Volume 1 — Harris & Johnson's Maryland Reports

EJECTMENT for a tract of land called Tally’s Addition Corrected, also Tnlly’s Addition and Eoe’s Lane. The plaintiff’s lessors claimed title as devisees under the will of Samuel Eoe, deceased, dated the 5th of May 1776. An objection was made in the orphans court in April 1777, to the probat of this will. The witnesses to the will were dead. 1. The question before this court was, Whether it was the will of Samuel Eoe?

Scire eacias upon a judgment obtained in this court, on a verdict in an action of trespass for mesne profits, brought by the present plaintiff against Dixon in his lifetime. On the day before the judgment, Dixon had conveyed all his real estate by deed to the present defendant; and after the judgment, upon the payment of certain sums of money by the defendant for him, he (Dixon) made a bill of sale of his negroes also to the present defendant.

<p>Tkis was an action of trespass for an assault and 7 battery committed by the defendant on the plaintiff's J * * <*1« SM,t.</p> <p>The question was, Whether such an action was maintainable?</p> <p>that although no case was tobe found in the hooks directly in point, slavery not being known in England, yet upon the principle of its being a violation of the plaintiff’s properly, in which .case, generally speaking, an action of trespass is supportable at common law, this action ought to be sustained. That it was not essential to prove a loss of service in order to support such an action, ise cited Barnes’s Notes, 452, where it was decided, that an action of trespass might be supported for beating the plaintiff’s horse; and 6 Jnstr. Cler. 622, 633, (which cites 2 Lutxv. 1481, as S. C„) that one may justify an assault and battery where the plaintiff had assaulted and beaten his horse. He also cited 20 Vi-ner 454, pi. 8, (which cites Bro. Mr. Tresp. pi. 442, the case in the year book of 20 U. mi. ch. 5,) That a lord might have had an action for the battery of his villein; which is founded on this principle — that as the villein could not support an action, the injury would be without redress unless the lord could. But not so where, the servant could support an action, because then the defendant would be, liable to be doubly charged, which ought not to be, and therefore in such case the master can support an action only for his special injury, to wit, loss of service,</p> <p>He further observed, that he had been applied to some years before, by Colonel Lloyd, to bring an action against a person for beating one of his slaves; that he at first expressed to him his doubt whether the action lay in such case, and that Colonel Lloyd obtained the late Mr. Jenings’s written opinion, which he shewed to him, and which was to this purpose: — That he had brought such actions himself, and had often known them brought in the provincial court, Upon which, Mr. Bullitt said, he brought the action for Col. Lloyd, and no objection to it of that kind was taken.</p> <p>cited 2 Stra. 872, Slater vs. Swann, where Lord Ch. J. Raymond said, “that an assault on a horse was no cause of action, unless accompanied with a special damage.”</p> <p>That if the present action could be sustained, a master might bring an action for a mere assault on his slave, or for slandering his slave,</p> <p>The case was postponed for further consideration until the nest day, when judgment was entered for the defendant.</p>

EjectMeNT for a tract of land called Jarrett’s Bis-lying in Harford county. Defence was taken on warrant, and plots were made. 1.

ExRCTMENT for part of a tract of land called Hill’s A Forest, lying in Baltimore county. Defence on war-cant, and plots returned. 1.

Ejectment for a tract of land called Mount Pleasant, lying in Washington county. General de-fence, and issue joined. The plaintiff at the trial produced and read in evidence to the jury, a patent granted to the defendant on the 15th of February 1791, for the tract of land ■called Mount Pleasant, containing'2575 acres.

This was an action of ’Replevin, instituted in Frederick county court, and removed by appeal to this court, on the part of the defendant in the court below. The action was brought in the name of the appellees5 intestate, in his life-time, for a Gelding. The death of the plaintiff, in the court below, was suggested, and his administrators permitted to appear and prosecute. Non cepit and property were pleaded. The general replication replied, and issues were joined.

It was an action of debt upon a writing obligatory, dated the 15th of November 1785, in the penalty of 40001. current money, conditioned that Oxoings, (theplaintiffin error,) should Convey and make over, by a good and sufficient instrument of writing, on or before the 1st of November 1786, the quantity of 4000 acres of patented preemption land, situate and lying in the Kentucky settlement, and commonwealth of Virginia, according to the laws of the said commonwealth, unto…

Appear from a decree of the court of chancery dismissing the bill. Held: and still do retain the said bond. That in the account of the defendants, against the said Voorhees & Co. they have charged the exchange at 701 on the 10OZ, when it ought, agreeably to the custom and usage among merchants, to have been charged at G6J 13s 4d on tise ,100i sterling.

Assumpsit for money due for goods, wares and merchandizes, sold by the plaintiff to the defendant. The plaintiff was a merchant of Baltimore, and the defendant a retail merchant of Somerset county.

INDICTMENT for Murder. The prisoner had been ivied and found guilty, and was now brought before the court to have sentence passed upon him.

Ejectmert, with seven separate demises, for a tract of land called Fates his Forbearance, lying in Baltimore comity. The defendants took defence on warrant, and plots were made, The plaintiff at the trial, offered in evidence to the jury a deed from George Fates to John Israel, dated the 5th of July 1712, for a moiety of the tract of land fop which the ejectment was brought, which moiety was described in the said deed by courses and distances.

Iat this rase a judgment was entered at May term 1799, for the penalty of the bond and costs, to be released on payment of a particular sum, with interest and costs, with the following agreement: “This judgment to bind assets which are or have been in hand, and future assets as they arise, and which may be subject to this judgment in a legal course of administration.” The plaintiff sued out a fieri facias upon the judgment, returnable to this term, and there not being any…

Ca, Sa. upon a judgment rendered in this court at May term 1800. The sheriff returned the writ cepi, and brought the defendant into court, The defendant produced to the court his discharge under the insolvent law of Pennsylvania, since the cause of action accrued in this case,

<p>Deeds for different parts of a whole tract of land located on the plots, may be read in evidence, though such deeds are not themselves severally located.</p> <p>The jury may presume a grant regularly issued where there had been a certificate of stirvey returned, and sundry conveyances and possession by per*» sons claiming thereunder.</p> <p>The register of the land office examined as a witness as to the loss of records of Ins ofiiee, and as to certain practices which prevailed therein previous to the revolution.</p> <p>The jury way Jives time a grant regularly issued ^vhere there had Leen a certificate of survey returned, and sundry conveyances and possession by persons claiming thereunder.</p> <p>The register of the land office, examined as a witness us to the loss of records ofhis office, and as to certain practices which previous to the revolution.</p>

This was an action of ejectment, brought in Baltimore county court, and removed by the defendant to this court by a writ of certiorari, for four tracts or parcels of land, viz. United, Friendship, otherwise called The United Friendship, Ludloe’s Lott, Larkin’s Addition and Lloyd and Ludloe’s Lott, all lying in Baltimore county. Plots returned. The defendant took defence for all the land included in Larkin’s Jid~ dition, and The United Friendship. 1.

<p>This was an action o,f assumpsit removed from Anne-Arundel county cqurt, by a writ of habeas cor- ‘ # ' ' pus cum causa. The declaration contained three counts, 1st for sundry matters, &c. as per account filed, for work done on a house; 2d for work, labour and services', and 3d a quantum meruit for work and labour, &c. The defendant pleaded the general issue.</p> <p>The plaintiff at the trial offered evidence to the jury to prove, that he had, at the instance and for the use of the defendant, and at his, request, done the w ork and labour mentioned in the account filed.</p> <p>The defendant then uffered evidence to prove, that the articles mentioned in the said account, are part.of a house which the plaintiff undertook to build for the defendant, on the following terms, to wit: That 300k was to be paid by the defendant to the plaintiff for the building the said house, in the following manner: 200 dollars on the raising the house,* 200 dollars on the covering in the bouse; and the remaining 400 dollars to be paid between the last mentioned work, and On the final completion of the work. That the plaintiff undertook to finish the said house by the f2th of November 1798. That the defendant, ip addition to the money aforesaid, agreed that the plaintiff should have a negro man named Simon, to assist during the building the said house, That some time about the 27th of November 1798, the plaintiff told the defendant that he would not go on with the said work, and at that time the house was not covered in. The defendant then informed the plaintiff, that if he would go on and finish the covering in of the house, he would pay him. the second payment; which the plaintiff refused.</p> <p>The plaintiff then offered evidence to prove, by the defendants witnesses, that he bad employed two work» men under him to build the said house, and that the said workmen did, on account of the plaintiff, and under the contract made between the plaintiff and them, go on and cover in the raid house; that during the time they were so employed, and after the said 27th of November 1798, the .defendant was frequently present with them while working on the house; that the said workmen, with the consent of the defendant, did charge the plaintiff with tiie work by them done until the house was covered in; that the said workmen did finish the house; and for the work by them done after the covering in as aforesaid, the defendant paid them; but for work done after the 27th of November aforesaid, and before the covering in of the house, the defendant informed the said workmen the plaintiff was to pay them.</p> <p>The defendant offered evidence to the jury to prove, that a special contract and agreement was made and entered into between the plaintiff and himself, as to the building of the said house, and the work and la-bour thereon to be employed and expended; and that the said work and labour, for which the plaintiff claims compensation, was made and done in pursuance of the said special contract and agreement, which contract and agreement was not complied with. And, on the prayer of the defendant by his counsel,</p> <p>The Coukt [Chase, Ch. J. Duvall and Done, J.] directed the jury, that if they were of opinion, from the whole of the evidence in this cause, that there was a special contract and agreement between the plaintiff and defendant to build a house for a certain sum, to be paid at certain periods, that then the plaintiff cannot recover under the counts in his present declaration. The plaintiff excepted,</p> <p>Verdict and J udgment for the defendant. The plaintiff appealed to the court of appeals, and at June term 1804, the appeal was argued in that court by the same counsel.</p> <p>For the appellant it was contended (a) that a special agreement might be given in evidence on general counts; for which were cited, Payne, et al. vs. Bacomb, Doug. 651. Bull. N. P. 139. Fitz. 302.</p> <p>For the appellee'it was contended, that if there be a'special agreement, it must be declared on, and if declared on, must be proved; so that in no case could a recovery be had on the general counts; for which were cited, Esp. 138. Bull. N. P. 145. Doug. 23. 2 East, 145. 1 T. R. 133.</p>

<p>If a cause be under notice of trial* and the defendant under a rule to employ new counsel, anda copy of such rule beserv. ed on him, the court will enter judgment against him ifhe does not appear in person, ol* by attorney, though the rule be laid at the same term.</p>

Ai>i>eae from Frederick county court. It was an action of trover for notes or single bills. The general issue pleaded. 1. The plaintiff, (now appellant,) át the trial, proved that the notes mentioned in the declaration were put into the hands of the defendant, (now appellee,) by Jacob Wilson, the plaintiff's testator, to be collected for and paid over to him the testator.

<p>Assumpsit for goods sold and delivered. The facts were these: The defendants, who were wholesale merchants residing in the city of Baltimore, some time in the spring of the year 1794, by their agent Mr. Carruthers, of London, delivered to the plaintiffs, who were merchants residing in London in Great Britain, the following orders, viz. «Schedule of linens, &c. to be shipped by Messrs. Gray & 'Freeman» of London, on account and risk of John and Joseph Swan, of Baltimore, and fully insured and marked US. No. 50,” &c. [Here follows the specification of the quantity and quality of the goods.} “The above to be shipped in the brig Two Brothers, or first American vessel for Baltimore.” In compliance with these orders the plaintiffs on or about the 3d of June 1794, shipped the goods mentioned in the above schedule, on board the brig The Brothers, to the address and for account and risk of the defendants; and in a few days thereafter effected a policy of insurance on the said goods to their full value, and in the policy warranted the brig to be American property. The brig was afterwards, in the due prosecution of her voyage from London to Baltimore, captured by a French privateer, called Le Ca Ira, and carried into Saint Bar-tholomews, where she and her cargo were libelled by the captors in the court appointed by the French republic, for the trial of prizes, and by that court adjudged a goodprixe, and directed tobe sold for the benefit of the captors, which said adjudication is as follows, to wit: “Extracts from the minutes of the register’s office, of the commission appointed for the trial of the prizes made by the privateer Le Ca Ira: In the name of the French people, to all those who these presents may see, greeting. Examined by us Fierre Bourdichon, Claude Reymond Fenicaud, Jean II. Gassies, and Bernard Golh, judges appointed by the citizen Ungues, commissary, delegated by the national convention for the windward Islands, to judge definitively the prizes made by the privateer Le Ca Ira, captain Paris, and particularly the brigantine “The Brothers,” prize to the said privateer. The papers found on board the said vessel, The Brothers, translated, &c. are as follows:</p> <p>1st. A passport for the said vessel, dated at Georgetown Maryland, the 6th October, 1789. A recommendation given captain John B. Smith by the plenipotentiary of the United States of America at the court of Great Britain, in order that he be not molested, and that ail assistance and protection be granted him — the said recommendation dated at London the 2d of June 1794, and to be in force for the time of six months.</p> <p>Signed, Thomas Pinckney.</p> <p>2d. A passport granted the said vessel The Brothers by Thomas Pinckney, minister plenipotentiary, and Joshua Johnson consul of the United States of America, dated the 16th April 1793, for her voyage from Amsterdam to St. Eustatia.</p> <p>3d. An invoice dated 24th May 1794, beginning by these words — “Account of merchandises received on board The Brothers, capt. John B. Smith, (B.) from Baltimore” — without signature.</p> <p>4th. Another invoice of the merchandises, that the said Capt. says belongs to him, beginning as follows— “London, 17 June 1794. Captain .7. B. Smith bought of Sterling, Hunters & Co” &c. &c.</p> <p>5th. A certificate of the customs of London, by which Cap. John B. Smith, & Christopher Whipple, his mate, bind themselves not to land any of the merchandises in any of the ports of England — dated 20tb June 1794.</p> <p>6th. Ten bills of lading, by which it appears that merchandises were shipped at London for America.</p> <p>7th. A bill of exchange drawn from Maryland on the 28th August 1793, on London, in favour of Jno. B. Smith, (captain,) and protested at London 13th October 1793.</p> <p>8th. A letter conceived in these words: Sir, you will be pleased to be with us to-morrow at 10 o’clock, in order to have The Brothers dispatched. We could have wished to have seen you to-day, as we have positive orders from the person who has purchased the brigantine. We are somewhat surprized at your having employed other brokers.</p> <p>(Signed)</p> <p>Caldcleugh & Boyd.</p> <p>January 22d, 1794.</p> <p>9th. A muster roll of the said vessel, without date or signature, by which it appears that the said vessel sailed from London for Baltimore, and from thence to go to any part of America, to take her cargo for Europe. The interrogation of John Harman, sailor, on board the vessel taken this day, all the other documents produced, having heard the report of citizen Bourdichon one of the judges. The conclusions of the national commissary in this party and all considered. We say, that according to the laws of the state, and especially the ordinance 1681, for the navy, article 5, concerning prizes, it is evident, that all ships, wherein the enemies of the state are concerned, are lawful prizes, since that, according to the said article, it would authorise the capture of any ship whatever, when she was loaded with effects belonging to the enemy; the capture is then more valid when the subject of a state at "war is co-proprietor of the vessel captured, which is proved tobe the case in the prize, The Brothers', the papers produced proving thatshe has a co-proprietor in London, which leaves no doubt of the validity of the prize. Considering moreover, that the captain’s papers are not in order, the muster roll he has produced being both without date or signature, fwhich is a manifest trespass of the law,) every thing concurs to declare lawful the aforesaid prize in behalf of the concerned in the privateer Le Ca Ira, who' is the captor thereof. Therefore we declare the aforesaid brigantine The Brothers, together with her cargo and appurtenances, to be the right and lawful prize of the aforesaid privateer Le Caira, who is the captor thereof. We order that the whole be sold,” &c. &c. «‘Done at Port Liberty, in the Hall of the Palace of Justice, by us the aforesaid judges, the 23d vende-maire, in the afternoon, third year of the French Republic, one and indivisible. Signed,”- &c. &c.</p> <p>As soon as the plaintiffs were informed of the capture and condemnation of the vessel and cargo, they, on behalf of the defendants, made a demand on the underwriters for payment for the loss. The underwriters refused to p.ay; and the plaintiffs having waited till the expiration of the time limited for the payment of the goods, demanded payment from the defendants, who also refused; and this suit was brought to recover the amount as charged in the invoice, to wit, 1393Z 2s &il sterling. The shipment of the goods and effecting full insurance, agreeably to orders, were admitted by the defendants.</p> <p>contended, and it was so proved by several respectable merchants examined on the occasion, that by the usage of trade the shipper, when he effects insurance and holds the policy, is bound, in case of loss, in the first instance to have recourse to the underwriters, and cannot claim from .the merchant hei'e till he has taken all legal measures to recover from the underwriters, and has failed; that in this case the plaintiffs were the holders of the policy, and it does not appear from any thing before the court, that they have taken any legal measures to enforce the payment of the policy, and therefore could not at this time maintain their action for the value of the goods against the defendants.</p> <p>contended, that admitting the usage of trade, as stated by the counsel for the defendants, to be correct in its general application, and to such cases in which legal measures against the underwriters would be productive of the desired object, to wit, the obtention of the money on the policy-, yet it could never apply to cases where the underwriters are absolutely discharged from their contract, and from whom tío payment could be legally enforced. In cases like the latter, the shipper of the goods is not obliged to waste time and money in the prosecution of suits in which he cannot succeed, but is entitled to claim from tiré purchaser immediately; that in the case before the court, the plaintiffs could hot, by any legal measures, compel payment from the underwriters; for in the policy on the merchandize in 'question, the brig was warranted American’. She is so stated to be in the orders for effecting insurance delivered by the defendants’ agent to the plaintiffs. But the sentence of the courts in which the vessel anti cargo were condemned, (and which sentence is conclusive on the question therein decided,) proves that the brig was not American. That it was true the. court have not decided in express terms that the vessel was “enemy’s property,” and that she was condemned on that express ground. But that was a conclusion necessarily flowing from the facts stated, and the reasoning of the court on those facts previous to their decree. That if the decree of the French court Was conclusive that the vessel was not American, as warranted, the policy was void, and the underwriters were discharged from all responsibility; and the plaintiffs of course entitled to recover in the present suit.</p> <p>Martin, (Attorney General,) and Harper, in reply, admitted that a condemnation by an admiralty court, that the vessel captured “was enemy’s property,” 'however false in fact, was nevertheless conclusive evidence against all the world of that fact. Rut that in this case the decree did not state, as the ground of decision, th^t the vessel was enemy’s property, nor ■was it necessarily to be inferred from any thing in the decree that such was the ground of the condemnation. The court only stated the evidence produced, but drew no conclusion from it. That the evidence was not such as to authorise this court to determine on what grounds the admiralty court adjudged the yessel a good prize.</p>

Bira. filed for an account of an intestate’s personal estate, to be distributed among his legal representatives. The questions in this case were two. 1st. Whether one of the representatives of a person deceased could support a bill in equity against the administrator for his share of the intestate’s estate? And 2d. Whether a purchase made fey the administrator at his own sale, under an order of the orphans court was not void? 1.

Debt upon a judgment obtained in this court for A ° ° damages and costs. The defendants relied upon the ploa of ml tiel record.

Ejectmeht for a tract, of land called Fates his Forbearance, lying in Baltimore county. The declaration contained seven separate demises, viz. from Charles Carroll, of Carrollton, for one fifth, Nicholas Carroll, one fifth, Daniel Carroll, of Haddington, one fifth, Robert Carter, one fifth, Abraham, Van Bibber, one tenth. Isaac Van Bibber, one fiftieth, and William Smij¡ four fiftieths.

Assumpsit upon a foreign bill of exchange, with a count for goods, wares, &c. sold and delivered, and another on an insimul compuiasset. General issue pleaded.

<p>Ejectment for a tract of land called Dorsey’s Search, and The Resurvey on Dorsey’s Search, other-0 <»/-v ti«. wise known by the name or Dor seifs Search, lyiner m * ° y 0 Annc-Arundel county. The defendant took defence on warrant, and plots were returned. The points in this case appear in the different bills of exceptions tak-on at the trial.</p> <p>1. The question in the first bill of exceptions arose on the construction of the certificate and grant of a tract of land called Dryer’s Inheritance, which were offered in evidence by the defendant. The said tract was surveyed for Samuel Dryer, on the 25th of February 1695, and the above certificate and grant stated it as «lying on the west side of the north branch of Pa-tuxent river, beginning at a bounded red oak standing by the said branch, it being a bound tree of Thomas Brown’s, and running N 62° "W 86 perches, to a bound red oak in a branch, then N 6° W 362 perches, to a bound white oak, then N 66° E 120 perches, to a bound white oak standing by the said river, then bounding on the said river, running S 5° E270 perches, then by a straight line to the first bounded tree; containing and now laid out for 254 acres of land, to be held of the manor of Anne-Arundel.”</p> <p>The plaintiff prayed the opinion and direction of the court to the jury, that the legal construction of the said certificate and grant was, that wherever the jury should find the termination of the fourth line of the said grant; that is, the S 5° E 2/0 perches line to be, that from that termination the next line must be run a straight course to the first bounded tree, the beginning of the tract, and not with the meanders of the Patuxent river;</p> <p>This prayer was resisted by the counsel for the defendant, who contended that the expressions in the said grant of Dryer’s Inheritance, according to their natural import and grammatical construction, showed that the meaning of the parties was, that the said tract should bind with the river the txvo last courses; but at least that the expressions were ambiguous, and that the meaning and intent of the parties might have been, that the binding expressions should be confined to the first of the said two last courses, or should extend to both; and being ambiguous, their true meaning and intent must be determined by inquiring into the locations of the adjoining lands taken up in that neigh-bourhood about the same time, and by the same surveyor; into the sense in which similar expressions had been manifestly used in the certificates returned about the same time by the same surveyor; the understanding and sense of the grantees of the land, and adjoining lands, as proved by the manner they had entered upon and held their respective lands for a hundred years past, and had made improvements and buildings thereon; and by the understanding of Richard Ridgely, for whose use the present ejectment is admitted to be brought, and for whom, and under whose directions it is admitted, the survey of Dorsey Hall, on the 7th of February 1794, (being in virtue of a special warrant to resurvey Dorsey’s Search,') was made, and from all other extrinsic facts that might lead to illustrate the said expressions; which facts and circumstances, the counsel for the defendant offered to give in evidence to the jury.</p> <p>Chase, Ch. S. (a). The Court are of opinion, that it is the right, and within the jurisdiction of the court, to determine the construction and operation of grants. That what passes by the grant, and the quality of estate and interest created in it, is a question of law. The intention of the parties, which is to be collected from the words in the grant, must prevail,, unless incompatible with some rule or principle of law. In determining the true construction of grants, the court cannot resort to, or draw any aid from circumstances or facts extrinsic the grant, unless there is some ambiguity or uncertainty in the description of the person who is to take or the thing which is to pass. "Where there is ambiguity or uncertainty in the description of the person or thing, evidence may be given of facts and circumstances de hors the grant, to ascertain the meaning of the parties, which then becomes a matter of fact, determinable by the jury upon such evidence as is legally admissible before them. The common instances adduced of uncertainty in the description of the person or thing, are where there are two persons of the same name, or two tracts of land of the same name, But these are only put as instances, and do not confine the inquiry to those particular cases.</p> <p>The court are of opinion, that the meaning of the grant of Dryer’s Inheritance is plain and obvious, and by no means ambiguous, or uncertain; and that the true construction of that part of it which is in controversy, upon a view and consideration of the whole grant, is to run from the end of the line mentioned in the grant, to wit, south five degrees east, two hundred and seventy perches, with a straight line to the beginning, which is admitted by the parties on the plots as there delineated; and therefore the court reject the evidence proposed to be offered to the jury by the defendant, as not legally admissible on the construction of the said grant; and the court direct thejurytorun from the end of the said line with a straight line to beginning. The defendant excepted, &c.</p> <p>2. The question in the second bill of exceptions arose on the operation of a clause in the will of John Dorsey, the patentee of Dorsey’s Search, dated the 26th of November 1714, offered in evidence by the plaintiff, viz. “I give and bequeath unto my grandson John Dorsey, son of my son Edward Dorsey, deceased, my Patuxent plantation, and the land thereunto adjoining, called Dorsey’s Search, lying in Baltimore county, to hold to him during his natural life; and from and after his decease, then I give, devise, and bequeath my aforesaid land and plantation, given him as aforesaid, unto the heirs of the body of my said grandson John Dorsey, to be begotten, for ever, and for want of such heirs, then,” &c.</p> <p>The defendant prayed the opinion and direction of the court to the jury, that no part of the tract of land called Dorsey’s Search,, which was situate in Jinne-Jlrundel county at the time of the execution of the will and death of the testator, admitting the true location of that land extended over on the west side of Patuxent river, passed by the devise contained in the will to John Dorsey, the grandson of the testator.</p> <p>Chase, Qh. J. The court are of opinion, and so direct the jury, that the whole of the land included in Dorsey’s Search, did pass and was vested in the devi-see, John Dorsey, by the will of the testator, although partly in Jlnnc-Jlrundel, and partly in Baltimore counties. The defendant excepted, &c.</p> <p>3. The question in the third bill of exceptions arose on the construction of the certificate and grant of Dorsey’s Search, the original, which was surveyed for John Dorsey on the 6th of December 1694, and granted to him the 26th of March 1696, and is stated in the said grant as “lying at Elk Ridge, beginning at three bounded white oaks standing by Patuxent river, and running and bounding on the said river N 4° E 87 perches, then N 62° E 50 perches, then,” &c. &r. “then N 1° W 48 perches to a bound white oak by the river, then S 47° E 388 perches, to a bound white oak, then by a straight line to the first bounded White oaks, containing and. laid out for 479 acres of land,” &c.</p> <p>The defendant moved the court to direct the jury, that according to the true grammatical construction and evident meaning of the expressions used in the said grant of Dorsey’s Search, (the original,) the said tract from its beginning to the second boundary ought to bind on the said river, and not to extend over the river to the westward so as to include any land on the west side of the river, and that the expressions, «and bounding on the said river,’* applied to the first course, were not in construction to be confined to that course, but to be extended to the whole of the courses stated to run from the first tree, the beginning, to the second tree by the river side.</p> <p>Chase, Ch. J. The court are of opinion, that the true cpnstruction of the certificate and grant of Dor*-sey’s Search, (the original,) according to the words ami expressions therein, is to run the first course N 4° E 87 perches, binding the same on the river Patux-ent, and all the subsequent courses according to the course and distance until you come to the course N Io W 48 perches. This construction, in the opinion of the court, is conformable to the plain meaning of the words, and gratifies every part of the said certificate and grant, and is pursuant to the intention of the surveyor, to be collected from words he has used. The construction contended for by the counsel for the defendant, disregards and rejects all the courses subsequent to the first, and cannot be admitted, there being no call or binding expression in either of the said courses; and therefore the court refuse to give the direction prayed, to the jury. The defendant excepted, &c. Verdict and judgment for the plaintiif.</p> <p>The defendant appealed to the Court of Appeals, and the case was there argued by the above counsel (a).</p> <p>Ridgely, for the appellee. The opinion of the general court is controverted by the counsel for the appellant in this case, on three different exceptions.</p> <p>1st. On the construction of the grant of Dryer’s Inheritance.</p> <p>2d. On the operation of a clause in the will of John Dorsey, which will was dated in 1714; and</p> <p>3d. On the construction of the grant of Dorsey’s Search, the original.</p> <p>First point, In order that this court may be enabled to decide on the legality of the decision of the general court, it will be necessary to call their attention to the plots where the lands in controversy are located and laid down. Dryer’s Inheritance is located on the west side of Patuxent river, by both parties. Its beginning, and other bounds, are admitted, and the location of the river Patuxent is also admitted. Dryer’s Inheritance calls for the river Patuxent, and binds on it 270 perches, and “thence by a straight line to the beginning.” By the location made by Col. Hammond, the appellant, it binds upwards of 600 perches on the river, and does not leave the river by running a straight line to the beginning. By the location made by Dorsey, the appellee, it binds on Patux-ent river 270 perches, and then runs a straight line to the beginning.</p> <p>The question then for this court to decide is, whether the grant of Dryer’s Inheritance should run a straight line after expending 270 perches as expressed therein, or whether it should not run a straight line from the end of that number of perches, but run and bind on the river 50 or 60 courses more than are called for in the grant?</p> <p>It is contended on the part of the appellee, that the construction of the grant belongs to the court, and that the court, in making such construction, will collect the intent of the parties from the grant itself, and not from any extrinsic facts. It is a rule in the construction of grants, that where boundaries are called for, and courses and distances also, that the course and distance must give way to the calls. It is also a rule, that in collecting the intent of the parties to a grant, the whole grant should be taken together, and no part' of it rejected, if the same can be gratified consistently. Let these rules be applied to the case before the court. If Hammond’s location is correct, you disregard the expressions in the grant — “straight line,” and “270 perches,” and make 50 or 60 courses, and bind 680 porches on the Patuxent river between the last boundary of Dryer’s Inheritance and the beginning. If Dryer’s Inheritance intended to bind on Patuxent river all the way, why not have said so? Why have said run a straight line? But it is contended that the grant of Dryer’s Inheritance shall not be. construed according to its own words and expressions, but by other circumstances, as, by the location of other lands made by the same surveyor, by the understanding of the parties, by the manner of holding their lands, and by my directing the survey of Dorsey Hall 100 years afterwards. That we are not to collect the intention of the contracting parties, (the Proprietary and Dryer,') when Dryer made the purchase, from the contract itself, but we are to hunt after other circumstances, some of them occurring 100 years afterwards, to know what the Lord Proprietary meant to sell, and what Dryer meant to buy, 100 years before. This doctrine, if supported, would almost destroy every grant in the state. There is scarcely a tract of land of any extent in Maryland but where encroachments have been made and trespasses have been committed. I would ask the court, whether Dryer’s Inheritance contains any inope land at tiiis time within its limits than it contained when it was first sold to Dryer? What wmuld a judge, a lawyer, or surveyor have done, if he had been called upon to lay out Dryer’s Inheritance shortly after it was taken up? Surely, in the first place he would have made application to the land office for a copy of the courses contained in the grant; he would then have run the land out according to the expressions andpourses; he would have gone to the river, bounded on it 270 perches, and then run a straight line to the beginning. Is there a single expression in the grant to warrant a continuance on Patuxent for more than 270 perches? What was the 270 perches inserted for if not to ascertain the extent to which the survey should bind on the river? Suppose the lands adjoining Dryer’s Inheritance were at this time vacant, would any surveyor say that Drier’s Inheritance could, by any principle of common sense or rational construction, extend itself on Pa-tuxent river more than 270 perches? Suppose Dryer’s Inheritance had not called to bind 270 perches on the river, would not that line have been run course and distance? To show that the general court did right in not permitting evidence to contradict or alter the grant, let me call the attention of the court to a few authorities. No parol evidence is admissible to dis-annul, or substantially vary, a written agreement; you cannot depart from the writing, but may argue touching its operation. 3 Wils. 276. No parol evidence can be given to extend or abate a. bond or deed. Cowp. 47. Where an agreement is in writing, no defect can be supplied by evidence. Bunb. 65. Courts should be very cautious in admitting any evidence to supply or explain written agreements, when the effect is to vary them. 2 Elk. Rep. 1250.</p> <p>Second Foint. Whether the whole of the tract of land called Dorsey’s Search, (the original,) passes by the will of John Dorsey dated in 1714? To be satisfied on this question, it would seem only necessary to look at the facts. On the 26th of March 1696, Dorsey’s Search was granted under the description of «al! that tract of land lying at Elk Ridge, in Anne-Arun-del county.*’ On the 27th of November '1714, John 'Dorsey, by his will, says, «I give and bequeath my Patuxent plantation, and the land thereto adjoining called Dorsey’s Search, lying in Baltimore county,” &c. It is admitted in the record by the appellant, that the grantee had settled this tract of land long before his death, and had a settlement on it when he made his will, and when he died. When the tract of land was taken up, it lay in Anne-Arun-del county. By the act of assembly of 1693, ch. 13, Patuxent river was made the divisional line between Baltimore and Anne-Arundel counties. The land on the north of the river to be in Baltimore county, and the land on the south to be in Anne-Arundel county. The act of 1726, ch. 1, again added a part of that land to Anne-Arundel county, by repealing so much of the said act of 1698, ch. 13, as made the land lying on the north side of the Patuxent, and on the south side of the river Patapsco, a pail of Baltimore county.</p> <p>In the construction of this will, I contend, that by it the whole tract of land called Dorsey’s Search passed. The intention of the testator is to be collected from the whole will, and only from the will itself. 2 Burr. 770. 3 Burr. IS41, 1574, 1622. Cowp. 840, 841. No technical form is necessary to convey the testator’s meaning. The testator’s meaning must be collected from the will itself. 2 Burr. 770. Where the intention is clear, too minute a stress is not to be laid on the precise signification of words. I Blk. Rep. 377. A court may construe a will, and from what is expressed may necessarily imply an intent not founded in words. 1 Blk. Rep. 377. 1 T. R. 596. A devise is good where the description of the devisee, or of the thing devised, has been mistaken. The intent of the devisor, if apparent, will supply the want of proper words. 1 Wils. 24 7. Gill). Dev. 17.</p> <p>Third Point. As to the construction of the grant of Dorsey's Search, (the original.) The grant of this tract describes the land as lying at Elk Ridge. The first course “running and bounding on the said river N .4° E 87 perches, then,” &c. nine courses only, between the beginning and the second boundary. By binding on the meanders of Patuxent river it makes eighty-nine courses, and each of them vary altogether from the nine. How then, without any call, can you reject those eight of the said nine courses and substitute eighty-nine in their place? Is there a single word in the grant which confines the running to the river? What were these eight courses inserted for? To ascertain the lines of Dorsey’s Search. If intended to run on the river, why not have said' running from the first to the second boundary, and binding on the river. What is the rule of construction? That in construing grants all consistent words must be retained, and none but inconsistent ones be rejected. The expressions of a grant must be gratified; they cannot be added to, nor taken from. You cannot elongate or shorten a line variant from the grant, where course and distance only are called for. The counsel for Col. Hammond would give to the stream of Patuxent all the attractive powers of the centre of gravity. They would make it partake of the qualities of the loadstone, and draw, with its magnetic touch, the needle at every point of the compass. It is to restrain Dorsenfs Search, and confine it to its meanders on one side, contrary to the courses in the grant, ■ and in violation of every rule of construction; and it is also to attract to it Dryer’s Inheritance, and thereby make' a straight line have sixty crooks, contrary to every mathematical principle.</p> <p>for the appellant, in reply, contended, that the decisions of the general court, as given in the first and third bills of exceptions, as to the construction of the grants, were upon matters of fact for the jury to decide, and not for the court, and should therefore have been left by the court to the jury. If they had been left to the jury, he is satisfied a different decision would have been the result. In the case of Martin’s Lessee vs. Muse, decided in the general court on the eastern shore, the expression in the grant was ‘running down the stream,’ &c. and the jury found the course binding on the water. If the expressions are doubtful, surely the jury are to decide. Helm’s Lessee vs. Howard, (2 Ham Sf M-Hen. 57.) Every course in the grant of Horsey’s Search, (the original,) binds on the river. It takes a departure from a tree on the river, and runs to another tree on the river. There are no stops in a grant, and the operation on the whole sentence throughout, by grammatical principle, will evidence that the expressions used were intended to denote that every course should run and bind with the river. Suppose the expressions, “binding with, the river,” had been at the end of the grant, instead of the beginning, would they not have extended throughout? Last words do not mitigate preceding ones. Restraining words at the end or beginning bind the whole. Siderfn, 328. Again, the words “binding with the river,” as used in this grant, should receive the same construction they would have received at the date of the grant. For words in ancient grants are to be expounded according to their ancient meaning. A Com. Dig. tit. Parols, (A. 1.) 383. Cro. Elia. 905. Lane’s Rep. 11. Savil’s Rep. 124. And should be so construed as to carry into effect the intention of the parties by whom they are used. 4 Com. Dig. tit. Parols, (A. 18.J 387.</p> <p>As to the second bill of exceptions. He contended that there was no distinction as to the manner of ascertaining the meaning of a will and of a deed. Ifa rectory He part in one county, and part in another, a transfer of it, stating it to he situated in the one county, will only pass the part so situated. Moore’s Rep. 176, pi. 310. A grant of a manor in the county of M, which also extends to the county of N, will only pass that part of it which lies in the county of M. 2 Roll. M. 50, pi. 8.</p> <p>The Couetoe Appeaxs. [Jones, Potts, and Dennis, J.(a)] at November term 1803, delivered the following opinion, viz.</p> <p>. In this case there are three bills of exceptions presented for the decision of the court.</p> <p>We disagree with the general court in the opinion and direction stated in the first bill of exceptions, concur with them in the opinion in the second bill of exceptions, and dissent from them in the opinion and direct tion stated in the third bill of exceptions', and therefore reverse their judgment in this cause.</p> <p>In dissenting from the opinion and direction of the general court in thejírsí and third bills of exceptions, we do not mean to say that the expressions in the grant of Dorsey’s Search bound that tract of land on the river Patuxent after the first line; or that the expressions in the grant of Dryer’s Inheritance bound the last line thereof to the river Patuxent. In neither case are the expressions used, in our opinion, so plain and explicit as to exclude all doubt as to the location of those tracts of land; and in all cases of ambiguity arising on the face of a certificate or grant} as to the location of a tract of land, we consider the jury as the proper tribunal to decide the fact of location, which may well be ascertained in such cases by evidence de hors the certificate or grant.</p> <p>In cases where no doubt or ambiguity exists on the face of the certificate or grant, as to the location, as in the case of the first line of Dorsey’s Search, or fourth line of Dryer’s Inheritance, calling for and hounding on the river Patuxent, we think it iwithin the province of the court to say, that no evidence out of the certificate or grant shall be offered to the jury to prove that those lines did not bound on and terminate on the river Patuxent, and thereby contradict the terms of the certificate or grant as to those lines.</p> <p>A procedendo was then ordered; and at October term 1804, the cause came on again for trial in the general court; upon which second trial,</p> <p>4. Mason, for the plaintiff, prayed the opinion of the court, and their direction to the jury, that if the jury are of opinion that the lines of the tract of land called Dorsey’s Search, and those of the tract of land called Dryer’s Inheritance, interfere with each other, those of the former tract must prevail over those of the latter — -the date of the certificate of the former being.prior to that of the latter.</p> <p>The defendant’s counsel did not oppose the direction prayed, but consented that it might be given; and</p> <p>The Court gave the direction accordingly.</p> <p>5. Mason also prayed the direction of the court to the jury, that the defendant, to make title to the land mentioned in the declaration by adversary possession alone, must show an adverse possession by actual enclosures, for a continued and uninterrupted series of twenty years before this suit was brought.</p> <p>Martin, (Attorney General,) for the defendant, said, he should not object to such a direction, because the defendant in this cause did not mean to defend him-, self by possession.</p> <p>6. Key, for the defendant, in his argument to the jury on the facts, offered to read to them the opinion of the Hon. James Tilghman, (now the chief justice of the second judicial district,) given by him in the year 1773, whilst an attorney of the provincial court. (a). But</p> <p>Mason, for the plaintiff, objected to the reading the Opinion of Mr. Tilghman, or the opinion of any other gentleman, to the jury, on the subject now before them. For the court of appeals, in their opinion given in this case, have said that the location is a matter of fact for the jurij, and it will not be said that the opinion offered to be read is evidence of any fact in the cause. Once admit such a practice, and 510 reason can be given why the opinions of the counsel engaged in the cause might not also be read, and for aught he knew they might be obtained, for the occasion. Indeed, witnesses might he produced to prove that they heard such a Jawyer say his opinion was that the location ought to be in such a particular way; and it will scarcely be objected that a verbal opinion would not be as good as a written one.</p> <p>Key said, he had a right to read to the jury the opinion of learned men upon the subject in dispute; that it liad been the constant practice to do so, and it had been done in the case of Beall and others, Lessee, vs. Harwood, at the last term. He admitted it was not conclusive upon the jury, but merely to show them what men experienced in land affairs thought upon the subject. The opinion of a judge, upon a question which came incidentally before the court, had often been read, and for the same reason the opinion in question may be read. It was different from opinions, as the gentleman has been pleased to say, which might be prepared to suit the occasion, or of counsel engaged in the cause; for it was given many years ago, and before the present dispute arose.</p> <p>Mason, in reply, contended, that the opinions read in the cases alluded to had been read to the court, and not to the jury, which he considered to be very different; for there was no danger in reading any paper to the court, as they were judges of what was legal, and what not. But it was otherwise with the jury, to whom nothing should go but what was evidence in the case.</p> <p>Johnson, for the defendant, observed, that as this case stood, there was no difference between reading a paper to the court, and reading it to the jury; since the jury here are judges of both the law and the fact, the court of appeals having expressly said, that the jury are to decide as to the location; any thing therefore which will tend to the formation of a correct judgment upon that fact, is proper for the consideration of the jury.</p>

Assumpsit. The plaintiff’s intestate had been * sheriff to the county of Anne Arundel, and whilst he was sheriff, sundry officers fees had been placed in his hands for collection against the defendant’s testator, which fees had not been paid.. The time allowed by law, within which sheriffs can execute for fees, having elapsed, this action was brought to recover the amount due from the defendant’s testator.

<p>The court of chancerywill compel the performance of a parol agreement, admitted by the parties to have been made and partly carried into effect but it will not compel a conveyance where a parent long before the marriage of a child, promised if the child was dutiful, and married with the parent's consent, that upon such marriage he would convey atract of land to the child, unless such promise was renewed anterior to such marriage, evevn though after such marriage the child was put in possession of a part of the land, and created some improvements thereon.</p>

Appear from the Court of Chancery, decreeing a specific performance of an agreement to convey land.

Appear from a decree of the Court of Chancery, dismissing the bill of complaint praying for the specific performance of an agreement to convey land. The facts appear in the decree of the chancellor.

Appear from a decree of the court of chancery, on the part of the complainants in that court.

Assize of novei disseisin. The plaintiff prose* cuted out of the General Court for the Eastern Shore, the following writ, to wit: “Maryland… Held: exercised and enjoyed, the said office, and discharged the duties thereof, and behaved himself well therein from the said 12th day of March 1799, until the 8th day of February 1802, when the aforesaid W. P. at Worcester county aforesaid, unjustly, and without judgment, disseised him the said W. W. of his freehold in his aforesaid…

EjectmeNT for Richardson’s Discovery and Con- ° elusion, lying in Worcester county. The counsel for the defendant objected to tiie ver-diet in a former suit being evidence, because thejudgment was reversed for error in fact, the defendant having died before the verdict was takenj and they cited 1 Sira. J62. 1 Morgan’s Essays, 94. Gilb. 63. Showers Pari. Cases.

EjectmAnt for a tract of land called Brown’s- • Discovery, lying in Anne-Arundel county. Defence on warrant, and plots returned. 1.

Ejectment for a tract of land called The Land‘of 'Promise, lying in Baltimore county. Defence on warrant, and plots returned.

<p>Trover to recover damages for 48 vats and covers, stills, worms, buckets, &c. It appeared in evidence on the trial, that a house and lot belonging to the plaintiff, had been taken under a fieri facias and sold, that the defendant was the purchaser, and the sheriff, by deed, conveyed to him the house and lot therein described, with the improvements. This house was built for a distillery, and the implements necessary to carry on the business were on the premises at the time of the sale.</p> <p>objected to this action being sustained in the name of John Kirwan, the present plaintiff. He stated that on the 3d of January 1800, an act of assembly passed for the relief of sundry insolvent debtors, in which the plaintiff's name Was included, who on the 11th of January 1800, filed his petition in the office of the court of chancery praying to be admitted to the benefit of the said law, annexed to his petition was a schedule of his property, and among other property therein enumerated, are “a still-house and apparatus, and utensils for carrying on a distilleryThat the person of the plaintiff was released by the chancellor on the 13th of February 1802, and John Coulter was appointed his trustee. That by the 8th section of the said act of insolvency, the trustee may sue for, in his own name, and recover, any property or debts assigned to him by any debtor in virtue of the said law. That the writ in this cause issued on the 13th of September 1800, after the plaintiff had been included in, and had applied for the benefit of the said law.</p> <p>He prayed the court to direct the jury, that the plaintiff can only support an action for damages for the use of the property to the 3d of January 1800, and that for the value of the property an action can only be supported in the name of the trustee.</p> <p>contended, that as no deed had been made to the trustee, the plaintiff may sustain the action; and that there was no evidence even of the acceptance of the trust by the trustee.</p> <p>Chase, Ch. J. The legal right to the property remains in the plaintiff until there is an acceptance of the trust by the trustee, .and a deed of assignment executed by the insolvent debtor, transferring all his property to his trustee. The person of the plaintiff is discharged, but he is still liable to be sued, and execution may go against his person and property.</p> <p>2* Hollingsworth then moved the court to direct the ju,T» that the apparatus and utensils for carrying on a distillery were fixturfes annexed to the freehold, and , , .. t . . passed by the sheriff's sale and deed to the defendant. That as the defendant had purchased the still-house, the fixtures passed by the sale, as the sheriff’s deed describes it as a lot of l^nd, &c. “with the improvements thereon</p> <p>Harper contended, that whatever is part of the implements of a trade may be removed, and are not fixed to the freehold, and are always so considered between landlord and tenant. He cited 1 Atk. 477, to shew what pa.ses with the freehold.</p>

Ejectment for a tract of land called The Invasion, lying in Anne Arundel county. The defendant took defence for all the land included in the deed .. , him from William Pedchcoart, and Sophia his wife, as located on the plots returned.in the cause. The plaintiff at the trial, offered in evidence a patent for the land called The Invasion, granted to Adam Barnes on the 24th of September 1747, for 1187-acres, which is truly located on the said plots.

<p>The plaintiff to recover in an action of trespass must show title on that he was in the actual possession of the place where &c.when, &c.</p>

<p>If one party gets a commission to take testimony on the terms that whether it be re* turned or not the cause shall not, on that account, be continued at the ensuing term; yet if it be returned executed at the ensuing term, the adverse party has a right to a continuance till he has time to examine the testimony, that he may have an opportunity of disproving it if he thinks necessary.</p>

Ejectment for a tract of land called Dickson’s Ivina; in Washington county.

Ejectment for a tract of land called The Number of Four, situate in Washington county, and being a part of the reserve around Conegocheige Manor, and containing 481 acres. Plea general issue, and de-fence upon warrant, Plots were returned. The plaintiff at the trial to make title to the land in the declaration mentioned, produced and read to the jury the order for reserving for the Lord Proprietary a manor of 10.000 acres of land, via. “May 28, 1724.

Issues from the court of chancery, to try whether ^«2/was a trader, &c. within the meaning of the act of congress. _ ' rr,, . .... „ „ 1. 1 hese issues arose upon an application oí Ratf 1 * ** to the chancellor, for the benefit of an act of insal-venc7 passed in his favour at November session 1801s which was opposed by Clarke, alleging that Ray was a trader, and consequently could not be relieved by * , an act of insolvency of the state. * Chase, Ch. J. (a.) The chancellor,…

<p>ERROR to the General Court. The judgment in the court below was fop the defendants in error upon a verdict in an action of assumpsit on an account stated. The verdiGt included the principal sum due, with interest calculated thereon t° the time of the verdict.</p> <p>The question here was, on affirming the judgment, whether there should be interest allowed, by way of damages, on the whole sum recovered in the general court, from the date of the recovery to this time?</p> <p>cited Hook vs. Botler(a), in which case this court reversed a judgment for the defendant below, and gave one for the plaintiff for the sum he ought to have recovered, and damages to the amount of interest on the principal sum to the time of the reversal. He also cited Howard, vs. Warfield(b). He said interest was given by way of damages, in cases like the present, in this court, as a matter of course.</p> <p>contended that it would be allowing compound interest, which the court never permitted to be recovered.</p>

Aerear from a decree of the Court of Chancery dismissing the complainant’s bill. As the decree states the nature of the question in controversy, it is deemed unnecessary to set out the bill and answers.

<p>EjectmeNT for part of a tract of land galled «Snthrapp, lying in Queen-Anne’s county.</p> <p>moved the court to direct the jury that the following expressions in the grant of the tract of land called Jlnthrapp, to wit: “Begin- ° o n #1 1 “ning at a marked oak standing on the point “running NE 100 perches to another marked oak ■ “standing by Hambleton’s creek side, and running “from the said oak E. a little northerly up the said ficreek and branch 400 perches to a marked beech tree “standing by the fresh run side,’> were not binding so as to carry the course along with the stream or creek, but the course intended was a straight line to the ** beech called for. That those expressions neither imported in themselves, nor were intended to confine the last course or line to the creek or run side, but were merely a description by which that line was to have the same general direction as the creek; that this construction was confirmed by the subsequent expressions of the same patent. Where, in describing' the last course of the same tract, which was evidently intended to bind with another creek, the expressions are definite, and admit of no doubt. They are these — “and with a line drawn from the said beech “SSW. 360 perches unto the S. main run, bounded on, Sithe with the said southern run and creek to the first ««marked oak.” From the difference of fiiose two expressions in the same grant, the same idea could siot have been intended to be conveyed, and as the lást unquestionably meant to bind upon the creek, the first could not have been so intended.</p> <p>It appears by the location of the land on the plots in the cause, to have been the intention, evidently, of the patentee, to include all the land between the two creeks; and although the expressions in the patent* if scanned with critical exactness, might not carry the line along the creek, yet taking them in the point of view in which they would be understood in common parlance, it is evident the course was intended to bind on and with the creek. The expressions in patents and certificates must be construed in a broad and liberal sense for the benefit of the grantees; first, because surveyors in those times were generally men of little education, and cannot be supposed to have spoken and written with grammatical accuracy; there being numerous instances in which expressions equally loose in other patents have been fairly proved to bind on a water course; secondly, because all grantá are to be construed most favourably for the grantees. The loose and indefinite nature of the course itself is a strong reason why it should bind upon the creek. What course is «an east a little northerly?” Is it east one, two, or twenty degrees, minutes or seconds, northerly? And since the expression itself gives no precise course, it certainly must have been intended to bind on the creek.</p>

Wb.it ot Ebkob, issued on the 7th of October, : 1802, directed “To the Worshipful Justices of the Criminal Court of Baltimore County,” ior the removal oí a i criminal prosecution to the general court, and returnable on the second Tuesday of the said month of October.

It wag an action of assumpsit for work and labour performed, &c. by a servant man of the defendant in error, called Medium Allen, for the intestate, and at his request, &c. The general issue pleaded.

EjectmeNT for a tract of land called Greenland, lying in Prince George’s county.

Ejectment for a tract of land called Peneott’s-Invention, otherwise called Pencost’s Invention, lying in Pmice-George’s county. The defendant took de-fence on the plots made and returned in the cause, for a tract of land called The Discovery, and a tract of land called Gisborough Manor. He also located his possession of the said tracts by actual enclosures made in 1772, and continued to the present time. 1.

” The law was passed for the benefit of the applicants for the mandamus, and the dispute between them and the levy court» was as to the construction of the above act of assembly; that is, whether the claim of the applicants against the-county» to satisfy which the said levy was to be made, was to have the interest which had accrued thereon, and the costs which they had been put to in previous attempts to recover it, calculated to the time'of laying the levy; or whether the…

Debt on a deputy collector’s bond. This cause Was at a prior term referred-in the usual manner to two arbitrators, with authority, if they differed, to call in a third person. The arbitrators did differ, and in pursuance of the terms of the reference chose a third person.

<p>The heir at law of a deceased joint obligor leaving a survivor* is not answerable at law •upon the bond. He is not answerable ibr the debt ot his ancestor* unless he is sued as heir, and unless he had promised to pay the debt. It must also be averred* that real estate sufficient had descended to the heir from the au--cestor</p>

The bill stated that Cole, (the appellee,) on the 12th of February 1771, obtained a common warrant from the land office for 60 acres of land, and paid the caution money on it.

Debt upon a writing obligatory, which the defen-t!ailí “ad assigned to the plaintiff, under the act of 1762> cL 23> and «pon which the plaintiff, without neglect or delay, brought suit against the obligor, who was committed on a surrender by his bail.

<p>In an action of. trespass for jneene profits, the plain» titx recovers da* muges only for the-use and occupation of the land, mid not for trespasses committed during the same period. A recovery there* fore in such action is no bar to an action of* trespass. q. c. f.</p> <p>The moving of. fence rails is a, trespass, for which damages may be recovered m an action of trespass qt c- f. notwith* standing a recovery in an action for profits* unless that removal was necessary for ú.e use and occu* pation of the land</p>

Assumpsit for money had and received, to recover money erroneously paid by the plaintiff to the defendant. The general issue pleaded.

<p>■Where a she* miff’s return on s fieri facias, anil Jiis conveyance oi the land, sold uu ■dev it, ave apparently regular, the title cannot be diverted out of the purchaser except oy proof of fraud or collu'jon between him and the ¡Sheriff. ; \ • ; i ;</p>

EjectmeNT for a tract of land called The Case is Jittered, lying in Baltimore county. Defence on warrant, and plots returned. The plaintiff claimed title to the land in the declaration mentioned under a grant to Walter Tolley, dated the 6th of October 17S2j and the defendant claimed the same land as included in a resurvey on a tract of land called Spanish Oak Bottom, granted to Stephen Onion on the 27th of May 1745.

Ejectmeiít for part of a tract of land called Mx, lying in Frince-George’s county. Defence on warrant, and plots returned. The plaintiff offered in evidence a grant to William Hutchison, dated the 12th of June 1688, for the land called Mx mentioned in the declaration; and that Thomas Berry, of Samuel, was on the 24th of October 1778, and at the time of his death, seized in fci of the part of the said tract for which this suit is brought.

Assumpsit on a promissory note drawn by Stone, Vaughan, & Co. in favour of the defendant, and by him endorsed to the plaintiffs. This note was what is called an accommodation note, and the defendant endorsed merely to enable the drawers to obtain money on it from the bank, and the defendant knew that the drawers meant to obtain the money from the plaintiffs. The following facts appeared in evidence.

This was a criminal prosecution under the act of congress passed the 10th of May 1800, which subjects all persons voluntarily serving on board any vessel of the United Slates, which is employed in transporting slaves from one foreign place to another, to fine and imprisonment.

, Appeal from a decree of the court of chancer/ > dismissing the bill of complaint of the appellants. ; The bill, which was fiied on the 4ih of March ; 1797, states that a certain James Browne of Glasgow? ■ in Scotland, being seised and possessed of a tract of land called “Meagrehalmf* containing 608 acres, lying in ({uecn-Jlnnc's county, of one other tract of land called “Ashley,9> containing 95 acres and one ■ half, adjoining o the first mentioned tract, and of one other…

Debt upon a writing obligatory, dated the 29th of August 1797, conditioned for the payment of £9 current money per acre, for as many acres of land as plaintiffs should make the defendant, his heirs, &c. a good and legal title to in Island Creek Neck, agreeably to a bond of equal date with the said writing obligatory, passed by the plaintiffs to the defendant, &c. The defendant pleaded, 1st. General performance, and 2dly.

<p>Where general performance is pleaded in an action on a replevin bond, or any bond with a collateral condition, the original need not be produced, Such plea being like a plea of payment to a bond for the payment of money, > * ' ‘ , .</p>

MotioN, and rule on the plaintiff to show cause why the writ of venditioni exponas, issued in this case, should not be set aside. \ ft áppeared that a fieri facias issued, returnable to September term 1800, and was returned by the sheriff “laid as per • schedule, and on hand for want of buyers.” The schedule referred to is as follows: “A schedule of the property of Ebcnc&er Perkins, taken with a f. fa. at the suit of David Williamson, and appraised by us, the subscribers, we…

This was an action of assumpsit. The declaration contained nine counts. 1st. Count, on a special agreement, viz. That before and attbetime of the agreement, to wi{¡, on the 25th of August 1794, at Columbia, in the state of South Carolina, to wit, at Baltimore county, a certain Jacob Rumph was seized in fee simple and possessed of 150,000 acres of land, situate in the fork of Edisto, in the said state of S. C. and being so seized and possessed did, for certain good and…

Trespass quare clausum fregit. The lands in dispute were located, and plots, with depositions taken on the survey, were returned.

Appear from the general court. The appellee brought an action of debt against the appellant, upon a judgment, recovered by intestate against the appei- . . , lanvs testator, in the general court. Flea nut net re- ^ cord and replication, habetur tale recordum. The general court, upon inspection of the regard, gave judgment for the appellee; from which judgment this appeal was made.

EjectmENT for a tract of land railed The Resur--aey on Hills, Dales, and the Vineyard, lying in Wash-T> r. * , ' , , , iivgton county. Defence on warrant, ana plots ° were returned.

Appear from a decree of tin* court of chancery. - The bill stated, that Rachel Baynard, the complainant in the court of chancery, \yho afterwards married Wil Ham Todd, (the now appellants.) in September 1796, by her bill set forth, that George Baynard, deceased, on the 24th of October 1787, mortgaged to Pratt, the defendant, part of a tract of land called Relief\ containing 576 acres, Baynard?s Pasture containing 101 acres, part of Roe’s Chance containing 97 acres, and . . ’…

This was a bill filed by tbe creditors of Parkin and M'Ketma against Parkin’s beir, devisee and adminis ' . . trator. and M'Kennars executor.

<p>Motion to quash the return made upon a writ of fieri facias. At September term 1802, the plaintiffs obtained a judgment in this court against the defendant, with an agreement to stay execution thereon until September term 1803. On the'28th of August 1803, the defendant conveyed a parcel of'land to Thomas Goldsborongh, by deed bona fide, and for a valuable consideration. On the 28th of February 1804, the writ of fieri facias in this case issued on the plaintiffs5 judgment against the lands, &c. of the defendant, and was laid in part on the land so conveyed to Goldsborongh, on whose-behalf this motion was made by</p> <p>that although the judgment was a lien on the land, it did not preclude the defendant from transferring it cum onere, and that a scire facias was requisite before a fieri facias could issue.’ That in all cases where the inheritance or freehold is affected, the tenant of the freehold is to be made a party; and that terre-tenants ought by law to be all equally contributory in discharging liens, and one sued alone may plead in abatement that there are others. 4 Bac. M. tit. Scire Facias, (C. 5,) 114, 113. The cases of a fine and common recovery, as cited by Bacoh from 2 Salk. 598, pi. 2, and Garth. Ill, are illustrations of the general rule that a terre-tenant is not to be ousted without a scire facias. Nor are terre-tenants, who are strangers to the recovery of houses in a writ of assise, to be ousted without a scire faciaé. 2 Bac. M. 353. So also as to heirs, executors and administrators, a scire facias must issue, because they may shew cause against the execution. He also cited precedents from 2 Harr. Ent. 749, 763, of writs of scire facias against the defendant in the judgment and the terre-tenants, and against the terre-tenants only, as evidence of the practice in such cases in this state.</p> <p>contended, that a motion was not the proper mode of proceeding — That the defence, if there was any, would come out more properly in an action, of ejectment to obtain possession by the purchaser, of the land purchased at the sale made under the fit ri facias; for there the fraud, if there was any. might more properly he inquired iiito. They relied upon the general rule laid down in 2 Bac. M. tit. Execution (I.) “that lands are bound from the time of the judgment, so that execution may be of these though the party aliens bona fide before execution'sued out.” They inferred from the rule of law as here expressed, that was a previous scire facias necessary to be served upon such alienee; it would have been here mentioned. A strong inference was also to be drajvn, they said, from the application of writs of f enfadas, by practice in this state, to lands as well as to goods and chattels, under the statute of 5 Geo. IL ch. 7, which was riot analogous to any execution in England, except an extent or an ehgit, and there were no eases under either of them where a scire facias was necessary. That by the law of England no scire facias is neressary before a fieri facias can issue against goods and chattels, although such goods and chattels be transferred to a third person, if it be after the delivery of the writ, such delivery operating as a Ken upon the goods and chattels in like mannei» as a judgment does upon lands; so no scire facias is necessary where a fieri facias issues against lands, as it may in this state, such lands being hound from (lie time of the judgment. The inconvenience and impolicy of such a practice, requiring a scire facias in'such a case, was urged. A creditor might, by such means, be for ever defeated, or much delayed by successive alienations after judgment. That it was a genera! rule of law, that execution being the fruit of a judgment, was always to be fa-voured. They further observed, in answer to the eases cited by the opposite counsel from 4 Bac. Mr. tit. Scire Facias, (C. 5.) that they were cases of writs of .error to reverse a fine and a common recovery, an4 iii at the scirefacias there spoken tif, was a sbire facias ad audiendum errores, and not a scire facias to shew cause why execution should not issue; That the former kind of scirefacias, via. a scirefacias ad audiendum cr-rores-, was a formal part of the proceedings on a writ of error, was different from a scirefacias to shew cause* and had therefore no relation to present case. That the general rule laid down in Bacon, together with the cases added in illustration thereof, ■ \tere so to be understood, and they show it to be discretionary with the court, to order the scire facias or not. Here Goldsborough has no equity to offer. Besides, on si reversal of a common recovery and line, a writ of restitution goes to the sheriff, which renders a sciré facias necessary to let in the ferre-tenant to show his defence. But under a sale made under a fieri facias there was no such thing* as the purchaser is left to his action of ejectment, when the defence of the terre-tenant may be made. Fines and recoveries' are only conveyances, and the sciré facias is only ad audiendum errores. They also cited Graff vs. Smith’s adm’rs, 1 Dali. Rep. 481, to shew that no scirefacias was necessary in such cases by the law óf Pennsylvania.</p> <p>Bullitt, in reply, contended, that fraud could as well be inquired into on this motion as in an action of ejectment. But in ejectment Goldsborough could not call o'n the terre-tenants, as be may by pleading to a scirefacias. That if the statute of 5 Geo. II. ch. 7, puts a fieri facias against real and personal property on the same footing, this fieri facias cannot affect the land in question, being issued after it was conveyed(a); but the land is bound by the judgment, and all that the bona fide vendee can require, is an opporfu--!1‘N í;0 show a meritorious defence. That a scirefa-das in fines and recoveries is not merely ad audien-dum errores, but also to show cause why he should not be ousted' by a writ of restitution, and this is the more obvious use of if.</p>

In this case a. fieri facias, which had regularly issued on the 2/th of June 18.03. upon a judgment ren, dered in this court, vvas laid on the defendant’s personal property on the 19th July 1S03.

<p>“Whether or not due diligence ha* been used by (lie indorsee of a promissory note to recover the money from the drawer, is a question of law</p> <p>Where there has not been due ditt* gerice, a subsequent promise by the ' indorsor to pay the note will make him liable.</p>

L This was a motion for a mandamus to restore the ; plaintiff to the possession of a church, &c. grounded ■ upon a notice given by him to the defendants, previous to the sifting of flie court.

Motioit by the plaintiff for a writ oí fieri facias upon a judgment rendered in this coiirt at October term ÍSOI. It appeared that the defendants had appealed from the judgment above mentioned lo the court of appeals, and had filed a bond agreeably to law to stay the issuing- of any execution on the judgment.

Debt upon an appeal bond, for prosecuting an appeal from a judgment of affirmance rendered in this court, to the court of appeals. General performance was pleaded, and the plaintiff replied the recovery of' a judgment in Baltimore county court, on verdict, in an action of assault and battery, which was removed to and affirmed in this court, and also removed to and affirmed in the court of appeals. The general issue was joined.

<p>A ccire facias may be amended where a clerical error has been made, stating; the judgment to have been obtained in 1797 instead of 1787</p>

A motion was made, and a rule obtained at the last term, at the instance of the assignees of the defendant, who had been declared a bankrupt, on the plaintiff, to shew cause at this term why three writs of fieri facias, (two of which were laid,) ought not to be quashed.

Habeas cobpus cum causa to Baltimore county CulU U in moved for a writ of procedendo, stating that in this case there was an attachment on warrant which was laid in the hands of a garnishee, who appeared to the attachment and ° * i* i i • pleaded non assumpsit and nulla bona, and issues were joined. That at the trial court the original defendant appeared and gave special bail; the attachment was dissolved, and the present writ of habeas corpus produced and allowed.

Issues sent by the Chancellor to be tried by a jury under the direction of this court:— 1.

In this case a judgment was entered in this court at May term 1803, for ¿£3000 current money debt, and 536 wT. tobacco'costs, to be released on payment of ¿£1459 current money', with interest from the 1st of December 1800, and costs, with a stay of execution until the 1st of August 1804.

<p>A location made on the plots by one of the parties in an action of ejectment, and not eounterlocated by the other, is presumed to he admitted, and no evidence can he received against it</p> <p>A patent issued by the judge of the land office under a presumption that only certain lands are included in it, is good for so much of the said lands as are properly included</p> <p>The locations made by one of the parties in an action of ejectment, on a plot in another cause in which the othor party was not in*’ terested, may be given in evidence against the party making them</p> <p>Information, as to the boundary of a tract of land, derived from a person who was interested at the time, is not competent evidence in an action of e-jectment for the party elaimmgun* der the person so interested</p> <p>A patent issued by the judge of the land office \m éter a presumption Chat only certain lands arc included in it, is good for so much of the said land" as are properly included</p> <p>The locations nade by one of’ he parties in an iction of eject*» nent, on a plot in mother cause in .vhich the other ¡>avty were not in* ierested; may be jiven in evidence igainst he party nakmg them</p> <p>A plot and pver*» eeedings m an ancient action of ejeetmtnt between parties under whom the les-, sor of the plaintiif in another action of ejectment-claims, admitted in evidence for the defendant in such other action, to prove his location of the land, on the plots.</p> <p>Information, os fo the boundary of a'tract of land, derived from, a person who was interested at the time, is not competent evidence in an action of ejectment for the party claiming under the person so interested</p>

Ejectmestt for a tract of land called Rupalta, lying in Harford county. The declaration contained a joint demise by the whole of the lessors for the whole tract, and also separate demises by each of the lessors for the whole tract. The defendant took defence on warrant, and plots were returned, by ■which it appeared that the defendant took defence for all the land located by the plaintiff as his pretensions1 1.

Ejectment on a joint demise, and on separate demises, for three undivided fourth parts (the whole to be .divided into four equal parts,) of a tract or parcel of plantable land called Trent Neck, lying in Saint Mary’s county, containing 2354 acres. The defendants took general defence, and issue was joined. 1.

Arpear from a decree of the court of chancery, passed in favour of the complainant in that court.

<p>Ejectment for a tract of land called Cheney’s Hazard, lying in Jtnne-Jlrnndel county. The defendant took defence on warrant, and plots were returned. General issue pleaded, and issue joined.</p> <p>1. The plaintiff, by his counsel, read in evidence to the jury a patent for the tract of land called Cheney’s Hazard, being the land in the declaration mentioned, granted to Richard Cheney on the 30th of May 1663, for 100 acres more or less. He then offered evidence to the jury to prove that the lessor of the plaintiff was the heir at law of the patentee.</p> <p>The defendant then offered in evidence to the jury, a copy of the Rent Moll legally authenticated, viz «100 acres, Cheney’s Hazard, surveyed 24 Dec. 1661, for'Richard Cheney, on the south side of South River. Toss. John Derbin.”</p> <p> Mienations. </p> <p>«100. Patrick Symson from Samuel Burgess, and uxor, 17th February, 1T19.</p> <p>100. Richard Hill from Patrick Symson and Eleanor, uxor, 3rd November 1724.</p> <p>10O. David Maccleftsh, from Diehard Mill, 4th April 1726</p> <p>He also offered in evidence the will of John Durbin, dated the 9th of October 1715, whereby he devised the said land nailed Cheney’s Hazard, to his wife Elizabeth Durbin, «to be entailed tipon the said Elizabeth, and her heirs, neither to be sold nor mortgaged if the said Elizabeth has heirs by her own body, and the said heirs live to the years of twenty-one, to enjoy the said latid, otherwise the son of Dorothy Cal-lingsworth to enjoy the said land' for him and bis heirs.” He also offered in evidence a deed from Samuel Burgess, and Elizabeth his wife, to Patrick Sympson, dated the 17th of February 1719, for the said tract of land called Cheney’s Hazard, in which will the devise from John Durbin to the said Elizabeth, who had intermarried with Burgess, is recited. The acknowledgment of said deed by Elizabeth, and her examination by a justice of the provincial court who took the same, is that the said «Elizabeth, the wife of the said Samuel, who being by me secretly examined out of the hearing of her said husband, declared that she acknowledged within land and premises to be the right of the within named Patrick Sympson, his heirs and assigns for ever, free from any threats or fears of her said husband’s displeasure” (a).</p> <p>The defendant also read in evidence a deed from Patrick Sympson, and Eleanor his wife, to Diehard IMU, dated the 2Sd of November 1724, for the said land. He then produced in court the original land record book of Anne-Arundel county, under tiie custody of the clerk of Anne-Arundel county court, and by him brought into court, in which book was. the record of a deed purporting to be a deed from Richard Hi'l to David Macklefish, dated the 4th of April 1726, and offered to read from the said record hook the enrolment and copy of the said deed, in the words following, to wit: “This Indenture, made this fourth day of April Anno Domini one thousand seven hundred and twenty-six, between Richard Mill, of Anne-Arundel in the province of Maryland, practitioner in physic, of the one part, and David MacMeJish, of the same county and province, planter, of the other part, witnesseth, that the said Richard Hill, for and in consideration of two tracts of land, situate and lying in Anne-Arundel county and province aforesaid, one of which tract containing one hundred acres, (being part of a tract of four hundred and fifty acres,) formerly granted unto Thomas Besson of this county, called Bessendon, and another tract of land, formerly laid out for Thomas Sutton, called Sutton’s Addition, adjoining to the former, containing and laid out for twenty acres, both tracts containing one hundred and twenty acres more or less, as in the original certificates doth more at largo appear — Hath given, granted, bargained, set over, sold and confirmed, and by these presents he, the said Richard, doth for himself, his heirs, executors, administrators and assigns, give, grant, bargain set over, sell and confirm, unto tbe said David Mackleñsh, his heirs, executors, administrators and assigns, forever, one tract of land laid out for Richard Cheney the twenty-fourth day of December 1661, called Cheney’s Hazard, lying in the county aforesaid, being about a mile west from the said Cheney’s plantation, where he then lived, beginning,” &c. “containing and laid out for one hundred acres of land more or less, now in the tenure and occupation of the said David Macklefish,” &c. “to have and to hold the land and premises aforesaid, unto him the said David, his heirs, executors, administrators and assigns, for ever, to the only proper use and behoof of him the said David, his heirs, executors, administrators or assigns, and to no other use, intent, or purpose whatsoever. And the said Richard doth hereby covenant, promise and agree, to and with the said David, his heirs, executors, administrators and assigns, the land and premises aforesaid, according to the metes and bounds aforesaid, for ever hereafter against all manner of persons elaims whatsoever, to warrant and defend. In testimony,” &o. Signed by the said Richard Hill, and by him acknowledged on the 4th of April 1?'2G, before two *-5 4 orille lordship’s justices of Anne Arundel county court.</p> <p>objected to this deed being read as a deed of bargain and sale, the consideration expressed therein not being money or blood, but land, which is not sufficient to constitute it a deed of bargain and sale. He said it might be read as a deed of feoffment if the original was produced and proved.-</p> <p>contended, that land is a good consideration,- that foreign money or bank notes would be good, and that the deed may be read as a bargain and sale. That it may be read as a feoffment, without proof of its execution, as the original record book wherein the deed is recorded is produced in court. He cited Gitlings vs. Hall, (ante.)</p> <p>Marlin, (Attorney-General.) The deed may be a deed of exchange, and not necessary to be recorded. It cannot be read as a bargain and sale. Land has never been considered as a sufficient consideration. Tobacco notes which pass current, and bank notes, are good considerations. To shew that it could not operate as a deed of bargain and sale for the want of a proper consideration, he cited 1 Bac. M. 463,469. Gilb. on Uses, 50, 5Í, 82, 112, 296. 2 Blk. Com. 338.</p> <p>Mi a off and Johnson, contra. The deed, upon the face, of it, purports to have been made for a valuable, consideration. It cannot operate as an exchange, for it has not the term exchange in it. Through the medium of the court of chancery this deed would be carried into effect. The equitable estate being in the bar-gainee, and the legal estate in the bargainor, a use would vest in the bargainee. The statute executes and transfers the use into the possession, and makes it a legal estate. If it is not a deed of bargain and sale, what is it? It is not a feoffment — it is not an exchange. There has been no decision where a bargain and sale has been set aside, because there was no jnoney oqnsUleration. Those cases cited turned ori the generality of expression. This can operate in no other way than as a bargain and sale, and can there be a deed regularly executed without operation? Before the statute of uses, 27 Hen. Vlll. this deed would Ijave raised a use effectual in .equity. It will therefore now raise a use, and the statute will transfer the possession. The s<\iue words which would raise a use at common law', will make a bargain and sale, which is a real covenant, on valuable consideration. 2 Inst. 672. in 2 Blh, Com. 838, it is said'there must be a pecuniary consideration.?? What is pecuniary consideration? It is not merely money — it is the value of money. A valuable consideration, means a recompense given. 8/iej). Touch. 218. There must be a monied or other valuable consideration. 8hep. Touch, 220. 1 Bac. M. 469, refers to | Co. Rep. 176, and and Coke says, no use can be raised upon a general consideration. It must be ¿‘money, or other good com-sideration paid or gi ven?’ — And it must not be ex pressed generally “valuable consideration.” It must mention particularly what the consideration is. In 22 "Finer, 202, the same principles are laid down. If a man sells lands for divers good considerations, it is not good unless there be an averment of what the consideration is. Tiiey also cited for the same purpose* Jeuk. 247 2 Stra. 1228. There has been no determination shewn where a deed is not good mentioning land as the consideration, or that a different consideration than money was void. The case in Coke says it must be money, or some other valuable consideration. And is not land a valuable consideration?</p> <p>Marlin, (Attorney General,} and Kilty, in reply. This deed is not necessarily a bargain and sale, because it can operate no other way. It may operate as a contract which a court of chancery would enforce. There are a number of contracts which a court of equity would carry into effect, on which the statute would not operate. In 2 Inst. 672, it is not said what other valuable consideration is meant. Consideration o^blood may be intended. Nor does 8hep. Touch, state what other consideration'is meant It does not say the deed shall operate as a bargain and sale, if there is other consideration than money or blood. It may-no doubt operate as a covenant to stand seised. Bacon ¿refers to ali these- authorities, and he says, it must be a money consideration. In 22 Finer 202, it is said, that if the consideration is not expressed, “no use shall arise.”, The land given in exchange is nota valuable consideration, since no title passed in that land to the grantor in this deed, nor is this deed evidence that any such title has been made. The heirs of the bargain- or cannot be divested witiiout proper and apt words.</p> <p>Chase, Cb. J. It seems to bo taken for granted by the counsel, that, unless the deed can operate as a bargain and sale, it cannot operate at all. But the court think differently, upon inspecting the deed. It may operate as a feoffment, (there being words “give and grant.”) if livery of seisin can be proved, and there may be circumstances from which livery may be presumed.</p> <p>It cannot be a deed of bargain and sale without money consideration, or unless there are general words of consideration under which a pecuniary consideration may be averred. If the consideration is blood, marriage, or natural love and affection, it will operate as a covenant to stand seised, as in 2 Wilson 22, 23. If “divers good causes and considerations” are used, without mentioning any specific considera-iion, the party may aver what the consideration was. If money be averred as the consideration, it will make it a deed of bargain and sale.</p> <p>The court will lean towards giving validity to a deed. If it will not have operation in one way, it may operate in some other way.</p> <p>These positions wrere laid down in this court in the case of Paca and Forwood, fZHarr. and M‘Een. 175.J This, therefore, not being a bargain and sale, or deed directed by law to be enrolled, neither the record nor a copy is evidence.</p> <p>The court are therefore of opinion, that the said enrolment is no evidence, as tiie said deed could not operate as a deed of bargain and sale, there hot being any money consideration expressed therein. The defendant excepte'd.</p> <p>2. The defendant then produced in court the original record bools brought into court by the register of wills for Anne-Arundel county, in which book was recorded a paper, purporting to be the will of David ¿Macklefish, dated the 6th of Juue 1737, whereby he devised the said land called Cheney’s Hazard, to his wife Martha, for life, with remainder in fee to his soij John, which said will appeared to have been signed, &c. in the presence of two witnesses. And he offered to read, from the said book, the record of said willj to prove that the said David Macklefish claimed the land in^question, and was in possession claiming title to it.</p> <p>Bui the plaintiff’s counsel objected to the reading of the record of the said will from the book aforesaid,</p> <p>Chase, Ch. J. The court are of opinion that the record is not legal and admissible evidence to prove that David Macklefish rl inied the land in question, and was in possession thereof, claiming title to the same, the said will not being attested by three witnesses. The defendant excepted,</p> <p>3. The plpintiff, further to prove the issue on his part, after having read in evidence to the jury the grant for the tract of land called Cheney’s Hazard, in the declaration mentioned, issued to Richard Cheney on the 30th of May 1663, as before stated, gave evidence to tiie jury that said patentee died sometime ,in or about the year 1704, leaving Richard Cheney, his eldest son and heir at law, who' was born on the 8th of March 1682-3, and who on the IQth of December 1707, married a certain Rachel Nicholson; that some time in or about the year 1709, they had a daughter of the name of Elizabeth, who in the year 1725 ? aiul before sbe was 21 years of age, marries! a certain Greenbury Cheney, by whom she had the said Zuchariah, the lessor of the plaintiff, who moved from the state of Maryland upwards of forty-two years past, to Juniata in the state of Pennsylvania, and where he hath since resided. He further offered evidence, that the said Richard, the son of the paten-tee, was in his life-time in possession of said land, and Jived on it, and that he died in or about the year 1713. He further gave evidence, that Elizabeth, the mother of the lessor of the plaintiff, died about the year 1751, in the life-time of her husband Greenbury and that he died about fourteen years past. He s lsp proved the ¡¡ease, entry and ouster, as laid in the declaration.</p> <p>Tiie defendant, in support of the issue on his pari, produced in evidence the entries on the original rent rolls, which are before inserted; and read in evidence the last will and testament of the said John Durbin, or Durden, mentioned in the said rent; roll, dated the '9tli of October 1715, whereby he devised the said land to bis wife Elizabeth, in the manner before mentioned. -He then produced .evidence to prove,, that the said Elizabeth Durbin, or Burden, after the death of her husband, on the 11th of April 1716, intermarried with a certain Samuel Burgess, and that on the 17th of February 1719, the said Samuel Burgess and Eli-mabeth his wife, executed a deed for the said land to one Patrick Sympson; and that Sympson and wife, on the 23d of November 1724, executed a deed for the same to one Richard Hill. He then offered to read in evidence to the jury, from the original land record hook of Anne-Arundcl county, a deed from the said Richard Hill, to one David Macklefish, for the said land, dated the 4th of April 1726, which the. court de» tcrmined could not be read in evidence. He then offered in evidence to the jury the last will and testament of the said David Macklefish, bearing date the 6fh of June 1737, devising the said land to his wife Martha, for life, with remainder in fee to his son John, which the court also rejected. He then offered proof that the said David Macklefish had several children, an<1 that Richard Macklejish was his grandson, and heir at, law, to whom the right to the said land descended; and that the said Richard Macklefish being seised of the said land as the law requires, on the 3d of March 1763, conveyed the same to Joseph Howard, by deed dated on that day. He then offered evidence to the jury, that one Richard Burgess was the eldest son and heir of the aforesaid Samuel Burgess, and Elizabeth his wife, and that the said Richard Burgess, on the 23d of April 1774, executed a deed for the said land to the said Joseph Howard. He then offered evidence to the jury to prove, that the widow of the said David Macklefish intermarried with one Ephraim Howard. And lie offered in evidence the last will and testament of the said Joseph Howard, hearing date the 10th of December 1777, whereby he devised the said land to Benjamin Howard, after the death of his widow; and that after the death of the testator the de-visees entered on the said land called Cheney’s Hazard.; that the widow of the said Joseph Howard is dead, and that the said Benjamin Howard is also dead; that after the death of the said Benjamin. Howard, a bill was filed in the court of chancery for the sale of his real estate for the payment of his debts, and that in the year 1794, a decree was made by the chancellor for the sale thereof; under which the land in question was sold to and purchased by Nicholas Harwood. He also offered evidence that John Watkins, the defendant in this action, was at the time of bringing the suit, the tenant of the said Nicholas Harwood. That the said David Macklefish in his life-time was in the actual possession of the land; that after his death it was possessed by the said Ephraim Howard, and that the said Ephraim, Howard is charged with the same on the Anne-Arundel county debt books from the year 1753 to 1760; that John Mackle-fish, the devisee named in the will of the said David, is charged with the same on the said debt books from the year 1760 to 1766; and that Joseph Howard is also charged from the year 1766 to 1771; and that since that time the said Joseph Howard, Benjamin Howard, and those claiming under them, have possessed the same, and paid the taxes and dues on it. That no person by the name of Cheney, from the year 1710 to the present time, had been in possession of the said land; but that the same-had been from that time held and possessed by the said John Durbin, and wife, or those claiming under them. That there are now no debt books for Anne-Arundel county to be found further back than 1753; and that the land records for Anne-Arundel county were burned in or about the year 1705.</p> <p>Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if they are of opinion from the evidence aforesaid, that the facts aforesaid stated by the defendant are true, then, although they are also of opinion that the several facts stated by the plaintiff are also true, that I hey may and ought to presume that the said Richard Cheney, the patentee, or Richard Cheney his son and heir at law, in due, form of law’conveyed the same land in the declaration mentioned to the said John Durbin or Durden.</p>

<p>The decisions of the chancellor as judge of the land office, are not con* elusive, but may l>e reviewed in rhe court of chancery by original bill*</p>

‘ Appear from a decree of the court of chancery. The bill states, that the present appellant, being seis-ed in fee of a tract of land called Peace and Plenty, containing 289 acres, did on the 28th of May 1781, soil the same to the complainant, fCrow,) for 40,000wt. of merchantable crop tobacco, and on that day executed a bond of conveyance, and the complainant passed his bond to the defendant for the pur-díase money.

Attachment on a judgment rendered ir\this court. It appears bv the pleadings in this caso, that the Mate of Maryland commenced suits in this court o.n two bonds against Blake, (being bonds by him executed for the performance of the duties of sheriff) the first on the 19th of Juiy 1797, and the second on the 2d of July 1798.

This was a case sent from the court of chancery for the opinion of this court, viz. In Chancery, June 15, 1805. It is admitted by the parties that Joseph JIaccubbin died intestate some time in the year 1800, seised of sundry tracts of lands situate in Anne-Arunde! county.

Mansamus to restore, or cause to be restored, the prosecutor into the place and function of minister of “The Saint John's German Catholic Church of Balti- » more,” in the city of Baltimore, and to the use of the Pulpit an(i 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…

Motion by the plaintiff for a rule on the justices of the levy court of Anne Arundel county, to shew cause why a writ of mandamus should not issue to - them, and each and every of them, as justices as aforesaid» commanding them to allow and levy upon the assessable property of the said county, and cause to be collected and paid to the plaintiff, a stun of money due to him as poundage and oilier fees, in executing, as sheriff of the said county, sundry writs of caphis ad…

Assumtsjt for goods, 'wares and merchandize, sold and delivered, &c. and for sundry matters properly ehargeable in acr.ouut. The defenda..t pleaded non assumpsit and plene ad-ministravit. There was the general replication to the last plea, and issues were joined. The plaintiff brought this action as surviving partner of Dyson, Rogers & Co. (foreign merchants,) against the defendant as executrix of Stephen West, surviving partner of John Hobson.

Ejectment. The defendant took general defence, and issue was joined, 1. Tho plaintiff offered in evidence at the trial, two Proprietary leases executed by the agents of the Proprietary to tViilmm Cole.

Trespass, to recover the mesne profits of a tract of land called Jarrett’s Disappointment, which is not included in a tract of land called Contestable Manor Mo. f, recovered in an ejectment ip this court, brought by the lessee of the present plaintiff, against the present defendant, on the 25th of January 1798.

Ejectment for a tract of land called tyno, lying in Anne Arundel county. Defence or, warrant, and plots returned. 1. Held: possessed and occupied, the said land called A'yno., by themselves'.- nd their agents, cultivating part, and claiming the whole as their estafe in fee simple, and that there is no recollection or tradition of the said land, or any part of it, having ever been held or claimed as such by any person or persons other than the priests and…

Assumpsit. The declaration and pleadings in this case are stated, ante 453. The cause again came on for trial at the last term, (October 1804,) when contended that the plaintiff’s cause of action, if he had one, arose on a demand by the plaintiff on tiie defendant, made in the state of South Carolina., and to that demand the defendant’s 4th, 5th, 8th,'9th, 12th, 13th, 16th, lí'th and 19th picas, are a bar.

The bill, filed on the 28th of March 1799, charges that Mary JJerivener, mother of William Scrivener, the complainant's intestate, obtained letters of administration on the estate of John Scrivener, the father of the said William, and paid the said William sundry specific articles of stock, &e. and two negro women, to wit, Grace and Hagar, which Magar afterwards had issue a daughter called Meriah, both now alive.

<p>Querc* Whether * mulatto, horn free of a manumitted negro mother, 5s a competent witness against a free born white Christian, in a prosecution for felony?</p>

Ejectment for a tract of land called The Wolf Holes, and another tract called Cole’s Jldventure, lying in Saint-Mary’s county.

<p>Action of debt brought in Calvert county court, and removed to this court by a writ of habeas corpus cum " _ _ caitsa. At May term 1804 the defendant pleaded * payment, to which there was the general replication, and issue was joined.</p> <p>at this term stated, that it was an action of debt to recover the amount of a bond stated to be improperly gotten possession of by the. defendant- That the clerk, as a matter of course, under the general directions of the bar, in complying with the rule laid on the defendant to plead, as no other plea was put in, entered the general issue plea of payment.</p> <p>He moved the court to give him permission to withdraw,the plea of payment, for the purpose of pleading nil debet.</p> <p>objected to the leave being granted. He stated that it was not usual to grant such leave, unless for the purpose of giving the defendant liberty of pleading some plea going to the Merits — and the principle laid down is, that the court will not suffer 'nil debet to be pleaded unless it goes to the merits. He cited Bull. JV*. P. 170. 2 Id. Ray. 1500. If this case is considered with reference to the cases cited, the plea of nil debet could not be pleaded. If the defendant'lias paid the bond, the plea which he has pleaded is the proper one. If he did not execute the bond, he can plead non est factum. 3 Burr. 2586.</p> <p>Johnson, on the same side. . If the defendant never did owe the money, he can ple.ad non est factum, for if he never owed the money he could not have executed the bond. Tf he was permitted to plead nil debet, the proof would lie on the plaintiff to establish the execution of the bond which the defendant has obtained possession of, and is not in the power of the plaintiff. S T. II. Í 51. 1 Foiib. 14, fnote.J</p> <p>Key, in reply. If the bond is lost, one of three actions may be sustained — either trover or detinue, where the bond, date and sum, must be proved — or debt, where there must he also proof of the date and sum* The declaration in this case is for a bond of a blank date, month and year. There may be several bonds. The defendant could not plead non est factum. The specialty is not the foundation of the action, it is matter of inducement^ and if the bond is the foundation, it ought to be produced — being the inducement it must be set out particularly. An action cannot be sustained unless it is proved the bond is lost, and nil debet is the proper plea. Under the plea of payment nothing can be given in evidence but payment. That plea admits the execution of the bond, which would not be a trial of the merits.</p> <p>Johnson. In 3 T. R. 151, the date of the release is not set out in the fourth plea — it is stated to be lost. There was a demurrer to the plea, which the court overruled. The bond is there stated to be lost by time and accident. In the case before the court the bond is stated to betaken by fraud. The plea of non est factum would be a plea to the merits.</p> <p>Key. There, war, a special demurrer in the casé iri 3 T. R. 151, ami the point was, whether at any time there could be a recovery without profert. But m the present case there must be proof of the execution of the bond of niLch a date, and that the defendant fraudulently got possession of it.</p>

<p>Two writs of fieri facias returnable to this term.</p> <p>Submitted to the chief judge, on a case stated, for his opinion.</p>