurisdiction of the. Marches, p. 246. It was applied to the limits between England and Wales or Scotland. In Scotland the term marches is applied to the boundaries between private properties.
MARETUM. Marshy ground overflowed by the sea or great rivers. Co. Litt. 5.
MARINARIUS. An ancient word which signified a mariner or seaman; in England marinarius capitaneus, was the admiral or warden of the ports.
MARINE. Whatever concerns the navigation of the sea, and forms the naval power of a nation is called its marine.
MARINE CONTRACT. One which relates to business done or transacted upon the sea and in sea ports, and over which the courts of admiralty have jurisdiction concurrent with the courts of common law; such contracts include according to civilians and jurists among other things, charter parties, affreightments, marine hypothecations, contracts for the marine service in the building, re-pairing, supplying and navigating ships; contracts and quasi contracts respec- ting averages, contributions and jettisons, and policies of insurance. 2 Gall. R. 398, where Judge Story gave a very learned opinion on the subject.
MARINE INSURANCE, contracts. A contract by which one party, for a stipulated premium, undertakes to indemnify the other, against all perils or sea risks, to which his ship; freight or cargo, or some of them, may be exposed, during a certain voyage or fixed period of time. 1 Bouv. Inst. n. 1175, et seq. See Insurance Marine.
MARINE INTEREST, contracts. A compensation paid for the use and risk of money loaned on respondentia and bottomry; provided the money be loaned and put in risk, there is no limit as to the amount which may be lawfully charged by the lender. 2 Marsh. Ins. 749; Hall on Mar. Loans; Pothier, Pret a. la Grosse, n. 19; 1 Stuart's (L. C.) R. 130.
MARINE LEAGUE. A measure equal to the twentieth part of a degree. Bouch. Inst. n. 1845, not. Vide Cannon Shot; Sea.
MARINER. One whose occupation is to navigate vessels on the sea. Vide Seamen Shipping articles.
2. By act of congress, 1 Story, Laws of U. S., ch. 56, s. 4, p. 109, it is provided, that no sum exceeding one dollar shall be recovered from any seaman or mariner (in the merchant service,) by any person, for any debt contracted during the time such seaman or mariner shall actually belong to any ship or vessel, until the voyage for which such seaman or mariner engaged, shall be ended.
MARITAGIUM. Anciently that portion which was given with a daughter in marriage.
2. During the existence of the feudal law, it was the right which the lord of the fee had, under certain tenures, to dispose of the daughters of his vassal in marriage. By this word was also understood marriage. Beames' Glanv. 138, n; Bract. 21 a; Spelm. Gl. ad voc.; 2 Bl. Com. 69; Co. Litt. 21 b, 76 a.
MARITAL. That which belongs to marriage; as marital rights, marital duties.
2. Contracts made by a feme sole with a view to deprive her intended husband of his marital rights, with respect to her property, are a fraud upon him, and may be set aside in equity. By the marriage, the husband assumes the duty of paying her debts, contracted previous to the coverture, and of supporting her during its existence; and he cannot, therefore, be fraudulently deprived, by the intended wife, of those rights which enable him to perform the duties which attach to him. 2 Cha. R. 42; Newl. Contr. 424; 1 Vern. 408; 2 Vern. 17; 2 P. Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves. jr. 22; 2 Cox, R. 28; 2 Beav. 528; 2 Ch. R. 81; White's. L. C. in Eq. *277; 1 Hill, Ch. R. 1, 4; 13 Maine, R. 124; 1 McMull. Eq. R. 237 3 Iredell's Eq. R. 487; 4 Wash. C. C. R. 224.
MARITAL PORTION. In Louisiana, this name is given to that part of a deceased husband's estate, to which the widow is entitled. Civil Code, 334, art. 55; 3 Mart. N. S. 1.
MARITIME. That which belongs to or is connected with the sea.
MARITIME CAUSE. Maritime causes are those arising from maritime contracts, whether made at sea or on land, that is, such as relate to the commerce, business or navigation of the sea; as, charter parties, affreightments, marine loans, hypothecations, contracts for maritime service in building, repairing, supplying and navigating ships, contracts and quasi contracts respecting averages, contributions and jettisons; contracts relating to marine insurance, and those between owners of ships. 3 Bouv. Inst. n. 2621.
2. There are maritime causes also for torts and injuries committed at sea.
3. In general, the courts of admiralty have a concurrent jurisdiction with courts of law, of all maritime causes: and in some cases they have exclusive jurisdiction.
MARITIME CONTRACT. One which relates to the navigation of the sea. 2. The admiralty has jurisdiction in case of the breach of such contract, whether it has been entered into on land or at sea. 4 Wash. C. C. R. 453; see 2 Gallis. 465; 2 Sumn. 1; Gilp. 529.
MARITIME LAW. That system of law which relates to the affairs of the sea, such as seamen, ships, shipping, navigation, and the like.
MARITIME LOAN. A contract or agreement by which one, who is the lender, lends to another, who is the borrower, a certain sum of money, upon condition that if the thing upon which the loan has been made, should be lost by any peril of the sea, or vis major, the lender shall not be repaid, unless what remains shall be equal to the sum borrowed; and if the thing arrive in safety, or in case it shall not have been injured, but by its own defects or the fault of the master or mariners, the borrower shall be bound to return the sum borrowed, together with a certain sum agreed upon as the price of the hazard incurred. Emer. Mar. Loans, c. 1, s. 2; Poth. h. t. Vide Bottomry; Gross Adventure; Interest, maritime; Respondentia.
MARITIME PROFIT, mar. law. The French writers use the term maritime profit to signify any profit derived from a maritime lean. Vide Interest maritime.
MARK. This term has several acceptations. 1. It is a sign traced on paper or parchment, which stands in the place of a signature, usually made by persons who cannot write. 2 Cart. R. 324; M. & M. 516; 12 Pet. 150; 7 Bing. 457; 2 Ves. 455; 1 V. & B. 362; 1 Ves., jr. 11. A mark is now held to be a good signature, though the party was able to write. 8 Ad. & El. 94; 3 Nev. & Per. 228; 3 Curt. 752; 5 John. 144. Vide Subscription.
2. - 2. It is the sign, writing or ticket put upon manufactured goods to distinguish them from others. Poph. R. 144; 3 B & C. 541; 2 Atk. R. 485; 2 V. & B. 218; 3 M. & C. 1; Ed. Inj. 814. Vide Trade Marks.
3. - 3. Mark or marc, denotes a weight used in several parts of Europe, and for several commodities, especially gold and silver. When gold and silver are sold by the mark, it is divided into twenty-four carats.
4. - 4. Mark is also in England a money of accounts, and in some other countries a coin. The English marc is two-thirds of a pound sterling, or 13s. 4d., and the Scotch mark is of equal value in Scotch money of account. Encyc. Amer. h. t.
MARKET. A public place appointed by public authority, where all sorts of things necessary for the subsistence, or for the conveniences of life, are sold.
2. Markets are generally regulated by local laws.
3. By the term market is also understood the demand there is for any particular article; as, the cotton market in Europe is dull. Vide 15 Vin. Ab. 42; Com. Dig. h. t.
MARKET OVERT, Engl. law. Market overt is an open or public market; that is, a place appointed by law or custom for the sale of goods and chattels at stated times in public.
2. In London, every day except Sunday, is market day. In the country, particular days are fixed for market days. 2 Bl. Com. 449.
3. It is a general rule that sales of vendible articles made in market overt, are good not only between the parties, but are also binding on all those who have any property or right therein. Id. 2 Chitt. Com. Law, 148 to 154; Com. Dig. Market, E; Bac. Abr. Fairs and Market, E; 5 B. & A. 624; Dane's Abr. chap. 45, a 2.
4. There is no law recognizing the effect of a sale in market overt in Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130; in New York; 1 Johns, 480; in Massachusetts; 8 Mass. R. 521; 14 Mass. R. 500; in Ohio; 5 Ohio, R. 203; nor in Vermont. 1 Tyl. R. 341; nor indeed in any of the United States. 10 Pet. 161.
MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52 Hen. III, A. D. 1267, so called because it was enacted at Marlebridge. Barr. on Stat. 58.
MARQUE AND REPRISAL. The name given to a commission granted by the supreme power of a state to a private person for the purpose of seizing the property of a foreign state or its subjects. Wheat. Law of Nations, 340. Vide Letters of Marque.
MARRIAGE. A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought io exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1; Shelford on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to contract, Able to contract, and have actually contracted.
3. - 1. They must be willing to contract. Those persons, therefore, who have no legal capacity in point of intellect, to make a contract, cannot legally marry, as idiots, lunatics, and infant; males under the age of fourteen, and females under the age of twelve, and when minors over those ages marry, they must have the consent of their parents or guardians.
4. There is no will when the person is mistaken in the party whom he intended to marry; as, if Peter intending to marry Maria, through error or mistake of person, in fact marries Eliza; but an error in the fortune, as if a man marries a woman whom he believes to be rich, and he finds her to be poor; or in the quality, as if he marry a woman whom he took to be chaste, and whom he finds of an opposite character, this does not invalidate the marriage, because in these cases the error is only of some quality or accident, and not in the person. Poynt. on Marr. and Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear that there is no consent; it is, therefore, void ab initio, and may be treated as null by every court in which its validity may incidentally be called in question. 2 Kent, Com. 66; Shelf. on Marr. and Div. 199; 2 Hagg. Cons. R. 246; 5 Paige, 43.
6. - 2. Generally, all persons who are of sound mind, and have arrived to years of maturity, are able to contract marriage. To this general rule, however, there are many exceptions, among which the following may be enumerated.
7. - 1. The previous marriage of the party to another person who is still living.
8. - 2. Consanguinity, or affinity between the parties within the prohibited degree. It seems that persons in the descending or ascending line, however remote from each other, cannot lawfully marry; such marriages are against nature; but when we come to consider collaterals, it is not so easy to fix the forbidden degrees, by clear and established principles. Vaugh. 206; S. C. 2 Vent. 9. In several of the United States, marriages within the limited degrees are made void by statute. 2 Kent, Com. 79; Vide Poynt. on Marr. and Div. ch. 7.
9. - 3. Impotency, (q. v.) which must have existed at the time of the marriage, and be incurable. 2 Phill. Rep. 10; 2 Hagg. Rep. 832.
10. - 4. Adultery. By statutory provision in Pennsylvania, when a person is convicted of adultery with another person, or is divorced from her husband, or his wife, he or she cannot afterwards marry the partner of his or her guilt. This provision is copied from the civil law. Poth. Contr. de Mariage, part 3, c. 3, art. 7. And the same provision exists in the French code civil, art. 298. See 1 Toull. n. 555.
11. - 3. The parties must not only be willing and able, but must have actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentium, that consent is all that is needful by natural or public law. If the contract be made per verba de presenti, or if made per verba de futuro, and followed by consummation, it amounts to a valid marriage, and which the parties cannot dissolve, if otherwise competent; it is not necessary that a clergyman should be present to give validity to the marriage; the consent of the parties may be declared before a magistrate, or simply before witnesses; or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or public prosecutions for bigamy. 1 Silk. 119; 4 Burr. 2057; Dougl. 171; Burr. Settl. Cas. 509; 1 Dow, 148; 2 Dow, 482; 4 John. 2; 18 John. R. 346; 6 Binn, 405; 1 Penn. R. 452; 2 Watts, R. 9. But a promise to marry at a future time, cannot, by any process of law, be converted into a marriage, though the breach of such promise will be the foundation of an action for damages.
13. In some of the states, statutory regulations have been made on this subject. In Maine and Massachusetts, the marriage must be made in the presence, and with the assent of a magistrate, or a stated or ordained minister of the gospel. 7 Mass. Rep. 48; 2 Greenl. Rep. 102. The statute of Connecticut on this subject, requires the marriage to be celebrated by a clergyman or magistrate, and requires the previous publication of the intention of marriage, and the consent of parents; it inflicts a penalty on those who disobey its regulations. The marriage, however, would probably be considered valid, although the regulations of the statutes had not been observed. Reeve's Dom. Rel. 196, 200, 290. The rule in Pennsylvania is, that the marriage is valid, although the directions of the statute have not been observed. 2 Watts, Rep. 9; 1 How. S. C. R. 219. The same rule probably obtains in New Jersey; 2 Halsted, 138; New Hampshire; 2 N. H. Rep. 268; and Kentucky. 3 Marsh. R. 370. In Louisiana, a license must be obtained from the parish judge of the parish in which at least one of the parties is domiciliated, and the marriage must be celebrated before a priest or minister of a religious sect, or an authorized justice of the peace; it must be celebrated in the presence of three witnesses of full age, and an act must be made of the celebration, signed by the person who celebrated the marriage, by the parties and the witnesses. Code, art. 101 to 107. The 89th article of the Code declares, that such marriages only are recognized by law, as are contracted and solemnized according to the rules which it prescribes. But the Code does not declare null a marriage not preceded by a license, and not evidenced by an act signed by a certain number of witnesses and the parties, nor does it make such an act exclusive evidence of the marriage. The laws relating to forms and ceremonies are directory to those who are authorized to celebrate marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would, in general, be held good in this country, unless when it would work injustice, or be contra bonos mores, or be repugnant to the settled principles and policy of our laws. Story, Confl. of Laws, 87; Shelf. on M. & D. 140; 1 Bland. 188; 2 Bland. 485; 3 John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure till the death of one of the contracting parties. It is dissolved by death or divorce.
16. In some cases, as in prosecutions for bigamy, by the common law, an actual marriage must be proved in order to convict the accused. See 6 Conn. R. 446. This rule is much qualified. See Bigamy.
17. But for many purposes it may be proved by circumstances; for example, cohabitation; acknowledgment by the parties themselves that they were married; their reception as such by their friends and relations; their correspondence, on being casually separated, addressing each other as man and wife; 2 Bl. R. 899; declaring, deliberately, that the marriage took place in a foreign country; 2 Moo. & R. 503; describing their children, in parish registers of baptism, as their legitimate offspring; 2 Str. 1073; 8 Ves. 417; or when the parties pass for husband and wife by common reputation. 1 Bl. R. 639; S. C. 4 Burr. 2057; Dougl. 174; Cowp. 594; 3 Swans. R. 400; 8 S. & R. 159; 2 Hayw. R. 3; 1 Taylor, R. 121; 1 H. & McH. 152; 2 N. & McC. 114; 5 Day, R. 290; 4 R. & M. 507; 9 Mass. R. 414; 4 John. 52; 18 John. 346. After their death, the presumption is generally conclusive. Cowp. 591; 6 T. R. 330.
18. The civil effects of marriage are the following: 1. It confirms all matrimonial agreements between the parties.
19. - 2. It vests in the husband all the personal property of the wife, that which is in possession absolutely, and choses in action, upon the condition that he shall reduce them to possession; it also vests in the husband right to manage the real estate of the wife, and enjoy the profits arising from it during their joint lives, and after her death, an estate by the curtesy when a child has been born. It vests in the wife after the husband's death, an estate in dower in the husband's lands, and a right to a certain part of his personal estate, when he dies intestate. In some states, the wife now retains her separate property by statute.
20. - 3. It creates the civil affinity which each contracts towards the relations of the other.
21. - 4. It gives the husband marital authority over the person of his wife.
22. - 5. The wife acquires thereby the name of her husband, as they are considered as but one, of which he is the head: erunt duo in carne unÉ.
23. - 6. In general, the wife follows the condition of her husband.
24. - 7. The wife, on her marriage, loses her domicil and gains that of her husband.
25. - 8. One of the effects of marriage is to give paternal power over the issue.
26. - 9. The children acquire the domicil of their father.
27. - 10. It gives to the children who are the fruits of the marriage, the rights of kindred not only with the father and mother, but all their kin.
28. - 11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h. t.; Com. Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr. 194; Ayl. Parergon, 359; 1 Bro. Civ. Law, 94; Rutherf. Inst. 162; 2 Supp. to Ves. jr. 334; Roper on Husband & Wife; Poynter on Marriage and Divorce; Merl. Räpert. h. t.; Pothier, TraitÇ du Contrat de Marriage; Toullier, h. t.; Chit. Pract. Index, h. t.; Dane's Ab. Index, h. t., Burge on the Confl. of Laws, Index, h. t.; Bouv. Inst. Index, h. t.
MARRIAGE BROKAGE. By this expression is meant the act by which a person interferes, for a consideration to be received by him, between a man and a woman, for the purpose of promoting a marriage between them. The money paid for such service is also known by this name.
2. It is a doctrine of the courts of equity that all marriage brokage contracts are utterly void, as against public policy; and are, therefore, incapable of confirmation. 1 Fonb. Eq. B. 1, ch. 4, s. 10, note a; 1 Story, Eq. Jur. 263; Newl. on Contr. 469.
MARRIAGE PORTION. That property which is given to a woman on her marriage. Vide Dowry.
MARRIAGE, PROMISE OF. A promise of marriage is a contract entered into between a man and woman that they will marry each other.
2. When the promise is made between persons competent to contract matrimony, an action lies for a breach of it. Vide Promise of Marriage.
MARRIAGE SETTLEMENT. An agreement made by the parties in contemplation of marriage by which the title to certain property is changed, and the property to some extent becomes tied up, and is rendered inalienable. Rice's Eq. R. 315. See 2 Hill, Ch. R. 3; Ril. Ch. Cas. 76; 8 Leigh, 29; 1 Dev. & Bat. Eq. 389; 2 Dev. & Bat. Eq. 103; 1 Bald. 344; 15 Mass. 106; 1 Yeates, 221; 7 Pet. 348; 4 Bouv. Inst. n. 3947. Vide Settlement, Contracts.
MARSHAL. An officer of the United States, whose duty it is to execute the process of the courts of the United States. His duties are very similar to those of a sheriff.
2. It is enacted by the act to establish the judicial courts of the United States, 1 Story's L. U. S. 53, as follows:
27. That a marshal shall be appointed, in and for each district, for the term of four years, but shall be removable from office at pleasure whose duty it shall be to attend the district and circuit courts, when sitting therein, and also the supreme court in the district in which that court shall sit: and to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint, as there shall be occasion, one or more deputies, who shall be removable from office by the judge of the district court, or the circuit court sitting within the district, at the pleasure of either. And before he enters on the duties of his office, he shall become bound for the faithful performance of the same, by himself and by his deputies, before the judge of the district court, to the United States jointly and severally, with two good and sufficient sureties, inhabitants and freeholders of such district, to be approved by the district judge, in the sum of twenty thousand dollars, and shall take before said judge, as shall also his deputies, before they enter on the duties of their appointment, the following oath of office: "I, A B, do solemnly swear or affirm, that I will faithfully execute alI lawful precepts directed to the marshal of the district of________under the authority of the United States, and true returns make; and in all things well and truly, and without malice or partiality, perform the duties of the office of marshal (or marshal's deputy, as the case may be) of the district of _________ during my continuance in said office, and take only my lawful fees. So help me God."
3. - 28. That in all causes wherein the marshal, or his deputy, shall be a party, the writs and precepts therein shall be directed to such disinterested person, as the court, or any justice or judge thereof may appoint, and the person so appointed is hereby authorized to execute and return the same. And in case of the death of any marshal, his deputy or deputies, shall continue in office unless otherwise specially removed; and shall execute the same in the name of the deceased, until another marshal shall be appointed and sworn: And the defaults, or misfeasances in office of such deputy or deputies in the mean time, as well as before, shall be adjudged a breach of the condition of the bond given, as before directed, by the marshal who appointed them; and the executor or administrator of the deceased marshal, shall have like remedy for the defaults and misfeasances in office of such deputy or deputies during such interval, as they would be entitled to if the marshal had continued in life, and in the exercise of his said office, until his successor was appointed, and sworn or affirmed: And every marshal, or his deputy, when removed from office, or when the term for which the marshal is appointed shall expire, shall have power, notwithstanding, to execute all such precepts as may be in their hands, respectively, at the time of such removal or expiration of office; and the marshal shall be held answerable for the delivery to his successors of all prisoners which may be in his custody at the time of his removal, or when the term for which he is appointed shall expire, and for that purpose may retain such prisoners in his custody, until his successor shall be appointed, and qualified as the law directs.
4. By the act making certain alterations in the act for establishing the judicial courts, &c. passed June 9, 1794, 1 Story's L. U. S. 865, it is enacted,
7. That so much of the act to establish the judicial courts of the United States, as is, or may be, construed to require the attendance of the marshals of all the districts at the supreme court, shall be, and the same is hereby repealed: And that the said court shall be attended, during its session, by the marshal of the district only, in which the court shall sit, unless the attendance of the marshals of other districts shall be required by special order of the said court.
5. The act of February 28, 1795, 1 Story's L. U. S. 391, directs,
9. That the marshals of the several districts, and their deputies, shall have the same powers, in executing the laws of the United States, as sheriffs and their deputies, in the several states, have by law in executing the laws of the respective states.
6. There are various other legislative provisions in relation to the duties and rights of marshals, which are here briefly noticed with reference to the laws themselves.
7. - 1. The act of May 8, 1792, s. 4, provides for the payment of expenses incurred by the marshal in holding the courts of the United States, the payment of jurors, witnesses, &c.
8. - 2. The act of April 16, 1817, prescribes the duties of the marshal in relation to the proceeds of prizes captured by the public armed ships of the United States and sold by decree of court.
9. - 3. The resolution of congress of March 3, 1791; the act of February 25, 1799, s. 5; and the resolution of March 3, 1821; all relate to the duties of marshals in procuring prisons, and detaining and keeping prisoners.
10. - 4. The act of April 10, 1806, directs how and for what, marshals shall give bonds for the faithful execution of their office.
11. - 5. The act of September 18, 1850, s. 5, prescribes the duties of the marshal in relation to obeying and executing all warrants and precepts issued under the provisions of this act, and the penalties he shall incur for refusing to receive and execute the said warrants when rendered, and for permitting the fugitive to escape after arrest, Vide Story's L. U. S. Index, h. t.; Serg. Const. Law, ch. 25; 2 Dall. 402; United States v. Burr, 365; Mason's R. 100; 2 Gall. 101; 4 Cranch, 96; 7 Cranch, 276; 9 Cranch, 86, 212; 6 Wheat. 194; 9 Wheat. 645; Minot, Stat. U. S. Index, h. t.
MARSHALLING SECURITIES, equity. When a party has two funds by which his debt is secured, and another creditor has a claim only on one of these funds, a court of equity will compel the creditor having a double security to resort to that fund which will leave the other creditor his security, this is called marshalling assets. 4 Bouv. Inst. n. 3788; 1 Story, Eq. Jur. 633 Amb. 91; 8 Ves. 389; 9 Ves. 209.
2. Marshalling of assets respects two different funds, and two different sets of parties, where one set can resort to either fund, the other only to one. It is grounded on obvious equity. It does no prejudice to anybody, and it effectuates the testator's intent. It takes place in favor of simple contract creditors, and of legatees, devisees and heirs, and in a few other cases, but not in favor of the next of kin. 4 Bro. C. C. 411; 1 P. Wms. 680.
3. The cases in which a court of equity marshals real and personal assets for the payment of simple contract debts and legacies, may be classed as follows: 1. Where there are specialty and simple contract debts and legacies and lands left to descend. In this case if the specialty creditors take a satisfaction for their debts out of the personal estate, the simple contract creditors first, and then the legatees, shall stand in the place of the specialty creditors, for obtaining satisfaction out of the lands, to the amount of so much as was received by the specialty creditors out of the personal estate.
4. - 2. Where there are specialty and simple contract debts, and lands are specifically devised. In this case if the creditors take a satisfaction for their debts out of the personal estate, the simple contract creditors shall stand in the place of the specialty creditors for obtaining a satisfaction out of the lands to the amount of so much as was received by the specialty creditors out of the personal estate, but then there can be no relief for the legatees, because there is as much equity to support the, specific devise of the lands, as to support the bequest of the legatees.
5. - 3. Where the debts are charged upon the lands. Here the legatees shall have the personal estate towards their satisfaction, and if the creditors take it in payment or towards the discharge of their debts, the legatees shall stand in their place pro tanto to have a discharge out of the lands.
6. - 4. When simple contract debts and legacies are both charged on the land. In this case the land shall be sold and all paid equally. 1 Madd. Ch. Pr. 617.
MARSHALSEA, English law. The name of a prison belonging to the court of the king's bench.
MARTIAL LAW. Vide Law Martial.
MARYLAND. One of the original states of the United States of America. The province of Maryland was included in the patent of the Southern or Virginia company; and upon the dissolution of that company, it reverted to the crown. Charles the First, on the 20th of June, 1632, granted it by patent to Lord Baltimore. Under this charter Maryland continued to be governed, with some short intervals of interruption, down to the period of the American Revolution, by the successors of the original proprietor. 1 Chalmer's Annals, 203.
2. Upon the revolution of 1688, the government of Maryland was seised into the hands of the crown, and was not again restored to the proprietary until 1716; from that period no alteration occurred until the American Revolution. Bacon's Laws of Maryland, 1692, 1716.
3. The original constitution of this state was adopted on the 14th day of August, 1776. The present constitution was adopted in 1851.
4. The powers of the government are distributed into the legislative, the executive, and the judicial.
5. - 1st. The legislature shall consist of two distinct branches, a senate and a house of delegates, which shall be styled "The general assembly of Maryland." Art. III. s. 1.
6. - 2. The general assembly shall meet on the first Wednesday of January, 1852, on the same day, in the year 1853, and on the same day, 1854, and on the same day in every second year thereafter, and at no other time, unless convened by the proclamation of the governor. Art. III. s. 7.
7. - 3. The senate will be considered with reference to the qualification of the electors; the qualification of the members; the length of time for which they are elected; and the time of their election. 1. Every free white male person of twenty-one years of age or upwards, who shall have been one year next preceding the election a resident of the state, and for six months a resident of the city of Baltimore, or of any county in which he may offer to vote, and being at the time of the election, a citizen of the United States, shall be entitled to vote in the ward or election district in which he re-sides, in all elections hereafter to be held; an& at all such elections the vote shall be taken by ballot. And in case any county or city shall be so divided as to form portions of different electoral districts for the election of congressmen, senator, delegate or other officer or officers, then to en-title a person to vote for such officer, he must have been a resident of that part of the county or city which shall form a part of the electoral district in which he offers to vote for six months next preceding the election: but a person who shall have acquired a residence in such county or city, entitling him to vote at any such election, shall be entitled to vote in the election district from which he remoted, until he shall have acquired a residence in the part of the county or city to which he has removed. Art. I. s. 1. 2. No person shall be eligible as a senator who at the time of his election is not a citizen of the United States, and who bas not resided at least three years next preceding the day of his election, in this state, and the last year thereof in the county or city which he may be chosen to represent, if such county or city shall have been so long established, and if not, then in the county from which, in whole or in part, the same may have been formed; nor shall any person be eligible as a senator unless he shall have attained the age of twenty-five years. No member of congress, or person bolding any civil or military office under the United States, shall be eligible as a senator; and if any person, after his election as a senator, be elected to congress, or be appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall vacate his seat. No minister or preacher of the gospel of any denomination, and no person holding any civil office of profit or trust under the state, except justices of the peace, shall be eligible as senator. Art. III. ss. 9, 10, 11. 3. Every county of the state, and the city of Baltimore, shall be entitled to elect one senator, who shall serve for four years from the day of their election. The first election shall take place on the first Wednesday of November, 1851, and an election for one-half the senators, as nearly as practicable, shall be held on the same day every second year thereafter. Art. III. 2, 3, 4, 5.
8. - 4. The house of delegates will be treated of in the same manner which has been observed in considering the senate. 1. The electors are qualified in the same manner as the electors of the senate. 2. No person shall be a delegate who shall not have attained the age of twenty-one years; the other qualifications are the same as those for a senator. 3. The whole number of delegates shall never exceed eighty, nor be less than sixty-five, and shall be apportioned among the several counties according to the population of each, the city of Baltimore to have four more delegates than the most populous county; no county to have less than two delegates, the apportionment to be made after the returns of the national census in 1860 are published, and in like manner after each subsequent census. They are to serve two years from the day of their election, which takes place on the same day as that for senators.
9. - 1. The executive power of the state shall be vested in a governor, whose term of office shall commence on the second Wednesday of January next ensuing his election, and continue for four years, and until his successor shall have qualified.
10. - 2. The first election for governor under this constitution shall be held on the first Wednesday of November, in the year eighteen hundred and fifty-three, and on the same day and month in every fourth year thereafter, at the places of voting for delegates to the general assembly, and every person qualified to vote for delegates shall be qualified, and entitled to vote for governor; the election to be held in the same manner as the election of dele-gates, and the returns thereof, under seal, to be addressed to the speaker of the house of delegates, and enclosed and transmitted to the secretary of state, and delivered to the said speaker at the commencement of the session of the legislature next ensuing said election.
11. - 3. The speaker of the house of delegates shall then open the said returns in the presence of both houses, and the person having the highest number of votes, and being constitutionally eligible, shall be the governor, and shall qualify in the manner herein prescribed, on the second Wednesday of January next ensuing his election, or as soon thereafter as may be practicable.
12. - 4. If two or more persons shall have the highest and an equal number of votes, one of them shall be chosen governor by the senate and house of delegates; and all questions in relation to the eligibility of governor, and to the returns of said election, and to the number and legality of votes therein given, shall be determined by the house of delegates. And if the person or persons having the highest number of votes be ineligible, the governor shall be chosen by the senate and house of delegates. Every election of governor, by the legislature, shall be determined by a joint majority of the senate and house of delegates, and the vote shall be taken viva voce. But if two or more persons shall have the highest and an equal number of votes, then a second vote shall be taken, which shall be confined to the persons having an equal number; and if the votes should again be equal, then the election of governor shall be determined by lot between those who shall have the highest and an equal number on the first vote.
13. - 5. The state shall be divided into three districts. St. Mary's, Charles, Calvert, Prince George's, Anne Arundle, Montgomery, and Howard counties, and the city of Baltimore to be the first; the eight counties of the Eastern shore to be the second; and Baltimore, Harford, Frederick, Washington, Allegany, and Carroll counties, to be the third. The governor, elected from the third district in October last, shall continue in office during the term for which he was elected. The governor shall be taken from the first district, at the first election of governor under this constitution; from the second district at the second election, and from the third district at the third election, and in like manner, afterwards, from each district, in regular succession.
14. - 6. A person to be eligible to the office of governor, must have attained the age of thirty years, and been for five years a citizen of the United States, and for five years next preceding his election a resident of the state, and for three years a resident of the district from which he was elected.
15. - 7. In case of the death or resignation of the governor, or of his removal from the state, the general assembly, if in session, or if not, at their next session, shall elect some other qualified resident of the same district, to be the governor for the residue of the term for which the said governor had been elected.
16. - 8. In case of any vacancy in the office of governor during the recess of the legislature, the president of the senate shall discharge the duties of said office till a governor is elected as herein provided for; and in case of the death or resignation of said president, or of his removal from the state, or of his refusal to serve, then the duties of said office shall, in like manner, and for the same interval, devolve upon the speaker of the house of dele-gates, and the legislature may provide by law for the case of impeachment or inability of the governor, and declare what person shall perform the executive duties during such impeachment or inability; and for any vacancy in said office, not herein provided for, provision may be made by law, and if such vacancy should occur without such provision being made, the legislature shall be convened by the secretary of state for the purpose of filling said vacancy.
17. - 9. The governor shall be commander-in-chief of the land and naval forces of the state, and may call out the militia to repel invasions, suppress insurrections, and enforce the execution of the laws; but shall not take the command in person without the consent of the legislature.
18. - 10. He shall take care that the laws be faithfully executed.
19. - 11. He shall nominate, and by and with the advice and consent of the senate, appoint all civil and military officers of the state, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office.
20. - 12. In case of any vacancy during the recess of the senate, in any office which the governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force till the end of the next session of the legislature, or till some other person is appointed to the same office, whichever shall first occur, and the nomination of the person thus a pointed during the recess, or of some other person in his place, shall be made to the senate within thirty days after the next meeting of the legislature.
21. - 13. No person, after being rejected by the senate, shall be again nominated for the same office at the same seision, unless at the request of the senate; or be appointed to the same office during the recess of the legislature.
22. - 14. All civil officers appointed be the governor and senate shall be nominated to the senate within fifty days from the commencement of each regular session of the legislature; and their term of office shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless sooner removed from office) and until their successors, respectively, qualify according to law.
23. - 15. The governor may suspend or arrest any military officer of the state for disobedience of orders, or other military offence, and may remove him in pursuance of the sentence of a court-martial; and may remove for incompetency or misconduct, all civil officers, who receive appointments from the executive for a term not succeeding two years.
24. - 16. The governor may convene the legislature, or the senate alone, on extraordinary occasions; and whenever, from the presence of an enemy or from any other cause, the seat of government shall become an unsafe place for the meeting of the legislature, he may direct their sessions to be held at some other convenient place.
25. - 17. It shall be the duty of the governor semi-annually, and oftener if he deem it expedient, to examine the bankbook, account books, and official proceedings of the treasurer anA comptroller of the state.
26. - 18. He shall, from time to time, inform the legislature of the condition of the state, and recommend to their consideration such measures as he may judge necessary and expedient.
27. - 19. He shall have power to grant reprieves and pardons, except in cases of impeachment, and in cases in which he is prohibited by other articles of this constitution, and to remit fines and forfeitures for offences against the state; but shall not remit the principal or interest of any debt due to the state, except in cases of fines and forfeitures; and before granting a nolle prosequi, or pardon, he shall give notice, in one or more newspapers, of the application made for it, and of the day on or after which his decision will be given; and in every case in which he exercises this power, he shall report to either branch of the legislature. Whenever required, the petitions, recommendations and reasons which influence his decision.
28. - 20. The governor shall reside at the seat of government, and shall receive for his services an annual salary of thirty-six hundred dollars.
29. - 21. When the public interest requires it, he shall have power to employ counsel, who shall be entitled to such compensation as the legislature may allow in each case after the services of such counsel shall have been performed.
29. - 22. A secretary of state shall be appointed by the governor, by and with the advice and consent of the senate, who shall continue in office, unless sooner removed by the governor, till the end of the official term of the governor from whom he received his appointment, and shall receive an annual salary of one thousand dollars.
30. - 23. He shall carefully keep and preserve a record of all official acts an proceedings (which may, at all times, be inspected by a committee of either branch of the legislature,) and shall perform such other duties as may be prescribed by law or as may properly belong to his office.
31. - 3d. The judicial power of this state shall be vested in a court of appeals, in circuit courts, in such courts for the city of Baltimore as may be hereinafter prescribed, and in justices of the peace.
32. - 2. The court of appeals shall have appellate jurisdiction only, which shall be co-extensive with the limits of the state. It shall consist of a chief justice and three associate justices, any three of whom shall form a quorum, whose judgment shall be final and conclusive in all cases of appeals; and who shall have the jurisdiction which the present court of appeals of this state now has, and such other appellate jurisdiction as hereafter may be provided for by law. And in every case decided, an opinion, in writing, shall be filed, and provision shall be made, by law, for publishing reports of cases argued and determined in the said court. The governor, for the time being, by and with the advice and consent of the senate, shall designate the chief justice, and the court of appeals shall hold its sessions at the city of Annapolis, on the first Monday of June, and the first Monday of December, in each and every year.
33. - 3. The state shall be divided into four judicial districts: Allegany, Washington, Frederick, Carroll, Baltimore, and Harford counties, shall compose the first; Montgomery, Howard, Anne Arundel, Calvert, St. Mary's, Charles and Prince George's, the second; Baltimore city, the third; and Cecil, Kent, Queen Anne's, Talbot, Caroline, Dorchester, Somerset, ana Worcester, shall compose the fourth district. And one person from among those learned in the law having been admitted to practice in this this state at least, five years, and above the age of thirty years at the time of his election, and a resident of the judicial district, shall be elected from each of said districts by the legal and qualified voters therein, as a judge of the said court of appeals, who shall hold his office for the term of ten years from the time of his election, or until he shall have attained the age of seventy years, whichever may first happen, and be reeligible thereto until he shall have attained the age of seventy years, and not after, subject to removal for incompetency, wilful neglect of duty, or misbehaviour in office, on conviction in a court of law, or by the governor upon the address of the general assembly, two-thirds of the members of each house concurring in such address; and the salary of each of the judges of the court of appeals shall be two thousand five hundred dollars annually, and shall not be increased or diminished during their continuance in office; and no fees or perquisites of any kind, shall be allowed by law to any of the said judges.
34. - 4. No judge of the court of appeals shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degrees as may be prescribed by law, or when he shall have been of counsel in said case; when the court of appeals, or any of its members shall be thus disqualified to bear and determine any case or cases in said court, so that by reason thereof no judgment can be rendered in said court, the same shall be certified to the governor of the state, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of said case or cases.
35. - 5. All judges of the court of appeals, of the circuit courts, and of the courts for the city of Baltimore, shall, by virtue of their offices, be conservator's of the peace throughout the state.
36. - 6. All public commissions and grants shall run thus: "The State of Maryland," &c., and shall be signed by the governor, with the seal of the state annexed; all writs and process shall run in the same style, and be tested, sealed and signed as usual; and all indictments shall conclude "against the peace, government and dignity of the state."
37. - 7. The state shall be divided into eight judicial circuits, in manner and form following, to wit; St. Mary's, Charles, and Prince George's counties shall be the first: Anne, Arundel, Howard, Calvert and Montgomery counties shall be the second; Frederick and Carroll counties shall be the third; Washington and Allegany counties shall be the fourth; Baltimore city shall be the fifth; Baltimore, Harford and Cecil counties shall be the sixth; Kent, Queen Anne's, Talbot and Caroline counties shall be the seventh; and Dorchester, Somerset and Worcester counties shall be the eighth; and there shall be elec-ted, as hereinafter directed, for each of the said judicial circuits, except the fifth, one person from among those learned in the law, having been admitted to practice in this state, and who shall have been a citizen of this state at least five years, and above the age of thirty years at the time of his election, and a resident of the judicial circuit, to be judge thereof; the said judges shall be styled circuit judges, and shall respectively hold a term of their courts at least twice in each year, or oftener if required by law, in each county composing their respective circuits; and the said courts shall be called circuit courts for the county in which they may be held, and shall have and exercise in the several counties of this state, all the power, authority and jurisdiction which the county courts of this state now have and exercise, or which may hereafter be prescribed by law, and the said judges in their re-spective circuits, shall have and exercise all the power, authority and jurisdiction of the present court of chancery of Maryland; provided, nevertheless, that Baltimore county court may hold its sittings within the limits of the city of Baltimore, until provision shall be made by law for the location of a county seat within the limits of the said county proper, and the erection of a court house and all other appropriate buildings, for the convenient administration of justice in said court.
38. - 8. The judges of the several judicial circuits shall be citizens of the United States, and shall have resided five years in this state, and two years in the judicial circuit for which they may be respectively elected, next before the time of their election, and shall reside therein while they continue to act as judges; they shall be taken from among those who, having the other qualifications herein prescribed, are most distinguished for integrity, wisdom and sound legal knowledge, and shall be elected by the qualified voters of the said circuits, and shall hold their offices for the term of ten years, removable for misbehaviour, on conviction in a court of law or by the governor, upon the address of the general assembly, provided that two-thirds of the members of each house shall concur in such address, and the said judges shall each receive a salary of two thousand dollars a year, and the same shall not be increased or diminished during the time of their continuance in office; and no judge of any court in this state, shall receive any perquisite, fee, commission or reward, in addition thereto, for the performance of any judicial duty.
39. - 9. There shall be established for the city of Baltimore one court of law, to be styled "the court of common pleas," which shall have civil jurisdiction in all suits where the debt or damage claimed shall be over one hundred dollars, and shall not exceed five hundred dollars; and shall, also, have jurisdiction in all cases of appeal from the judgment of justices of the peace in the said city, and shall have jurisdiction in all applications for the benefit of the insolvent laws of this state, and the supervision and control of the trustees thereof.
40. - 10. There shall also be established, for the city of Baltimore, another court of law, to be styled the superior court of Baltimore city, which shall have jurisdiction over all suits where the debt or damage claimed shall exceed the sum of five hundred dollars, and in case any plaintiff or plain-tiffs shall recover less than the sum or value of five hundred dollars, he or they shall be allowed or adjudged to pay costs in the discretion of the court. The said court shall also have jurisdiction as a court of equity within the limits of the said city, and in all other civil cases which have not been heretofore assigned to the court of common pleas.
41. - 11. Each of the said two courts shall consist of one judge, who shall be elected by the legal and qualified voters of the said city, and shall bold his office for the term of ten years, subject to the provisions of this constitution, with regard to the election and qualification of judges and their removal from office, and the salary of each of the said judges shall be twenty-five hundred dollars a year; and the legislature shall, wherever it may think the same proper and expedient, provide, by law, another court for the city of Baltimore, to consist of one judge to be elected by the qualified voters of the said city, who shall be subject to the same constitutional provisions, hold his office for the same term of years, and receive the same compensation as the judge of the court of common pleas of the said city, and the said court shall have such jurisdiction and powers as may be prescribed by law.
42. - 12. There shall also be a criminal court for the city of Baltimore, to be styled the criminal court of Baltimore, which shall consist of one judge, who shall also be elected by the legal and qualified voters of the said city, and who shall have and exercise all the jurisdiction now exercised by Baltimore city court, and the said judge shall receive a salary of two thousand dollars a year, and shall be subject, to the provisions of this constitution with regard to the election and qualifications of judges, term of office, and removal therefrom.
43. - 13. The qualified voters of the city of Baltimore, and of the several counties of the state, shall, on the first, Wednesday of November, eighteen hundred and fifty-one, and on the same day of the same month in, every fourth year forever thereafter, elect three men to be judges of the orphans' court of said city and counties respectively, who shall be citizens of the state of Maryland, and citizens of the city or county for which they may be severally elected at the time of their eiection. They shall have all the powers now vested in the orphans' courts of this state, subject to such changes therein as the legislature may prescribe, and each of said judges shall be paid at a per diem rate, for the time they are in session, to be fixed by the legislature, and paid by the said counties and city respectively.
44. - 14. The legislature, at its first session after the adoption of this constitution, shall fix the number of justices of the peace and constables for each ward of the city of Baltimore, and for each election district in the several counties, who shall be elected by the legal and qualified voters thereof respectively, at the next general election for delegates thereafter, and shall hold their offices for two years from the time of their election, and until their successors in office are elected and qualified; and the legislature may, from time to time, increase or diminish the number of justices of the peace and constables to be elected in the several wards and election districts, as the wants and interests of the people may require. They shall be, by virtue of their offices, conservators of the peace in the said counties and city respectively, and shall have such duties and compensation as now exist, or may be provided for by law. In the event of a vacancy in the office of a justice of the peace, the governor shall appoint a person to serve as justice of the peace, until the next regular election of said officers, and in case of a vacancy in the office of constable, the county commissioners of the county, in which a vacancy may occur, or the mayor and city council of Baltimore, as the case may be, shall appoint a person to serve as constable until the next regular election thereafter for said officers. An appeal shall lie in all civil cases from the judgment of a justice of the peace to the circuit court, or, to the court of common pleas of Baltimore city, as the case way be, and on all such appeals, either party shall be entitled to a trial by jury, according to the laws now existing, or which way be hereafter enacted. And the mayor and city council may provide, by ordinance, from time to time, for the creation and government of such temporary additional police, as they may deem necessary to preserve the public peace.
45. - 15. No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consan-guinity, within such degrees as may be prescribed by law, or where he shall have been of counsel in the case and whenever any of the judges of the circuit courts, or of the courts for Baltimore city, shall be thus disqualified, or whenever, by reason of sickness, or any other cause, the said judges, or any of them, may be unable to sit in any cause, the parties may, by consent, appoint a proper person to try the said cause, or the judges, or any of them, shall do so when directed by law.
46. - 16. The present chancellor and the register in chancery, and, in the event of any vacancy in their respective offices, their successors in office respectively, who are to be appointed as at present, by the governor and senate, shall continue in office, with the powers and compensation as at present established, until the expiration of two years after the adoption of this constitution by the people, and until the, end of the session of the legislature next thereafter, after which the said offices of chancellor and register shall be abolished. The legislature shall, in the mean time, provide by law for the recording, safe-keeping, or other disposition, of the records, decrees and other proceedings of the court of chancery, and for the copying and attestation thereof, and for the custody and use of the great seal of the state, when required, after the expiration of the said two years, and for transmitting to the said counties, and to the city of Baltimore, all the cases and proceedings in said court then undisposed of and unfinished, in such manner, and under such regulations as may be deemed necessary and proper: Provided, that no new business shall originate in the said court, nor shall any cause be removed to the same from any other court, from and after the ratification of this constitution.
47. - 17. The first election of judges, clerks, registers of wills, and all other officers, whose election by the people is provided for in this article of the constitution, except justices of the peace and constables, shall take place throughout the state on the first Wednesday of November next after the ratification of this constitution by the people.
48. - 18. In case of the death, resignation, removal, or other disqualification of a judge of any of the courts of law, the governor, by and with the advice and consent of the senate, shall thereupon appoint a person, duly quali-fied, to fill said office until the next general election for delegates thereafter; at which time an election shall be held as hereinbefore prescribed, for a judge, who shall hold the said office for ten years, according to the provisions of this constitution.
49. - 19. In case of the death, resignation, removal, or other disqualification of the judge of an orphans' court, the vacancy shall be filled by the appointment of the governor, by and with the advice and consent of the senate.
50. - 20. Whenever lands lie partly in one county, and partly in another or partly in a county and partly in the city of Baltimore, or whenever persons proper to be made defendants to proceedings in chancery, reside some in one county and some in another, that court shall have jurisdiction in which proceedings shall have been first commenced, subject to such rules, regulations and alterations as may be prescribed by law.
51. - 21. In all suits or actions at law, issues from the orphans' court or from any court sitting in equity, in petitions for freedom, and in all pre-sentments and indictments now pending, or which may be pending at the time of the adoption of this constitution by the people, or which may hereafter be instituted in any of the courts of law of this state, having jurisdiction thereof, the judge or judges thereof, upon suggestion in writing, if made by the state's attorney, or the prosecutor for the state, or upon suggestion in writing, supported by affidavit, made by any of the parties thereto, or other proper evidence, that a fair and impartial trial cannot be had in the court where such suit or action at law, issues or petitions, or presentment and indictment is depending, shall order and direct the record of proceedings in such suit or action, issues or petitions, presentment or indictment, to be transmitted to the court of any adjoining county; provided, that the removal in all civil causes be confined to an adjoining county within the judicial circuit, except as to the city of Baltimore, where the removal may be to an adjoining county, for trial, which court shall hear and determine the same in like manner as if such suit or action, issues or petitions, presentment or indictment, had been originally instituted therein; and provided also, that such suggestion shall be made as aforesaid, before or during the term in which the issue or issues may be joined in said suit or action, issues or petition, presentment or indictment, and that such further remedy in the premises may be provided by law, as the legislature shall from time to time direct and enact.
52. - 22. All election of judges, and other officers provided for by this constitution, shall be certified, and the returns made by the clerks of the respective counties to the governor, who shall issue commissions to the different persons for the offices to which they shall have been respectively elected; and in all such elections, the person having the greatest number of votes, shall be declared to be elected.
53. - 23. If, in any case of election for judges, clerks of the courts of law and registers of wills, the opposing candidates shall have an equal number of votes, it shall be the duty of the governor to order a new election; and in case of any contested election, the governor shall send the returns to the house of delegates, who shall judge of the election and qualification of the candidates at such election.