the principles upon which it should be ultimately decided, we will briefly indicate them for the government of the superior

court.

As to the judgment. Prima facie it imports verity, and, as to the parties to it, is conclusive unless mistake or fraud be shown, and the onus is on those who impeach it. A judgment is the highest exercise of the judicial power, and as such, to be interfered with or questioned only with great delicacy and circumspection. Were this not so, our judicature, instead of being a guaranty of stability and certainty, would be worse than a farcewould be a snare and a trap to the confiding. The law regards it as the final adjustment of the matter in dispute, upon which the parties may confidently rely. If, as alleged in this case, the judgment was agreed and understood by the parties to it to be, not an ascertainment of so much actual indebtedness, but only as a security for so much as thereafter might be ascertained to be due, then in such case it would be a fraud on the part of the appellants to use it for a purpose different from that of the agreement, and a court of equity would enjoin them from doing so: Harris v. Alcock, 10 Gill & J. 226 [32 Am. Dec. 158]. But to establish such a proposition in direct conflict with the legal import of the judgment, the evidence should be abundantly full and explicit; so full, indeed, as to leave no doubt on the mind of the court. Unless evidence of this character be adduced, the judgment should be regarded as unimpeached, and remain in full vigor.

In the final decision of this case, the law governing the relation of principal and factor is to be applied to the dealings of the parties. What that law is, so far as this case is concerned, we shall, as concisely as may be, state.

Its paramount and vital principle is good faith; without it the relation of principal and agent cannot exist; and so sedulously is this principle guarded, that all departures from it are esteemed frauds upon the confidence bestowed. Almost any

number of cases might be cited to support this declaration, but such a labor would be but an unprofitable employment of time, inasmuch as all that can be usefully noticed has been in a very clear manner brought together by Sugden in his work on vendors and purchasers, by Justice Story in his commentaries on equity jurisprudence, and in the decisions of the supreme court of the United States. In these compilations we have, without unnecessary verbiage, the relative duties of principal and agent distinctly defined. There is no discordance between them; but

on the contrary, perfect harmony. In the case of Brooke v. Berry, 2 Gill, 99, the court of appeals emphatically recognized and adopted the views of Justice Story, contained in his com mentaries on equity jurisprudence, as stated in section 315. In the celebrated case of Michoud v. Girod, 4 How. 503 (a case elaborately argued by counsel, and fully considered in all its bearings by the court), the views of Sugden are fully adopted; and he says, when speaking of agents and trustees, other than those who are only nominally so, that they "are incapable of purchasing such property [that of their principal] themselves, except under the restraints which will be shortly mentioned. For if persons having a confidential character were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information, and not to exercise it for the benefit of the persons relying upon their integrity. The characters are inconsistent." The supreme court, after fortifying this doctrine by the citation of a great number of cases, proceeds to announce, as a consequence, that the law "prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests when he is the seller or buyer on his own account are directly conflicting with those of the person on whose account he buys or sells." From this it follows that the appellants had not, according to the general principle, the right to purchase the goods of their principal intrusted to them for the purpose of sale to third parties. The exception to this general rule, or, as Sugden terms it, restraint, is thus expressed: "We scarcely need add,” say they, "that a purchase by a trustee of his cestui que trust, sui juris, provided it is deliberately agreed or understood between them that the relation shall be considered as dissolved, and there is a clear contract ascertained to be such, after a jealous and scrupulous examination of all the circumstances, and it is clear that the cestui que trust intended that the trustee should buy, and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee, will be sustained in a court of equity." This extract from the opinion of the court embraces both its own and the opinion of Sir Edward Sugden. And our late court of appeals, in the case already referred to, of Brooke v. Berry, 2 Gill. 99, after regretting that the inhibition was not without limitation, say, quoting the

language of Justice Story: "To deal validly with their principals in any cases, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and in absence of all undue influence, advantage, or imposition," is not to be permitted.

According to these doctrines, if the appellants, without the knowledge and assent of their principal, purchased or took to their own account goods intrusted to them for sale, or, with the knowledge and assent of their principal, purchased its goods, the principal not being fully and thoroughly advised of every fact and circumstances in the possession of the agents, such sales are invalid. Whether there were any purchases made by the appellants, unattended by these indicia of perfect good faith, is a proper subject of inquiry for the court to which this cause will be remanded. The record as it now stands discloses nothing positive on this head, although it does much in regard to the general course of trade; and from the ordinary turn of things, it is inferred by witnesses and counsel that such purchases as are unauthorized by law were made. The answers of the appellants declare everything was done with the full knowledge and approval of the agent of the appellee. If this should turn out to be so, and that there was a free, full, and frank disclosure of every circumstance connected with the transactions, and a total absence of all fraud and concealment, then if the accounts between the parties be properly stated, we do not perceive how, under the decisions to which we have referred, such sales can be impeached in a court of equity. Whether the accounts are properly stated is not for us to decide; that is more properly the business of a book-keeper or accountant; all we can do is to point out the principles on which they should be stated. If the items composing the several accounts rendered, and the interest thereon, be arithmetically and properly averaged, then the result is precisely the same as though the interest had been computed separately on each item from its true date. This is a mathematical fact.

With these views we dismiss the appeal, the injunction remaining until further order of the court.

Appeal dismissed.

ANSWER CANNOT BE CONSIDERED by the appellate court upon an appeal from an order granting a preliminary injunction taken under statute: Wagner. v. Cohen, 46 Am. Dec. 660, note 664.

ON MOTION TO DISSOLVE INJUNCTION, all objections to the sufficiency of the answer will be considered: Gibson v. Tilton, 17 Am. Dec. 306, and note

310; and allegations therein can be regarded only so far as they are responsive to the bill: Hardy v. Summers, 32 Id. 167; Yong and Bryan v. McCormick, 63 Id. 214, and citations in note 217. That defendant must answer fully, see Adams v. Hudson County Bank, 64 Id. 469; Burnley v. Cook, 65 Id. 79.

IN CHANCERY, PLAINTIFF IS ENTITLED TO FULL ANSWER: Price v. Tyson, 22 Am. Dec. 279; and defendant cannot avail himself of a defense not pleaded: Cummings v. Coleman, 62 Id. 402.

FACTOR'S DUTY TO ACCOUNT: See extended note to Bigelow v. Walker, 58 Am. Dec. 161 et seq.; and that accepting factor's final account without objection discharges him from further liability, see Id., and River v. Gilly, 12 Id. 483.

JUDGMENT CONCLUSIVE AS BETWEEN PARTIES, WHEN: Horton v. Critchfield, 65 Am. Dec. 701; Detrick v. Migatt, 68 Id. 584, and citations in notes to these cases.

BURDEN OF PROOF IS ON Party AllegiNG FRAUD: Nichols v. Patten, 36 Am. Dec. 713, and note; Bartlett v. Blake, 58 Id. 775, and note.

FACTOR CANNOT DELIVER PRINCIPAL'S GOODS IN PAYMENT OF HIS OWN DEBT: Benny v. Rhodes, 59 Am. Dec. 293, and note 297.

PARTY CANNOT UNITE OPPOSITE CHARACTER OF BUYER AND SELLER: Remick v. Butterfield, 64 Am. Dec. 316; when he has a duty to perform inconsistent with that character: Maryland Ins. Co. v. Dalrymple, 25 Md. 266; Korns v. Shaffer, 27 Id. 90, both citing the principal case.

INSUFFICIENT ANSWER IS NO ANSWER, and if insufficient, an appeal will be dismissed: Blackburn v. Crawfurd, 22 Md. 456; if motion is made in the appellate court: Belt v. Blackburn, 28 Id. 240, both citing the principal case. THE PRINCIPAL CASE IS CITED in Anders v. Devries, 26 Md. 226, to the point that a judgment prima facie imports verity, and as to the parties to it, is conclusive, unless fraud or mistake is shown, the onus to show which being on those who seek to impeach it. In Canton Co. of Baltimore v. Northern Central R. R. Co., 21 Id. 293, it is distinguished on the point as to what constitutes a sufficient answer, and is said to differ materially from that case in this respect.

TRIEBER v. KNABE.

[12 MARYLAND, 491.]

PIANO IS LIABLE TO SEIZURE UNDER DISTRESS FOR RENT, when such instrument belonging to party is hired by him to a music-teacher, who takes it to the hotel where he boards and lodges.

EXEMPTION FROM SEIZURE UNDER DISTRESS does not extend to the instruments of a man's trade or profession not in use, and when there is an insufficiency of goods on the premises to meet the distress.

IT IS NO OBJECTION TO CHARGE asked for by party that he asks for less than he is entitled to upon the facts submitted to the jury.

THE opinion states the facts.

J. H. Gordon, for the appellant.

T. Devecmon, for the appellees.

By Court, LE GRANDE, C. J. This is an action of replevin, and comes before us on the ruling of the court below on an agreed statement of facts. The suit involves the title to a piano. The facts agreed upon, which are material to be stated for the decision of this case, may be thus enumerated: The piano in controversy belonged to the plaintiffs, and was by them hired to one Stinebecker, a music-teacher, in Cumberland, in the summer or fall of the year 1854; Stinebecker boarded and lodged with one Helfelfinger, the keeper of the Revere house, and the tenant of the defendant. The Revere house was a public hotel. After the piano had been for some time in the room occupied by Stinebecker, in consequence of his removal to a smaller room in the hotel, the piano was removed to the private family-room of Helfelfinger, and there remained until, in the month of February, 1856, it was taken by virtue of a distress for rent due from the tenant, Helfelfinger, to his landlord, the defendant. It is admitted the distress was in due form, and also "that all the property on the premises at the time of the distress, and liable to be distrained, was not sufficient to pay the whole rent" due. The piano was sold under the distress-warrant, and the defendant became the purchaser of it.

The question which arises under this state of facts is, Was the piano, so circumstanced, under the law, exempt from liability to distress for rent? We are of the opinion it was not.

We have carefully examined the cases referred to by counsel in argument, and duly weighed the reasons addressed to our judgments, but in neither do we discover any justification for us, as a court in Maryland, to decide in favor of the exemption of the piano from liability. As a general principle, all movables found on the demised premises are subject to distress. To this there are, however, some exceptions, and the question in the present case is, Does this piano, under the circumstances, fall within any of these exceptions? In the case of Simpson v. Hartopp, Willes, 512, Lord Chief Justice Willes, in an opinion of clearness and precision, lays down the whole law as applicable to what is and what is not liable to distress. After stating the general principles, he proceeded as follows to state the exceptions to it: "1. Things annexed to the freehold; 2. Things delivered to a person exercising a public trade, to be carried, wrought, worked up, or managed in the way of his trade or employ; 3. Cocks or sheaves of corn; 4. Beasts of the plow, and instruments of husbandry; 5. The instruments of a man's trade or profession. The first three sorts were absolutely free