APRIL 1805 state without distinction, and without regard to the manner in which he became indebted. Davidson The title and preamble of an act of assembly are never resorted to in expounding it to ascertain the meaning of the legislature, except where the words in the enacting clause are doubtful, or not sufficiently explicit to express their intention. This clause contains a particular and positive provision, which is not controled or in any manner affected by any other part of the art. As soon as the suit was commenced by the state a lien was created on the lands of the debtor, Philemon C. Blake, and the state acquired a right of preference over the other creditors of the said Blake, who bad not, prior to the commencement of the said suit by the state, secured a lien by judgment, mortgage, or otherwise, on the lands of the said Blake. The priority of payment, thus acquired by the state, could not be divested or defeated by any act of the sheriff who sold the land, the debtor, or any other person-And the surplus of the money arising from the sale of the said Blake's land, after satisfying the first judgment of the state, remaining in the hands of the defendant, is to be considered as land, and subject to the attachment of the state, issued on the second judgment, in preference to the claim of the plaintiff. DEMURRER RULED GOOD. There is no di tinction, under the act of 1786, ch GENERAL COURT, MAY TERM, 1805. Lowe, et ux. vs. MACCUBBIN, et al. THIS was a case sent from the court of chancery 45, to direct de for the opinion of this court, viz. scents, between brothers and sis ters, (children of In Chancery, June 15, 1805. It is admitted by the the same father), parties that Joseph Maccubbin died intestate some time of the whole and half blood, where in the year 1800, seised of sundry tracts of lands si the estate descen ded from Jatber. the tuate in Anne-Arundel county. It is also admitted, that he left the following children to wit: The wife Lowe Maecubbin of Lloyd M. Lowe (complainant,) by one wife, and Ni- MAY 1805. cholas and Charlotte Maccubbin, (the defendants.) by a second wife, and at the time of the death of the said Joseph Maccubbin, his second wife was with child, since born and now alive, named Nicholas, the said first named Nicholas having died previous to his birth, a minor, and without issue. At the instance of the complainants, the chancellor takes the liberty of requesting the honourable the judges of the general court to give their opinion, whether or not the complainant's wife, together with the said Charlotte and Vicholas Maccubbin, (the 2d,) are equally entitled to the portion of the land which descended to the said Nicholas, (the first,) from his father; or whether or not the same devolved on the sail Nicholas & Charlotte of the whole blood, to the exclusion of the complainant's wife, a sister of the half blood? A. C. HANSON, Chancellor. THE GENERAL COURT sent the following certificate to the court of chancery: To the honourable the Chancellor of Maryland, We, the underwritten, judges of the general court, do certify, that in our opinion the complainant's wife, together with Charlotte and Nicholas Maccubbin, (the second,) are equally entitled to the portion of the Jand which descended to the said Nicholas, (the first,) from his father. J. T. CHASE. GENERAL COURT, MAY TERM, 1805. BROSIUS VS. REUTER, et al. MANDAMUS to restore, or cause to be restored, the prosecutor into the place and function of minister of In a return to a same certainty is mandamus the required as in declarations and "The Saint John's German Catholic Church of Balti- pleadings, plied by intendment or inference. ino. thing can be sup The facts stated in a return to a mandamus are supposed to be true and are not traversable. If they are false, the remedy is by action against the persons making the return. The return to a mandamus held to be insufficient, in not showing and setting forth with precision and certainty the rules, laws and canons, of the church, &e Brosius Reuter MAY. 1805 more," in the city of Baltimore, and to the use of the pulpit and altar of the said church, and of the parsonage house thereof, and of all and singular the effects, property, rights, privileges, liberties and functions, to the said church, altar and pulpit, and to the office and duty of rector or priest of the said congregation, in any wise belonging or appertaining, or to signify to the court here cause to the contrary thereof, &c. Proof was made of a service of the mandamus on each of the defendants. The defendants made the following return, to wit: We, Cosarius Reuter, &c. &c. the parties to whom the writ hereto annexed is directed, by virtue of the writ aforesaid, do most humbly certify to the judges of the general court, sitting in the general court for the western shore of Maryland, that the persons named in the said writ are members of a congregation of christians, associated together for the purpose of di vine worship in the city of Baltimore, and Baltimore County, and are denominated "The Saint John's German Catholic Church of Baltimore." We do further certify, that the said Cæsarius Reuter was duly elected and chosen, by a majority of the members of the said congregation, minister thereof, and that he still continues to exercise his ministerial functions with the approbation and consent of the said majority. And we do further certify, that the said Cæsarius Reuter was put into possession of the church of the said congregation, and of the use of the pulpit thereof, as minister of the said congregation, with all the liberties, privileges and advantages. to that place and function belonging and appertaining, and that the said minister, so elected and put into possession, holds the place and function of minister of said congregation, by the will and assent of a majority of the members of the said congregation. And we do further certify, that the said Francis X. Brosius has been appointed minister by the Right Reverend John Carroll, Bishop of Baltimore, without the previous consent and approbation of the majority of the members of Brosius YS Reuter the said congregation, and in opposition to their de- MAY 1805, clared wishes and choice, and contrary to the rules, laws and canons of the Catholic Church. And we do further certify, that by the fundamental laws, usages and canons, of the German Catholic Church aforesaid, to which we belong, that the members of the church, who found and built and contribute to the support of the church and the pastor thereof, have the sole and exclusive right of nominating and appointing their pastor, and that no other person, whether bishop or pope, has a right to appoint a pastor without the assent and approbation of the congregation, or a majority of the same. And we do further certify, that the said Cæsarius Reuter is a regular clergyman belonging to the society called "The Minorits Conventuals of the Order of Saint Francis," and that the said Cæsarius Reuter was sent back to the United States to found a German Catholic Church in Baltimore, according to the law of the said United States; and that in virtue of the said authority, he the said Cæsarius Reuter, and a majority of the congregation aforesaid, did build, found, and erect the said church, called "The Saint John's Ger man Catholic Church of Baltimore," and did place the said church under the sole and exclusive control of the said order according to the law of the United States; of which said church the said Cæsarius Reuter was put and appointed pastor, and still continues so to be; and that by the canonical law of the Catholic Church aforesaid, the said Cæsarius Reuter owes obedience to the magistrate, and to said order, and to no other ecclesiastical person or body whatsoever. And therefore we cannot, nor can either of us, restore the said Francis X. Brosius into the said place and function of minister of the said church, called "The Saint John's German Catholic Church of Baltimore," and to the use of the church of the said congregation, and the pulpit thereof, as minister of the said congrega tion, with all liberties, privileges and advantages, to that place and function belonging, as by the writ aforesaid we are commanded. In witness whereof we here. VOL. I. 70 MAY 1805. Brosius VS. Reuter to set our hands and seals this 13th day of May, in the year of our Lord 1805, Frid. Cæsar. Reuter. (L. S.) And also signed and sealed by the other defendants. Harper, for the Prosecutor, moved the court to quash the return for insufficiency, for the following reasons: 1. The return states that they belong to "The Saint John's German Catholic Church of Baltimore," (which is a congregation professing the Catholic religion,) and then states, that by the canons, &c. of that congregation, a majority may appoint, but does not shew that in the Roman Catholic Religion, a particular congregation can have separate canons. This being material, must be positively shewn, and cannot be made out by inference or intendment. 2. It states, that the bishop appointed the prosecu tor, "contrary to the rules, laws and canons of the Catholic Church," without shewing in what respect the appointment was contrary to those rules, laws and canons, or what those rules, laws and canons are. 3. It states, that the said Cæsarius Reuter was elect ed and put into possession by a majority, without shewing when and where the said election took place, and how many members of the congregation there were at the time of the said election, and how many voted for the said Reuter; and that the meeting for the purpose of such election was held pursuant to the canons. 4. It states, that by the canons, laws and usages, of the German Catholic Church aforesaid, the members who found and build a church, and who contribute to the support of it, and of the minister, have the sole and exclusive right of nominating and appointing their pastor; but does not shew particularly what those canons. laws and usages are, nor how they were established. 5. It states, that the said Reuter, and a majority of the congregation, did erect the said church, and did place it under the direction of the society or order called "The Minorits Conventuals of the Order of Saint |