Volume 1 — Gill's Maryland Reports

<p>testator devised a sum of money to his two grand-daughters, as and for their absolute property, to be taken and set apart for that purpose, out of his personal estate, and paid them as soon as conveniently may be done after his decease; the samp to be understood as bequeathed unto them as .their property respectively, and not to either of their respective husbands or their father, nor their step-brothers or step-sisters. The sum devised to one of the females, was demanded by her husband from .the executors, and paid over to him by them upon a special agreement. Iu an action brought by the legatee against the administrators of her deceased husband to recover the money received by him, Held: that it was not material whether the will gave her an absolute or a separate estate, and that her rights must depend upon the validity or invalidity of the agreement, in virtue of which the money was paid over to hey deceased husband,</p> <p>A contract founded upon an equitable duty, such as would bo enforced by a court of equity, or upon a moral obligation, which no court of law or equity can enforce, or to do that which an honest man ought to do, or upon the waiver of a legal right by the party entitled to it, is maintained by a sufficient consideration.</p> <p>’The executors in this case held the wife’s legacy as trustees,; and wherever it is necessary for a husband to resort to a court of equity to get possession .of his wife’s legacy, that court will require him to do equity by making a settlement upon his wife and children, before it will lend him its aid .in .thp recovery of it; and a promise by the husband to the executors to do that which equity would do in this case, is founded upon a sufficient consideration.</p> <p>Where the husband receives the money of his wife, not in virtue of his marital rights so as to amount to a reduction into possession, hut as her trustee and for her benefit, on the death of the husband it continues to be her property, for which she has a claim against his estate, and does not go to liis personal representatives.</p> <p>The agreement being valid and obligatory upon the husband, is to be considered as a substitution for the equity of the wife, which operated for the benefit of the wife and children, though not named, which a court of equity would specifically execute against the husband upon a bill filed for that purpose.</p> <p>It has been settled by this court, that the wifo’s equity will prevail against an assignment of the husband for valuable consideration, or in payment of a just debt.</p> <p>Where the husband receives his wife’s legacy from the executors of a testator, making her a bequest, and promises to invest the money for her, does not invest according to the terms and conditions under which he received the legacy, and dies, his widow has a right to elect to consider him her debtor to the amount of it, as so much money had and received to her use.</p> <p>Where the merits of an action at law depended in every aspect of it, upon the true construction of an agreement, every prayer which went to the right of action, and kept out of view the effect of the agreement, and so did not involve the true point of controversy between the parties, is considered as wholly abstract.</p> <p>A court is not to be called upon to settle legal principles which have no relevancy to the case before them.</p> <p>Where the orphans court, upon the application of a creditor of a deceased person, and the exhibition of the proof of his demand, passes a claim to be allowed, if paid by the executor or administrator, and upon appeal that order is reversed, such reversal constitutes no bar to the recovery of the same claim at law. The orphans court possessed only a prima facia jurisdiction, and the exercise of the appellate jurisdiction did not increase its effect.</p> <p>An executor may interpose to protect the wife’s equity in property under his control.</p> <p>Ignorance of the law cannot be made available where there is a full knowledge of all the facts.</p> <p>The case of Bowley and Lammot, G H. & J. 524, was held an exception to the general rule; for there a forfeiture of title would have been incurred, if the general rule, that a knowledge of the law in civil cases shall be presumed, where there is a full knowledge of the facts, had been permitted to operate ; that was an attempt to charge the party with a fraudulent concealment of title in the absence of actual knowledge, upon the legal presumption which imputed knowledge.</p> <p>An executor or administrator may retain flic amount of a debt due him by hid deceased testator or intestate, out of his estate, or its due proportion of assets, without passing his claim before the orphans court.</p> <p>The act of limitations does not apply to the claim of an executor against his testator, who retained for his debt. He could institute no suit at law against himself./</p>

<p>The act of 1791, ch. 68, gives jurisdiction to justices of the peace, where the real debt and damages do not exceed ten pounds, current money, of one thousand pounds of tobacco.</p> <p>The act of 1809, ch. 76, gives jurisdiction to the justices of the peace, in all cases where the real debt and damages doth not exceed the sum of fifty dollars.</p> <p>Both these acts, in defining jurisdiction, refer not to the sum claimed, but to the sum recovered, as the standard by which it was to be regulated.</p> <p>By the act of 1813, eh. 162, the sphere of the justices power was extended to trespasses upon real property, by cutting, destroying or carrying away timber or wood from off any land where the damage should not exceed the sum of fifty dollars. The test of jurisdiction here also is the sum recovered.</p> <p>By the act of 1824, ch. 138, jurisdiction is given to the justice to injuries over real property, for which t. q. c. f, might be maintained, and where the damages “laid or claimed” should not exceed fifty dollars.</p> <p>The act of 1825, ch. 51, extends the jurisdiction of justices to trespasses of either real or personal property, where the damages claimed or laid shall not exceed the sum of fifty dollars.</p> <p>Tho act of 1834, ch. 296, gives jurisdiction to justices of the peace, in all cases where the debt or damages “laid or claimed” shall not exceed the sum of fifty dollars, excepting from the operation of that act, actions of slander, assault and battery, and where titles to land shall come in question.</p> <p>The act of 1824 first introduced a now test of jurisdiction, by making it to depend upon the damages claimed or laid, and from that time all subsequent laws providing for the recovery of damages, have adopted the same standard.</p> <p>If a plaintiff estimates his damages at a sum not exceeding fifty dollars, jurisdiction is given to a single magistrate, because the sum recovered cannot exceed the sum claimed; but where the nature of the injury is such as to justify a claim of damages to a larger amount in his declaration, the established jurisdiction of the county court is not taken away.</p> <p>These views are not to be considered as in any respect applicable to cases of contract, but are intended to bo confined to actions for torts.</p> <p>In an action against an innkeeper, for negligently taking care of the plaintiff’s horse in his stable, so that he was killed, the damages claimed exceeded fifty dollars. Held : that the county court had jurisdiction of the action.</p> <p>Where, in the progress of a trial, the defendant excepted to instructions granted in favor of the plaintiff, and afterwards the judgment was arrested, but upon the appeal of the plaintiff, reversed, this court will not enter final judgment, but remand the cause for judgment on the verdict to the county court, in order that the defendant may have an opportunity of appealing from the instruction given against him.</p>

<p>By tlie act of 1829, ch. 51, any assignee, bona fide entitled to any judgment, bond, specialty or other chose in action for the payment of money, by assignment in writing, signed by the person authorized to make the same, may by virtue of such assignment sue and maintain an action, &c., in his name, &c., against, &c. Held : that an instrument of writing which bound the defendant to pay a money rent, let a third party have a portion of the produce of the demised premises, and furnish the means of carrying it away, was not such an instrument, as under that act, would authorise an assignee to maintain an action in his own name.</p> <p>The chose in action contemplated by the act of 1829, eh. 51, was one purely for the payment of money; and where the assignor if no assignment had been made, could only maintain an action for non-payment of the money.</p> <p>But where monoy is due under such a contract, and the defendant promises the assignee to pay the same, this will enable the assignee to sue independent of the act of 1829, ch. 51, upon the express promise.</p> <p>Where a verdict is rendered for the plaintiff on two counts in a declaration, one of which contains no cause of action, the court will render judgment upon the other if legally sufficient.</p> <p>The act of 1809, ch. 164, declares that judgment shall not be stayed after verdict for defect of any count in a declaration, where there is one good count.</p> <p>Where the plaintiff counts upon a contract assigned to him, followed by an express promise by the defendant to pay him tile sum alleged to be duo under it, and the bill of exceptions does not show that the plaintiff had closed the testimony on his part, it is error in the court, upon the motion of the defendant, to reject the proof of the assigned contract.</p> <p>In virtue of the act of 1831, ch. 319, this court is required in appeals from certain county courts enumerated in that act, to decide upon all the bills of exception taken at the trial below, whether appealed from oí not.</p> <p>Where the county court awards a new trial, it has power to authorize an amendment of the pleadings under the act of 1785, ch. 80, see. 4.</p> <p>Where a verdict is set aside and a new trial awarded, the case, as far as amendments are concerned, stands as if no trial had been had.</p> <p>An application for an amendment of pleadings is not a demand of a matter of right, but is an appeal to the sound discretion of the court, and to be granted when it shall appear necessary to bring the merits of the question between the parlies fairly to trial.</p> <p>Where an application is made to the court to withdraw a genera] issue plea, and file a general demurrer, and the defendants exception to a refusal to grant that privilege did not state the existence of any necessity for such amendment, and it did not appear that the amendment if made would have given the defendant any new defence, it is not error in the county court to refuse the amendment.</p> <p>Will an appeal lie from the decision of the county court exercising its discretion, in allowing or refusing an amendment of the pleadings ? Qr.</p> <p>Where the county court, after verdict for the plaintiff, upon motion arrested the judgment, and there was no error in the bills of exceptions taken by the defendant, this court overruling the motion in arrest, will proceed to enter final judgment upon the verdict for the plaintiff.</p>

<p>'Certainty to a reasonable extent, is an essential attribute of all pleadings, both civil and criminal, but is more especially so in the latter, where conviction is followed by penal consequences. '</p> <p>■One of the objects of certainty in pleading is notice to the party of the nature of the charge against which he is to come prepared to defend himself ; another to enable the court to pronounce the sentence of tho law, and the party to defend himself against a second prosecution for the same crime, by pleading a prior acquittal or conviction.</p> <p>An indictment under the act of 1817, ch. 227, section 1, should allege the names of the slave and his master if known; if unknown, the fact should be so averred; and also, that there was no license in existence authorizing the slave to remain in the retailer’s store, &c., within the period prohibited! by the said act. It is not a compliance with the act merely to- allege the slave not having a written order or license from bis master. The nonexistence of a license is an essential ingredient in the offence.</p>

On the 20th March 1843, the appellants filed .their petition, alleging, that on .the 10th May 1842, Peter Ridinger died intestate, and that the appellee is his administratrix; that their intestate died on the 2nd January 1843; that McCaleb demised to Ridinger on the 1st April 1835, a certain messuage and premises lying in said county, for the term of three years, to Commence from that day, and after the end of said three years, from year to year, that is to say, that the…

This was an action oí Assumpsit, brought on the 2nd March 1840, by the appellee against the appellant, to recover the amount of a promissory note of the defendant for $350, dated-28th September 1837, payable to the appellee or order. The declaration also contained the common money counts. The defendant pleaded non-assumpsit, and the jury found a verdict against him for $445.37, on which judgment was rendered. 1st Exception.

This was an action of Assumpsit, brought by the appellee against James B. Mitchell on the 22nd July 1833. Pending the action J. B. M. died, and his executrix Elizabeth A. Mitchell (who also died,) and the present appellant were successively made parties to the case. The defendants pleaded nonassumpsit and limitations on which pleas issues were joined.

This was an action of trespass upon the case, &c., commenced on the 27th January 1841, by the appellee against the appellant.

This was an action of Assumpsit, commenced by the appellee against the appellant, on the 7th February 1837, to recover the value of certain professional services as an attorney and counsellor at law, rendered by the appellee to the testator of the appellant, and at his special instance and request. At October term 1837, the defendant pleaded non-assumpsit^ on which issue was joined.

This was an action of assumpsit, brought on the 9th October 1840, by the appellees against the appellant, who pleaded nonassumpsit. At the trial the following exceptions were taken t 1st Exception. The plaintiffs to support the issue on their part offered in evidence to the jury the following bill of exchange and protesti “$1500.

This was an action of Replevin, brought on the 15th May 1840, by William F. Berry against Elisha Berry (who died before the trial,} and Robert W. Brooke, for the negro slaves mentioned in the proof. The slaves were replevied and delivered to the plaintiff. The defendant pleaded— 1. Property in the defendant. 2. Property in a stranger. 3. JYon cepii. 4. Actio non accrevit infra Ires annos.

This was an action of Debt, brought by the appellee against the appellants, on the 28th September 1837.

This was an action of Assumpsit, brought on the 24th March 1840, by the appellant against the appellee.

This was an action of Assumpsit, commenced on the 30th August 1841, by the appellee ■ against Ezra R. and Michael Keefer, partners, trading under the firm of E. R. if M. K. The plaintiff declared upon an indebtedness for sundry articles and matteis properly chargeable in account; and upon the money counts. The defendant pleaded non-assumpsit, on-which issue was joined. 1st Exception.

<p>Extracts from record books deposited in the land office, showing the name and rank of grantee, and number of the lot and acres,with a particular description of such lot as surveyed, to which an officer or soldier of the Revolution was entitled, which books purport to have been made under the authority of the act of 1788, ch. 44, with a certificate from the register of the land office, un-, der his seal of office, that the same have been carefully collated and compared with the original record books from which thoy were respectively taken and agreed therewith, are sufficient evidence to show title in the person named ip suph extracts, to the lot therein described.</p> <p>An escheat grant is prima facie evidence of title, and is available for that purpose until the contrary is proved.</p> <p>It is not necessary nor usual, according to the practice of the land office, to state on the face of an escheat patent whose lands were escheated, or the facts or circumstances which shew that the lands were escheatable.</p> <p>A patent which professed to grant, as escheat,' geveral parcels of land which it described, with contiguous vacancy, cannot include, as such vacancy, another parcel of land which appeared to have been theretofore granted by the State, and not enumerated as one of the parcels escheated.</p> <p>The court will not instruct the jury after a lapse of seventeen years merely, to presume the death of the patentee of land.</p> <p>A death of a patentee .will not be presumed to support a title to land, acquired in violation of the law, and rules of the land office.</p> <p>Before a title can be acquired in lands liable to oscheat, the rules of fjie land office require that two-thirds of the value of the land be paid to the State.</p> <p>A warrant of resurvey should be founded upon a siezin in fee in the Jaijds upon which the resurvey is to be made.</p> <p>A partial possession of land, with a general claim of title for fifteen years, will not authorise the presumption of a conveyance to such claimant.</p>

This was an action upon the case, brought by the appellee against the appellant, on the 15th April 1840.

This was a Scire Facitis, sued out on' the 28th August 1836. to revive a judgment of Prince George’s county court, rendered at October term 1826, in favor of Richard Jones against the appellant; The defendant appeared, and it was “agreed that the plea of the defendant’s discharge under the insolvent laws of this State may be put in short, and be taken and received as if it had been written out at length and filed, the fact of said discharge and the legality and regularity of…

Appeal- from Harford County Court. This was an action of Assumpsit, brought on the 7th May 1839, by the appellee against .the appellant,, to recover the amount of a promissory note of Elizabeth, the wife of the appellant, made, while sole, on the 1st April 1831, at Donaldson, in the State of Louisiana, payable twelve months after date, to Joshua) B. Bond the appellee, and one Richard Bond, (since dead,) then partners in trade, &c., for the sum of $136.63, bearing ten per…

This was an aetion of trespass upon the case, commenced on the 18th February 1841, by the appellant against the appellee.

On the 25th February 1835, the appellees filed their bill against John T. Berry, Deborah Waring, William Edmonds and Rebecca his wife, John E. Berry, Otho B. Beall and Priscilla Waring, alleging that on or about the 1st July 1826, a certain Benjamin Berry, late of, &c., (who has since departed this life,) the grand-father of your oratrix, being seized in fee simple of a certain tract, parts of tracts or parcels of land, with the appurtenances, situate, lying and being in…

This was an action of Debt, commenced by the State on the 26th September 1843. The State of Maryland, at the time of prosecuting its writ of capias ad respondendum, filed in court the following account, notices and collector’s bond, to wit: Dr. JohnM. Carleton, collector of Allegany county, in account with the State of Maryland. For the Direct Tax for 1841, $8,017 12 Cr.

This was an action of Assumpsit, brought by the appellees against the appellant, on the 16th May 1840, for goods sold and delivered. The defendant pleaded non-assumpsit and limitations, on which issues were joined. 1st Exception.

This was an action of assumpsit, commenced on the 1st January 1841, in which the plaintiff, the appellees, averred that the defendant in this action on, &c., at, &c., was indebted to plaintiffs in a large sum of money, to wit, the sum of one thousand dollars, lawful money, for so much money by the plaintiffs before that time paid, laid out and expended for the defendant, as consignee of the ship Ellen Brooks, at his special instance and request; and being so indebted, See.

This was an action of assumpsit, commenced on the 17th April 1840, by the appellee against the appellants and Amos A. Williams. The latter was returned non est, &c., and did not appear to the action.

This was an action of Debt, commenced on the 11th May 1838, by the State against the appellants, on their bond, dated 25th September 1835, subject to the following condition : “The condition of the above obligations is such that if the above bound Richard R. Waters, do and shall well and faithfully execute his office as collector of Montgomery county, and the several duties required of him by law, and shall well and truly account for and pay to the justices of the levy…

This was an action of assumpsit, commenced on the 21st March 1837, by the appellants against the appellees. The plaintiff’s declaration contained nine counts.

This was an action of Ejectment, brought on the 5th Oct. 1836, for a tract of land called “ Sampson's Riddle Amended.” The defendant took defence on his title, and pleaded not guilty. At the trial of the cause, the parties agreed, “that no objection shall be made to the suit by the defendant’s counsel, on the ground that the said Tomlinson appeared by attorney, instead of his trustee, but that the said suit shall stand as though said Tomlinson appeared by his trustee.

The bill of John S. Stiles, of the city of Baltimore, and of William P. Maulsby, trustee, filed on the 2nd July, 1840, for the benefit of the creditors of said Stiles, stated i that sometime about the year 1827, a judgment having been rendered against J. S. S. in Baltimore county court, for the sum of $1,000, or thereabouts, he requested a certain Stewart Brown to become his surety on an appeal bond, for the purpose of carrying said cause to the Court of Appeals; and at the…

On the 10th December 1842, the appellee offered for passage hisj/w-si account as administrator aforesaid, in which he charged himself with $7,347.75, and claimed an allowance of ac - counts No. 1 to 41 inclusive, $4,605.36, leaving a balance due the estate of $2,742.28.

On the 8th April 1839, Charles Smallwood and Henrietta, his wife, Joseph Smallwood and Matilda, his wife, filed their bill, alleging, that H. and M., whilst they were infants, and before their marriage, became entitled to sundry negroes, which came into the hands of Zephaniah Mitchell, the father of said H. and M.; that after his death, in the year 1820, his widow, Providence Mitchell, was duly appointed guardian to H. and M., and as such, took possession of the said…

This was an attachment to compel an appearance, commenced on the 15th January, 1841, on the following proofs and proceedings, to wit: “State of Maryland, city of Baltimore, to wit: Be it remcm ■ bored, that on this fifteenth day of January, in the year one thousand eight hundred and forty-one, before me, the subscri ber, a justice of the peace of the State of Maryland, in and for said city, personally appeared Fielder Israel, a citizen of the State of Maryland, and made oath…

The amended and supplemental bill in this cause was filed on the 6th July, 1836, by the appellants, and alleged that in the year 1815, Aquila Hall died, having executed his last will. whereby he devised to his widow, Ann Hall, for life, a valuable real estate and some personal property; after the decease of his wife, remainder to his daughters, Charlotte and Maria Hall, in fee.

This was an action of Assumpsit, commenced by consent of parties, under the following agreement: It is hereby agreed, that all errors in pleadings be waived, and that the paper marked “Plaintiff’s exhibit A,” herewith annexed, is a true copy of the last will and testament of Alfred Jones, deceased, as well as of the codicil thereto annexed; that after the execution of the said will and codicil, the said A. J departed this life, and that after his death, the said last will…

On the 11th October, 1841, the appellants filed their bill, alleging that they were legatees mentioned in the last will of Zachariah Woollen, who died in August, 1837; that by its provisions the real estate of the deceased is directed to be sold by his executors, and after payment of his debts, one half of the net proceeds are directed to be invested or lent out on mortgage, or on security, &c., and the rents and profits, &c., arising therefrom to be applied for the separate…

The bill in this cause was filed on the 11th February. 1841, by William J. Cole, and alleged that before the 1st September, 1839, Charles Brecht, of the city of Baltimore, merchant, was indebted unto Albers and Range, of Baltimore, as copartners, and various other persons in said city, in large sums of money, was actually insolvent; and which insolvency was known to said Albers Range; that on the day above mentioned C. B„ formed a copartnership with one Frederick Uthoff,…

On the 26lh October 1841, Joseph E. Simmes, a. d. b. n. of Thomas C. Reeves, filed his petition in the said court, claiming of the executors of the late Elizabeth Reeves, the property contained in list No. 1, and the money in list No. 2, and prayed the court so to order and adjudge in his favor. List J\o. 1. Property, the executors of E. R. have not paid over, for which the appellee holds them responsible, viz: Negro man Gusty, carpenter.

This was an action of Ejectment, commenced by the appellant on the 20th August 1841, who declared for all that lot or piece of ground on Fell’s Point, in the city of Baltimore: Beginning for the same at the south-west intersection of Alice Anna street and Caroline street, and running westerly on Alice Anna street one hundred and seventy feet to Spring street, (formerly Petticoat alley,) and then southerly, bounding on the east side of Petticoat alley, or Spring street, to…