delivered the opinion of this court.
In this case an attachment was laid by a creditor of the defendant, in the hands of a person who certainly had been indebted to the defendant. It is said that the defendant, previously to the issuing of this attachment, had transferred this claim to another person. There is, however, no proof of any such assignment or transfer being recorded.
The only question is, whether the terms used in the act of 1834, comprehend choses in action ? This question, we think, was decided by this court in a case on the Eastern Shore, (Massey vs. Hesson and Hanlan,) decided June term. 1845. The garnishee was indebted to the defendant on an award which the latter had assigned previously to the attachment being issued, but the assignment was not recorded, and because it was not recorded, the court decided, that the claim could be attached. We think, therefore, that the court below ought to have decided this question in favor of the plaintiff there.
We think that the court below erred in saying to the jury, “ that there are circumstances of suspicion in relation to the fairness of the papers offered by the defendant, of 25th November, 1839, which, if the said papers were fairly executed, the defendant might, explain, and for the want of such explanatory evidence, the jury may find the said papers were not fairly executed.” This seems to instruct the jury, that they must believe the testimony relative to the circumstances of suspicion, and leaves them in ignorance of what are those suspicious circumstances.
*238The decision of this court, however, upon the former point, renders this instruction of no importance. The appellant cannot complain of it, because, by it, he was not injured. When it is settled that the assignment, whether bona fide or not, is of no effect in the trial of the issue, it is immaterial whether it was fairly executed or not.
Upon the first question, relative to the validity of the transfer, or the necessity of recording it, the court below was equally divided, and the effect of such equal division is to be ascertained.
The defendant contended, that the question was withdrawn from the consideration of the jury. If so, how were the jury to render a verdict? What, disposition was to be made of the case? In the United States'1 courts, when an equal division takes place, the trial stops until the opinion of the Supreme Court can be had. But we have no such provision in Maryland. The jury are still to give a true verdict, and are precisely in the situation in which they would have been, if the counsel on both sides had declined applying to the court for any instruction.
The usual course in some of the courts of Maryland, is for the party who asks the instruction, which is refused, to take his exception, and then the other party may ask the court to instruct the jury that the law is otherwise than as suggested by his adversary. The equal division of the court gives to him an opportunity, also, of taking an exception, and of obtaining a reversal of the judgment, if the court erred, and he was injured by their error in refusing to give his instruction. In the case of Smith vs. Gilmor, 4. H. & J., 177, either party, without a second prayer, may except. See 4 Gill, 209.
This court has already decided, in the case of Massey, before alluded to, and, indeed, in other cases, that the repeal of the act of 1834, had not the effect of giving validity to assignments of this description, before its repeal.
JUDGMENT AFFIRMED.
Dorsey, C. J., dissented»