Volume 1 — Harris & Gill's Maryland Reports

Ejectment on the demise of Isaac Henry, for a tract of land called Pleasant Plains. The defendant, (the appellee,) took defence on warrant, and plots were returned.

<p>After verdict in an action of assumpsit, by an administrator, a defective allegation in the declaration, of the promise to the administrator, and the death of the intestate, and an omission to make profert of the letters of administration, cannot be taken advantage of, though they might have furnished good causes of demurrer.</p> <p>W, being taken sick at the house of V, deposited in his hands an amount of money, and directed V to send for a physician, (o furnish him with every thing that was necessary, and to apply the money to the payment of the physician’s bill, and of any expenses which might be incurred on his account during his sickness. V did send for a physician, and furnished W with every necessary and attendance during his sickness, which in a few days ended fatally. On his death V paid for all the expenses, including the physician’s bill. In an action of assumpsit brought against him by W’s administrator, to recover the amount of the deposit. Held, that-V was to be allowed for the amount paid the physician, if it Was such as he was entitled to receive, as well as the other expenses. That the fund placed in his hands by W, was to be considered as a special fund, and that in relation to it he was tobe looked upon as a trustee, or agent, of the physician, for whose remuneration it was in part created; but that it would have been otherwise if V had received the deposit for safe-keeping only.</p>

Cross appeals from the Court of Chancery. In order that this case may he fully comprehended, we give the statements made of it by the Chancellor, and by the appellants’ counsel, on the appeal by S. and T Ringgold. The appellants’ counsel stated that the original bill in this case was filed on the 29th of January 1811, by Mary Ringgold, wife of Thomas Ring-gold, and the children of said Thomas and Mary, by James Oittings the elder, their next friend.

Boyle for the defendant in error, had moved the court, on a former day during this term, to docket this action, and dismiss the writ of error sued out by the plaintiff in error — no record of the proceedings intended to be removed having been transmitted to this court.

The bill filed by the appellee on the 13th of March 1823, stated that in the year 1814 James Hurtt died seized and possessed of a considerable real and personal estate, leaving nine children, viz. Mary, Henry, Samuel, Elizabeth, Adah, Martha, James, Sarah and Ruelma, the three last minors, under the age of 21 years.

In this case the bill of the complainant, (now appellant,) stated, and the p trties admitted, that in 1817 Peter Da~ shiell and Richard Bennett were partners in trade, dealing in merchandise, under the firm of Dashiell and Bennett. That Chase and Tilyard, being indebted to the complainant, drew a bill of exchange on Dashiell and Bennett, directing them to pay to the order of the complainanl $700, which was accepted by Dashiell and Bennett.

Assumpsit for money '.aid out, lent, advanced and expended. The plaintiff, (now ap - pellant,) at the time of filing his declaration, filed therewith an account of his claim against the defendants (the appellees,) with an account of sales of 100 barrels of herrings received by the plaintiff from the defendants, and by him sold to sundry persons, among others, 51 barrels sold in September and October 1817 to Joseph B. Eves, at @4 50, per barrel, amounting to @229 50.

<p>riefore the act of 1786, eh. 45, (to direct descents,) a devise of land by A o his son ,f, and his heirs, and other land to his son G, and his heirs; and in case either of them “should decease, having no lawful issue or heirs of Ais bodyf then the surviving son “to have his deceased brother’s part of the land,” to him and his heirs; and in case both sons “should decease, Heaving no lawful heirs of their bodies,” then all the aforesaid lands unto die testator’s three daughters, S, S, & N, to he equally divided between them, would have vested in J and G each, estates tail general, in the lands respectively devised to them, with cross remainders in tail general, remainder to S, S, & N for life. But by operation of that act, the devisa being made in 1792, J and G took virtually estates in fee in the lands devised to them respectively; and on the death of G, without issue and intestate, J, and S, S, and N, surviving him, J took by descent from him, one-fourth of his estate; and J also dying without issue and intestate, that, with the whole of the estate devised to him by his father, descend. ed to his three sisters S, S, and N, as his heirs at iaw.</p> <p>Dn a bill filed against S, S, and N, as heirs at law of J — Held, that the land which thus descended from J, was subject to be sold for the payment of his debts.</p> <p>The words “without issue” in a will, when applied to dispositions of real estate, ex vi termini, mean an indefinite failure of issue, if there be nothing in the will restricting it to a failure at the time of the death of the first devisee, or to some other time or event.</p> <p>To have no issue — to die having no issue, and to die without issue, are technically and judicially convertible terms.</p> <p>The word leaving, as well as the words having and without, in devises — “and if he shall die without leaving any issue” — “without having issue,” or “without issue,” has acquired a technical judicial decision, and when applied to real estate, means an indefinite failure of issue.</p> <p>Is dispositions of personal property, the courts generally incline to the construing a limitation after a dying without issue, to mean a dying without issue at the death of the first legatee, in order to support, if they can, the limitation over; yet in relation to real estate, the construction is generally otherwise.</p> <p>The circumstance of a limitation over, being to a survivor, and his heirs, or only of a life estate to a person in esse, has not the effect, in dispositions of real estate, in either case, to restrict the established legal meaning of the words, “leaving no lawful heirs of their bodies,” to a failure al the death of the first taker, or survivor.</p> <p>If there be a devise to one generally of freehold and personal estates, without any words of limitation, he will take an estate for life only, m the freehold, but the personal property absolutely.</p> <p>By the act of 1782, ch. 23, the ancient mode of docking estates tail, by common recovery, is abolished; and any person seized of any estate tail, in possession, remainder or reversion, may convey the same in the same ' manner and form that a tenant in fee may.</p> <p>Before the passage of the act of 1786, eh. 45, estates tail were not liable for debts contracted by tenants in tail; but by that act estates tail general, created since its passage, were virtually abolished, and converted into estates in fee simple, and have now all the incidents of lands held in fee; they are descendible, transferable and devisable, and subject to be soló’ for the payment of debts, as estates in fee.</p> <p>Estates tail general, divided among heirs, taken by election or sold by commissioners, are held in fee simple.</p> <p>By the act of 1786, ch. 45, lands held in fee simple and fee tail general, created since its commencement, descend first to the child or children, and their descendants, if any, equally; and if no children or descendants, to collaterals indefinitely.</p> <p>The legislature having a right to prohibit the creation of estates tail, must have a right to direct in what manner, lands so held by subsequent creation, should descend.</p> <p>A dying intestate, means a dying without making a Valid and operative disposition by will.</p> <p>Estates tail general, created before the act of 1786, and estates tail special, are excepted from the operation of that act.</p>

This was an action ®f assumpsit brought in the names of oe tppellants, (tho ji’niniiffs in the court below)) against the appellee., (the defendant in that court.)' The declaration counted upon the contract recited in the bond, a copy of which will be found in the bill of exceptions; and also averred that the defendant was put into the possession of the land sold to him on the day of making such contract, and afterwards accepted from the plaintiffs a sufficient deed conveying…

On the 8tli of May 1818 á writ of scire facias issued, out of Baltimore county •court, on a recognizance of special bail entered into in the usual form in that court at September term 1816, by Joseph Cappeau, (the appellant,) for Charles Cappeau, at the suit of Middleton and Baker, (the appellees,) in a plea of trespass on the case, &c. by the said Middletón and Éaher against the said Charles Cappeau,• in the same court prosecuted, &c. The •Writ of scire facias then stated,…

<p>party and a witness, it is competent for such other party to extract from the witness the whole of that conversation. if one party gives in evidence a part of a conversation between the othei?</p> <p>A declaration which contains a count for matters and articles píoperiy chargeable in account, as appears by a particular account filed, no ac-' count being filed; and another count for special services, which did not state an assumption of any particular sum, will not authorise a recovery.</p> <p>Where the pleadings were in that state, and the evidence contained fit the bill of exceptions showed the plaintiff had some claim, and the verdict and judgment being for him, the appellate court, on reversing the judg» pent, awarded a procedendo.</p>

Action of assump? íit. The writ was against the defendant (now appellant,) in Sis own right. The declaration .contained two counts.

Ej’ectment “for all that tract or parcel of plantable land, being part of a tract of land called Resurrection Manor, lying and being in the county aforesaid, containing 251 acres.” The defendant, (now appellant,) pleaded not guilty, and issue was joined, At the trial the plaintiff read in evidence a certificate of survey of Resurrection Manor,.m&deon the 24th of March 1650, for Thomas Cornwallis, containing 4000 acres; also the record of a judgment rendered in Saint-Mary’s…

The complainants in that court, (now appellees,) filed their bill on the 25th of September 1820, against the appellants, and Edward Priestly, in which it is stated that on the 24th of March 1819, Betts, (one of the defendants and appellants,) being indebted to the complainants in the sum of $1700, upon two promissory notes, one for $700, dated the 22d. of February, and the other for $1000, dated the 25th of February then last passed, payable 60 days after their respective…

This was an actio» of assumpsit brought by the appellant, Robert Oliver, surviving partner of John Oliver, against the appellee, and one Robert Taylor, (who was returned non est,) for money-had and received; for money lent and advanced; for money laid out, expended and paid; on an insimul computassent, and on a promissory note. The writ was issued on the 14th of March 1823.

The bill, filed on the 14th of October 1819, by the appellee against the appellant, stated that William Conner, the father of the complainant, .died intestate in the year 1799 or 1800, seized in fee of a tract of land lying in Jlnne-Arundel county, called Holloway, or Oliver’s Preservation, containing 147 acres, which descended to the complainant, and his brother Marmaduke, and his sisters Harriet, Nancy and Matilda.

This was an action of assumpsit, in which the writ was sued out against Christopher Baborg, (the appellant,) as surviving partner of Christopher Baborg. The declaration contained four counts. The first count averred that Jacob Wagner on the 23d of January 1817, at George-Town, in the District of Columbiaf made a promissory note, bearing date the day and year aforesaid, and thereby promised to pay Christopher Baborg and Christopher Baborg, junior, by the name of Messrs.

This was an action of assumpsit brought in the names of the President, Directors and Company, of the Bank of Columbia, (now appellants,) against the appellee, upon a promissory note drawn by Samuel Fitzhugh at George Town, in theDistriet of Columbia, on the 31st of March 1818, for @2500, and payable, sixty days after date, to William Fitzhugh, junior, (the appellee,) or order, and by him endorsed to the plaintiffs.

This was an Action of replevin for sundry goods and chattels, and a negro boy named Jack. The replevin bond was executed on the 23d pi O.ctober 1821, by Gerard N Causin, and others, to the defendant, (now appellee,) for prosecuting the writ of replevin in the name of the plaintiffs’ testator, The defendant pleaded, 1. Property in himself, and 2. Property ín on.e Sophia Marks. Issues were joined on the general replications tq those pleas.

Appear from Harford County Court. This was an action of assumpsit. The declaration contained three counts.

The nature of the case will sufficiently appear from the decree of the chancellor, and the statement made by the judge who delivered the opinion of this court.

KppEAL from the Court df Chancery. The bill in this ease Was filed on the 1st of July 1818, by the appellees against Esther Buchanan, and others, as heirs at law of William Buchanari,… Held: that the covenant was valid, and that the widow might recover the sum stipulated to be paid, from the executor of her deceased husband. But the contract, in this case, does not. merely stipulate for the payment of money upon the happening of a certain cob tingency, and nothing more.

<p>The strictness and nicety which have been wisely adopted, in the trial of questions arising on policies of marine insurance, are not to their full extent applicable to the policies of a fire insurance association, formed for the individual accommodation and security of its members, the risks being assumed on tile knowledge acquired by an actual examination made by the officers of the company, and not on the representations coming from the assured.</p> <p>Such an association cannot be viewed as involving in it a mutual relinquishment of the right of exercising those ordinary necessary acts of ownership over their houses, which have been usually exercised by the owners of such property; and, consequently, the insured is authorised t® make any necessary repairs in the mode commonly pursued on such occasions; but if by gross negligence or misconduct of the workmen employed, a loss by fire ensue; or if alterations be made in the subject insured materially enhancing the risk, and not necessary to the enjoyment of the premises insured; or which, according to usage and custom, were Rot the result of the exercise of such ordinary acts of ownership, as in the understanding of the parties were conceded to the insured at the time of the insurance, and a loss by fire is thereby produced, then are the underwriters released from all liability to indemnify for such loss.</p> <p>iSn the absence of any contract, or established rule of law, determining what repairs or alterations the insured was authorised to make, or whether if authorised, they were made in the usual way, the jury is the proper tribunal to decide those questions.</p> <p>Alterations and additions to houses insured against fire, do not per se change the risk; they remain subject to the same p. rils, although their degree may be increased or diminished, and the jury is the proper tribunal t© decide whether the risk has been increased.</p>

Replevin by the appellee against the appellants for a sloop or vessel on the stocks, taken in a certain place called The Ship Yard of the plaintiff.

County Coart. This was tin action of debt, brought by the appellants against the appellee, as one of the sureties in the following writing obligatory, to wit. “Know all men by these presents, that wc, Ralph Higginbotham, Robert Purvianee, Daniel Delszier, Howard Johnson and Nicholas G. Ridgely, are held ami firmly bound unte the President and Directors of the.

Appear from Charles County Court. Ejectment brought by the plaintiff below,, (now appellant,) to recover “all that tract or parcel of plantable- land called Borough Hall” containing 500 acres more br less. Defence was taken on warrant by the defendant, (the appellee,) under the plea of not guilty.. Issue was joined and plots were returned..

<p>A tract of land may acquire, by reputation, a name different from that wliici\ it bears in the patefit, and may pass by such acquired name, in an action of covenant, where the plaintiff sued out a warrant of resto-, vey, and plots were returned, to establish his claim he cannot examine a witness as to the location on such plots, who was neither examined upoa nor attended tile survey.</p>

<p>On the 25th of January 1817, D agreed with W, under seal, to deliver to him or order at-Z, 250 barrels of flour, not less than l-3d of which to pass as fine quality, the remaining 2-3ds of superfine, to be at said place. ■ by the 1st of March then next, to be lined and in good shipping order; and to deliver on the 15th of the same month 250 barrels of flour of same quality as the first mentioned quality, and in like order, to W, or order, at the above named plaée; for which flour, on its delivery as above, tV bound himself to pay, &c. In an action of covenant"on this contract ■ the breach assigned being that the flour when delivered was sour, com- . toon, inferior, and of bad' quality, and not in good shipping order, and would not and did not pass inspection as fine or superfine.--Held, that the inspection was no part of the contract, as it related to the time and place of delivery, but only the evidence or test by which it was agreed the quality of the flour should be ascertained; that the moment the stipulated time for the delivery of the flour had passed, the contract Was either performed or broken, and it was only necessary to carry it to a place for inspection, to furnish evidence of its quality; and that the difference of price át Z, at the time stipulated for i.ts delivery, between the flour delivered and that contracted for, was the true measure of the plaintiff’s damages in this case.</p> <p>In an action on an agreement to deliver a specific article, at a particular time and place, to be paid for at the time of the delivery, the measure of damages is the same, whether brought for a nondelivery, or a delivery of a different quality from that contracted for. The value of such article at the time and place of delivery, is the true measure; unless where the contract showed it was for a particular purpose, and special damages were laid in the declaration.</p> <p>In proving the. relative prices of different qualities'of flour at Z, i'n 1817, ■ other testimony is admissible than direct positive proof from a witness who knew the value at that place; in the absence of such positive proof the jury may infer such value, from proof of the price 'of each kind of flour in 1817, at .other places in the neighbourhood of Z, and at N O, a. port to which flour was commonly sent from Z, for inspection and sale; and this latter species of evidence, which is admissible for the above pur- . pose, is not secondary, though of a less conclusive character than direct proof.</p> <p>Where it was doubtful, from the want of care in drawing a bill of excep» ' tions, whether the whole testimony of a witness was hearsay, part of it being unquestionably so, the appellate court made a comparison of the several parts of the testimony, and determined the whole to be hearsay, and therefore incompetent.</p> <p>information received by one partner, the witness, from his copartner, of the price of merchandize purchased by him at Z, for which the witness knew that his house at B, where he resided, paid at the price mentioned, is but hearsay evidence pf the price of such merchandize at Z.</p> <p>Where a witness in his answer taken under a commission declared, "that he was called on in the spring of the year 1817, to state the difference usually allowed on the sale-of flour between superfine, fine, &.c. that he then stated the difference was as follows,” &c. — Held, that this might be true, and yet the witness have no knowledge of the facts; his declaration being, that he made the statement, and not that it was true. Such tes» timony is not admissible in evidence.</p>

Action of assumpsit for money lent and advanced, paid, laid out and expended, and an insimul computassent. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined. At the trial the plaintiff, (the appellant,) offered in evidence the following bill of exchange. “Mr. Jno. Gooding. Pay to the order of Mrs. Matilda Cathell five hundred dollars, and charge the same to your ob. st. Bobt. M. Goodwin. $500.

Action of assumpsit The writ issued on the 11th of February 1822. The declaration contained a count on a promissory note, dated at Boston ok the 15th of July 1816, for $88, payable in four months, with interest, executed by the intestate of the defendant, (the appellee,) to the plaintiff, (the appellant.) The defendant pleaded non assumpsit, and non assumpsit infra tres annos.

Brown, and by him endorsed to Martin Eichelberger, who endorsed it to the plaintiff. The, case is fully stated by the judge who delivered the opinion of this-.court.

jlnne-Jlrundcl County Court. Ussumpsit for money lent; for money had and received, and on an insimul computassent. Non assumpsit pleaded, and issue joined.

This was an action of assumpsit, brought by the appellants against James Montandevert, and Henry Phelps, surviving partners of Jonathan 0. Walker, deceased. Held: on their part, to render every assistance in their quality of merchants, consignees, and patented, to facilitate the recovery of the debts due by Dennis and Brown. Port-auPrince, Haiti, 7th September 1819. (Signed,) Robert Golder, James Booth. Examined. — True copy. — Detre Leon, clerk. “Code of civil proceedings.

This case, the facts of which are stated by the Judge who delivered the opinion of this court, was argued before Buchanan, Ch. J. and Earle, Martin, Stephen, Archer, and Dorset. J. by