Volume 1 — Maryland Reports

Upon appeal from St. Mary’s eounty court by tbe defendants therein. This action was brought upon the bond of Alexander Mil-burn, who bad been appointed tbe collector of taxes in St. Mary’s county; tbe other appellees were his securities. The bond bears date 26th April 1845, and is conditioned for the faithful performance of bis duty as collector of tbe State taxes for the year 1845. Oyer being given, tbe defendants in the court below pleaded: — 1st. General performance. 2nd.

<p>UPON the difference between Capt. William Stone and William Boreman, touching the said Boreman!s land at Nanjemoy, it appearing to this Court that the said Bore-man did not legally pursue his warrant for four hundred acres of land within the time of the said warrant prescribed — It is ordered by this Court that a patent immediately be passed to Capt. William Stone of the land by him demanded, and in regard that the said Boremarfs right to so much land doth yet remain unto him ; and the surveyor did, in his own wrong, survey and receive pay for survey of that land at Nanjemoy. It is ordered also by the Court that the said Boreman shall have 400 acres in some other convenient place, and the surveyor to lay it out without satisfaction or pay from the said Boreman.</p> <p>PROVINCIAL COURT, FEBRUARY, 1660.</p> <p>“ WHEREAS Edward Lloyd, maketh it appear to this “ Court per draughts and the plots of land surveyed for him “ in Wye River, that his long lines running S. E. he also “ having purchased two patents, next adjoining upon him ; “ thelong lines of which patents, running E. per which occa- “ sion he wants much of his due proportion of land. Upon u his motion and the consideration thereof, the Court hath “ thought fit and ordered that the long lines of the land “ purchased of William Granger shall run S. E. provided “ it prejudice no survey made before these presents.”</p>

<p>UPON the motion of Thomas Gerard, Esq. to the Governor and Council shewing how that he formerly commenced suit against Mr. Richard Willan and Mr. James Lindsey, concerning his title to Snow Hill, and at the Court holden at St. Mary’s, 2d of March, 1638, Philip Calvert, Esq. concerned in that cause, appealed to his Lordship in England, and his Lordship’s determination of the cause between him and the aforesaid parties being sent in from his said Lordship, he humbly craveth the judgment of the Governor and Council, to declare whether that determination of the cause as aforesaid, shall be entered upon record, as a final determination of the cause, yea, or no ?</p> <p>And upon some quere, whether an appeal was admitted or granted for the determination of the whole business, or only for his Lordship to declare where his Lordship’s Manor of Snow Hill is. The Clerk’s foul notes being called for and read, where these words following are not inserted in that former order, nor sent to his Lordship in England, viz.</p> <p>“ The plaintiff makes appear to the Court, that his wife is the next heir that appeareth in this province, being sis-u ter to him that took up the land now in dispute and the ee plaintiff is admitted by the Board to be heir at law in right “ of his wife till a brother (there being two yet supposed “ to be living) makes claim of the same.”</p> <p>And being'put to vote, the judgment of the Counselis :</p> <p>Mr. Baker Brooke. Not; because the whole business was not sent home to his Lordship.</p> <p>Mr. Robert Clearke. Not; for the same reason.</p> <p>Col. Nathaniel Utye. Not ; the business being not fully sent home, nor appeal granted for to have the whole business determined concerning the land j but only where his Lordship’s Manor of Snow Hill is.</p> <p>Col. John Price. No final determination.</p> <p>Dr. Luke Barber. The same.</p> <p>Governor. No final determination.</p> <p>But ordered to be entered upon record, though not as a final determination. And further ordered, that summons issue to Mr. Richard Willan and Mr. James Lindsey, ad audiendum judicias next Provincial Court.</p>

ORDERED, That a writ issue to the sheriff of Calvert County, to impanel a Jury to .inquire upon the place, whether the land here claimed by the plaintiff against the defendant be included within the bounds of the patent granted to the plaintiff, dated 24th January, 1661, and that they return their verdict to the next Provincial Court.

<p>EJECTMENT for a tract of land called Town Neck, lying in St. Mary’s County. The defendant took defence for a tract called Ascham’s land. On the plots filed in the cause it appears that the plaintiff located the defendant’s tract, which was the elder tract, as binding on the 'south side of a creek, and located his pretensions as binding on. the north side of the same creek, which was located so as to separate the two tracts one from the other. But the defendant located the tract he took defence for in such a manner that, instead of being bounded by the creek, the lines run across the creek, and included the greater part of the plaintiff’s pretensions. The verdict was for the defendant.</p> <p>The followiiig reasons in arrest of judgment were 'filed by the plaintiff.</p> <p>First. The second line of the defendant’s land is expressed in the patent to run west up the creek ; whereas the plots returned make it appear that the course west does not run up but across the creek, and thereby runs into the plaintiff’s land, which is the cause of the difference, and notwithstanding the act of Assembly(a) and common reason direct, that the greater certainty is always to be preferred to the less, and that the natural course of the creek is more certain than the artificial course of the compass ; besides the several testimonies that the taker up and the son of Ascham always intended and understood their land to be bounded by the creek, and not by the artificial line ; yet the Jury rejecting law, reason, and the evidence, found for the defendant; that is, that the natural bound should be rejected, and the artificial adopted, so that the defendant is permitted by the verdict to run over the creek and take the plaintiff’s land, which is error.</p> <p>Second. It was the title of Town Neck land which was in question, and although it plainly appeai-ecl that, by running across the creek a great part of the plaintiff’s land was left out of Ascham’s land, yet the Jury found for the defendant, which implies that the plaintiff has no right to any part of Town Neck land, and is most gross error. For which reasons the plaintiff prays the verdict may be set aside.</p>

EJECTMENT for a tract of land, called Sectar lying in Dorchester County.

Mary’s county court. In this case the action was instituted in St. Mary’s county court, upon the bond of James E. Crane, for the faithful performance of his duty as collector of the State and county tax, in the second collection district of St. Mary’s county.

UPON motion made by Thomas Bordley, that whereas he being discharged by the Secretary of this Province, from being clerk of Anne Arundel County Court, prayed this Court to be restored to the said office.

EJECTMENT for a tract of land in Kent County, called Utrick. It appears by the special verdict found by the Jury, that the plaintiff in this cause claimed title to the land in question, under the will of William Ladds, dated the 20th day of August, 1679, signed, sealed, and published, in the presence of two witnesses only, and proved by them on the 30th of August, 1680. The question for the Court was, whether the will was sufficiently executed to pass the land.

This suit was tried July term 1850, and was instituted ,14th-August 1840. It was an action of ejectment* brought in’Chafles county court, to recover tracts of land- called Bettys Delight, St. Nicholas Hills and Chandlers Hills, situate in the' said county. Defence was taken upon warrant and a survey ordered, and a commission to taire testimony. Verdict was -obtained by the defendant.

<p>THIS was an action of debt on a bond dated the 20th of October, 1711. Conditioned “ that whereas the above 44 bound Thomas Gassaway, high sheriff of Anne Arundel “ County, hath deputed and appointed the above named “ John Gresham his under sheriff of and within the Coun- “ ty aforesaid, which the said J. Gresham hath taken upon “ him the burthen and the executing of the said office, and 44 hath well and sufficiently secured'the said Thomas Gas-44 saxvay from all and all manner of damages which may 41 any wise accrue to the said Thomas Gassaway by the “ said J. Gresham's misfeasance or negligence therein. '<■ Now if so be the said T. G. shall at all and any time or 44 times after upon the reasonable request of the said John 44 Gresham assign and set over unto the said John Gre44 sham, his executors, &c. by proper instruments under the 44 hand of the said Thomas Gassaway, all such public and 44 County allowances which are usually allowed to the 44 sheriff of the said County for collecting and paying the 44 public and County levies, and all other fees, profits, and 44 rewards belonging, or in any wise appertaining, to the 44 sheriffs of the said County, and all prison fees and ac-44 counts, and balances of accounts, that shall, and may, at 44 any time appear to be due in respect of his said office.” The defendant pleaded special performance 44 that he the 44 said Thomas Gassaway from the time of the making of 44 the writing obligatory aforesaid, at all times hitherto 44 upon the reasonable request of the said Gresham, the 44 said Gassaway hath assigned and set over unto the said 44 Gresham, by proper instruments, under the hand of him 44 the said Gassaway, all such public and County allowan44 ees,” &c.</p> <p>Replication- — non-performance—-protesting that the defendant after the making of the writing obligatory, to wit t from the 20th of October, 1711, until the 29th of October, 1714, continued sheriff of Anne Arundel County. That after the making, &c. and during the continuance of the defendant in the said office, to wit, on the 12th of March, 1712, at Anne Arundel County aforesaid, a certain R. P. at a County Court then and there held, was by the Justices of the same County Court committed to the custody of the said defendant, then sheriff of the said County, and by him, the said defendant, by virtue of his office, in his custody then and there received ; where the said R. P. remained for the space of seven hundred and fifty days ; and that the fees for the commitment and imprisonment of him the said P'= P. which became due to the said defendant by virtue of his said office, amounted to 5,060 wt. of tobacco, which the said defendant from the said i?. P. had and received; and to his the said defendant’s own use? did convert and dispose to wit, at Anne Arundel County aforesaid ,• and the said plaintiff further saith, that after the making &c. and during the continuance of the said defendant in the said office of sheriff of the County aforesaid, to wit, the 8th day of June, 1714, at Anne Arundel County aforesaid, at a County Court, then and there held? a certain J, S. of the same County had a capias returned cepi against him, at the suit of C. C. for 15/. Is. Si/, sterling, and costs 430 wt. of tobacco. Upon which return the sheriff for the arrest and imprisonment during die time the said J. S. was in custody, and until the said C. C. was paid his debt and posts aforesaid, which was 120 days, amounting to the sum of 2,600 wt. of tobacco, from the said J. S. the said defendant had and received and to his own use did convert and dispose, to wit, at Anne Arundel County aforesaid. That the said defendant after, &c. to wit, on the 10th of October, 1714, at Anne Arundel County aforesaid, had and received of and from a certain A. J. the quantity of 5,735 wt. of tobacco, being the balance that appeared to become due from the said A. J, to the said defendant in respect of his said office during his continuance therein to wit, the 29th of October, 1714, at Anne Arundel County aforesaid, and the same 5,735 wt. of tobacco to his own use did there convert and dispose ; as also several other sums and quantities of tobacco, which grew due by virtue of the office of sheriff as aforesaid, amounting to 8,766 wt. of tobacco, which together with the tobacco aforesaid amounts to the quantity of, &c. as by a particular list thereof here underwritten may plainly appear, he the said defendant did to his own use convert and dispose of, to wit, the said 29th of October, 1714 ; and this the said plaintiff is ready to verify, &c. &c. Then follows the list.</p> <p>To this replication the defendant demurred specially and assigned for cause, that the replication is no answer to the defendant’s plea, nor assigns any breach though performanee be pleaded, nor shews how the 8,766 wt. of tobacco, in the replication mentioned became due, or that the said defendant received the said tobacco, or that he was sheriff at the time of such conversion Also that the whole replication is insufficient "in law and repugnant thereto. Joinder, &c. i</p> <p>Two points arise in this case. 1st. Whether the matters alleged be breaches or not. 2d. If they are, whether they are well assigned.</p> <p>1st. That the matters mentioned are breaches. This defendant receives the tobacco and assigns the debts. The -assignment was to enable the plaintiff to receive the tobacco, and the receipt of it, by the defendant, rendered that impossible. This is a direct breach. Cro. Eliz. 7. pl. 3. The case of Brown v. Randall, to the same purpose in Mod. 709. pl. 989. 18 E. IV. 20. pl. 29. Covenant to deliver up a recognizance on payment of a sum of money by a particular day. If execution is sued on' the record before the day it is a breach. 1 Sid. 48. Raymond, 25. 1 Keb. 103. 118. Where one disables himself it is a breach ; and if one disables himself from performing a condition, though he afterwards and before he is obliged to perform the condition, becomes capable, yet it is a breach: Co. Litt. 221 b. s. 357. Also, were cited 1 Roll. Ab. 448. pl. 1, 2, 3. 2 Dan. 50. 5 Co. 21. Poph. 110. Mod. 452. pl. 619. Cro. Eliz. 450 pl. 17. 479. pl. 10. Hutton, 48. Winch. Rep. 29, 30. The case here was that a stranger entered into a bond, with condition to levy a fine. The defendant pleaded that the plaintiff did not purchase out a writ of covenant, (which was an act to be done by the plaintiff.) The plaintiff replied that the stranger before the obligation made, had enfeoffed another in fee. This was held to be a good breach and judgment was for the plaintiff.</p> <p>Where covenant was that one should have seven parts of his grains for a certain number of years ; the breach assigned was that the defendant put hops in the Srains? and it was adjudged good. Raym. 464. 2 Jo. 191, 192. The intent of a condition or covenant is always to be regarded, as where there was a condition to pay 50/. without saying of what — it shall be intended to be money. 1 Sid. 151. Putting it in the power of another to make a breach is a breach. 1 Roll. Ab. 428. pi. 42. 429. pi. 2, 3. Where the condition was to enfeoíf J. S. and the party enfeoífed J. S. and others, held to be a breach. Assize, 21. pi. 29. Covenant to license one to cut and carry away 1,200 oaks, license given and a disturbance afterwards — It was held to be a breach. 18 Ed. IV. pi. 29. Hard. 463, 464. seems to have been of opinion that where a feme sole is obliged to make over lands, and marries before she performs the condition of her obligation, it is a breach. He that enters into a condition must use all means to discharge it in convenient time. And where one disables himself to perform the condition, it is a breach. 1 Roll. Ab. 436, 437. pi. 7. 2 Ban. 61,62. 1 Roll. Ab. 447. pi. 1, 2. 4. Litt. sect. 357. Co. Litt. 221. 2 Co. 59.</p> <p>Second point. Whether the breach be well assigned ?</p> <p>The words of the condition are “ all such public and “ County allowances, which are usually allowed to the “ sheriff for collecting and paying the public and County “ levies, and all other fees, profits, and rewards belonging “ and appertaining, &c. and all prison fees, accounts, and “ balances of accounts that shall and may at any time ap- “ pear to be due,” &c. The replication states that R. P. was imprisoned 250 days ; that the commitment and imprisonment fees amounted to 5,060 wt. of tobacco, and that the defendant converted the same to his use. And so of R. B. 1,860 wt. of tobacco ; and of J. S. 2,600 wt. of tobacco. The tobacco received of A. J. 5,735 is alleged to have been the balance for sheriff’s dues. This is agreeable to the words of the condition, and is sufficient, as appears by the case in 18 Ed. IV. 20. pi. 29. See Raym. 8, 9, 10. 3 Bulst. 31. Sty. 428. Cro. Eliz. 749. 1 Sal. 139. 2 Saund. 373, 374. 2 Saund. 337. 1 Vent. 240. 6 Mod. 118.</p> <p>The stat. 4 H. IV. c. 5. by which the bailiwick of sheriff, shall not be let to farm. Answer — That statute is restrained vi terminis to England, and an oath is required of the sheriff to that effect. There is no such oath required here. The stat. 23 H. VI. c. 9. is also objected, but that too is a local and a private. The stat. 5 and 6 Ed. VI. c. 16. against the buying of offices is objected. But it is evident by the assembly proceedings, it never was deemed to be in force in Maryland. Fid. Journals. 2 Sal. 411. 4 Mod. 222. 2 Mod. 45.</p> <p>Objection. It is alleged in the replication that Gassaway continued sheriff till the 29th of October 1714, so that his office ended on the 28th. Yet it is alleged that during his continuance, viz. on the 29th, he converted, &c.</p> <p>Answer. This argument is pretty much like that of the fortieth degree of latitude. It signifies nothing (as is manifest) whether the conversion ivas before he was out of office or after, and supposing the allegation false, it is of no prejudice to the plaintiff, nor benefit to the defendant. Vaugh. 104. 2 Saund. 411. Arlington v. Merrick. See Main's Case, 5 Co. 20.</p>

<p>THIS was an action of debt, on an administration bond sued at the instance and for the use of Daniel Dulany.</p> <p>The defendant pleaded the conditions performed and the plaintiff replied that Daniel Dulany recovered a judgment in Calvert County Court against the executor who had assets, and that he refused to pay him.</p> <p>Rejoinder — confessing the assets with an encore prist. &c. Demurrer by reason of the departure.</p>

THIS was an action of debt upon a deputy commissary’s bond, executed by the defendant’s testator, as security for William Parker, to the plaintiff’s testator, on the 3d of December 1706, conditioned, “ That if the said “ William Parker, who was appointed deputy commissary 5C by the said John Contee, for Calvert County, shall well “ and truly execute the said office of deputy commissary, “ and make due return of all and singular his proceedings “ therein to the office for…

This is an action to recover a tract of land called Myrtle Grove, situate in Charles county. The appellant produced no patent for the land, but relied upon his possession, as admitted in a statement of facts agreed to by the parties.

<p>THIS was an action of debt on a sheriff’s bond. Performance of conditions was pleaded. Replication that the sheriff ought to make due return of all writs and process, &c. That he returned a writ of attachment so negligently that it was quashed, and the plaintiff obliged to pay costs. Rejoinder. That the said sheriff was not obliged to return the said writ of attachment, or any other writs, process or warrants, to him directed, in due form of law; that he returned the writ according to the best of his power, skill, and knowledge, and traverses the negligence.</p>

THIS was an ejectment for part of several tracts of land lying in Talbot County. The lessor of the plaintiff claimed title from the heirs of Judith Stanley. Held: the letters patent did not vary from the warrant, and was not contrary to the directions of the statute, because no warrant had ever been entered upon record. No one is to be disinherited by intendment.

This is an action of trespass, instituted in Charles county court, to recover the mesne profits of a tract of land lying in said county, called “Myrtle Grove.” The plaintiff to support her case, offered to prove, that it was in the possession of those under whom she claims, from the year 1817 to that of 1841, when the defendant entered and took possession, claiming it as the property of his son; she also notified the court that this proof was offered, to show legal title in…

An appeal from Calvert county court. The pause of action in this case is a promissory note, of which the following is a copy: “Huntington, September 24t]i, 1845. Four months after date, I promise to pay to Uriah Lavielle, or order, fifteen hundred dollars, value received, negociable and payable at the Farmers Bank of Maryland, Annapolis.

INFORMATION by Daniel Dulany, Esquire, Attorney-General, against Farthing, for erasing the assignment of a patent of a tract of land called Hockey Point, (which assignment contained a transfer in fee to a person unknown,) and that he afterwards burnt the patent. Verdict, Guilty; and júdgment, that he stand in the pillory one hour, and be fined 10,000lbs. of tobacco, and that he give good security for his good behaviour for twelve months.

THIS was an ejectment for a tract of land called Feme, lying in Charles County. At the trial the following special verdict was found, viz. We of the Jury find that Mathias O’Bryan was seised in fee of the land in dispute, and had issue, Eleanor O’Bryan by one venter, and William O’Bryan by another venter, and died seised of the said land.

THIS was an ejectment for 750 acres of land, part of a tract called Barbadoes, situate in Charles County. At the assizes held for Charles County a special verdict was found.

This, like the case just reported, is an action brought upon a promissory note, against the appellant, as the endorser thereof. The note was made negociable and payable at the Farmers Bank of Maryland.

Upon a judgment recovered by the appellee against the appellant, and certain Thomas Lloyd and Edward R. Wheeler, this action was brought in Charles county court. The judgment was rendered on the 4th December 1843, in the United States circuit court for the county of Alexandria, in the District of Columbia. Wheeler was the principal debtor, and the other defendants, his securities, in a joint and several bond.

Upon an appeal from Prince George’s county court, in an action of covenant brought in the said court by the appellant, upon the following sealed agreement of the appellees: “Bought of John H. Bayne, one of the administrators of Mrs. Mary E. Welling, two servants,. Tom and Aaron, for the sum of $1150.

THIS was an ejectment brought for a tract of land called Lloyd Town, lying in ^ween Anne’s County. The defendant took defence upon warrant for a tract of land called Adventure. At the trial, the Jury found by special verdict, that a survey of the land mentioned in the declaration was made, and a certificate, dated the 16th of March, 1679, returned anc* registered in the land-office, according to the laws and usages of the Province of Maryland.

Upon appeal frpm- Prince George’s county court in an action of replevin, brought by the appellant against the appellee, to recover negroes alleged to belong to the estate of the appellant’s testator. Pleas, non cepit, property in defendant, and property in a stranger. Issues were joined, and upon all the issues the verdict was for the defendant. In the progress of the trial, the plaintiff took three bills of exceptions. 1st Exception.

EJECTMENT for a tract of land lying in the Isle of Kent, in Queen Anne’s County. Held: had been in the full, quiet, peaceable and uninterrupted possession of the land in dispute for forty years.

INFORMATION filed the 8th of December, 1733, as follows, to wit. Held: into sc his Lordship’s land-office, by the day of ,” See.

Upon appeal from Somerset county court, in an action of trespass quare clausum fregit, brought by the appellant against the appellee, for trespass committed in the life time of the appellant’s testator. To the declaration filed in this case, the defendant put in a general demurrer, and judgment was given by Somerset county court for the defendant on the demurrer. Whereupon the plaintiff prosecuted this appeal.

This is an appeal in a case pending in Prince George’s county court. The verdict was for the defendant there, and one exception was taken by the plaintiff. The action was instituted on the 15th September 1846.

Upon appeal from Charles county court. This suit was instituted August 1st 1846. The declaration contained two counts. The first alleged an accounting together, and the second count was for money had and received. Pleas, non assumpsit, actio non accrevit infra tres annos, and other pleas, of which no notice could be taken in the argument or decision of the case. Issues were joined upon all the pleas, and a verdict was rendered for the plaintiff.

Presentment — a motion in arrest of Judgment being over ruled, the defendant prayed an appeal. In this court a motion was made in behalf of the State to dismiss the appeal on the ground that the case could only be brought up by a writ of error. An appeal will lie in a criminal case for a fine or penalty.

<p>In error to the court of Howard District of Anne Arundel county.</p> <p>Indictment was found in Baltimore city court. The defendant being arraigned, pleaded “not guilty,” and then made the suggestion, that he could not have a fair and impartial trial in that court, and asked that the record be transmitted to an adjoining county court. The city court, by its order of 36th May 1851, directed the record of the proceedings, to be transmitted to “Howard .District court,” to be held at Ellieotts Mills, on the third Monday of September next, and the clerk certified to the record, removed to the above term of Howard, county court. The case was tried at September term 1851, in the court of Howard District of Anne Arundel county, and the defendant was convicted of murder in the second degree. Thereupon he moved in arrest of judgment, and assigned the following reasons:</p> <p>1st. Because that court had no jurisdiction to try the case, the order of Baltimore city court directs the record of the proceedings, in said case, to be transmitted to Howard District court, and not to “the court of Howard District of Anne Arundel county,” for trial.</p> <p>2nd. Because the record of proceedings are ordered to be transmitted to Howard District court, and not to “the judges of the court of Howard District of Anne Arundel county.”</p> <p>3rd. Because the proceedings are not transmitted to an adjoining county court.</p> <p>In consequence of an equal division of the court, the motion in arrest of judgment was overruled, and the defendant was sentenced to the penitentiary.</p> <p>This case was argued before a full court, by W. H. G. Dorsey and Pitts for plaintiff in error, and Brent in behalf of the State. _</p> <p>On the behalf of the plaintiff, it was said, that the act of 1842, ch. 72, makes it unnecessary to say, in indictments, all that part of Anne Arundel county, included in Howard District, of said county, and makes it sufficient to say, Howard District. The act however, authorises this only in indictments. So the act of 1846, ch. 159, permits the substitution of Howard District, for the words formerly necessary on other occasions, but does not authorize the use of them, in the order of the court, directing the record of the proceedings to be transmitted.</p> <p>There must be a strict compliance with the terms of the law.</p> <p>He referred to act of 1804, ch. 55, sec. 3. 1838, ch. 22, sec. 4, this being a case before the adoption of the new constitution. 14 Vermont, 64. 3 Yerger, 281. 3 Dana., 224. 5 H. 4r J-, 61.</p> <p>As to the time, when this objection ought to have been made: It will be insisted that the objection was made too late, he had submitted to the jurisdiction of the court, by pleading not guilty. This plea however, was relied on in Baltimore city court, and he was not again arraigned, after the record had been transmitted to the court of Howard District. He referred to Archbold’s Criminal Pleading, 98, (in another edition, 193,) sec. 6. Russel and Ryan, 58, 1 T. R., 316.</p> <p>Howard District, is not adjoining the city. Baltimore county and city are separate in several respects. 1842, ch. 24-6, provides for different sheriffs, they have different delegates, and are separated and in different districts in the election of the governor. How'ard District, in no part of it, adjoins the city of Baltimore.</p>

A writ of error to the judges of the third judicial district. Held: &e.

Miller applied to Frederick county court for the benefit of the insolvent law, and Trail was appointed his trustee. The trustee afterwards filed an ex-parte petition, on the equity side of Frederick county court, stating that he had sold the property of the insolvent, and praying the court to order a distribution of the funds. The court by its order directed the trustee to bring the money into court, and that notice be given to creditors to file their claims.

This case is brought by appeal from Charles county court, sitting as a court of equity. The bill was filed on the 6th February 1849, by appellant, who had purchased a tract of land sold by the appellee, as trustee of that court for the sale of the real estate of James B. Pye. It alleges, that the trustee, in his advertisement, stated, that the tract contained, by survey, six hundred and sixty-four acres.

THIS was an indebitatus assumpsit upon an account £e for sundry articles, properly chargeable in account.” It appears from the bill of exceptions taken at the trial, that the plaintiff offered in evidence to the Jury an account proved by the oath of the plaintiff and another witness, before the Lord Mayor of London, in which account was an article of 513/. 9s„ charged for the balance of the negro account. Another article of ÍSl. current money, 1C9/.

EJECTMENT for a tract of land called. Brambly-' Plantation, or Gerard’s Brambly, lying in Saint Mary’s County. Several bills of exceptions were taken at the trial of this cause: 1.

The appellant is the widow of Robert Chew, and filed her bill of complaint in the court of chancery, claiming dower in certain lands, an estate in which was devised to her husband,, by the will of John Chew, dated the 9th, May, 1815, The clause in the will is in these words: I give and bequeath unto my wife, Elizabeth Chew, all my lands, during her natural life, and after the death of my said wife, I give and bequeath all the said lands, to my son Robert Chew, and my…

This appeal is brought from Washington county court, and is in an action of slander, brought by the appellee against the appellant. The words spoken, were, that the plaintiff below was insolvent, he at the time being a miller. The defendant pleaded the general issue, justification, and act of limitations. Verdict was for the plaintiff. Exceptions by the defendant. 1st. Exception.

<p>EJECTMENT for a tract of land called Anne's Delight, lying in Baltimore County.</p> <p>At the trial of this cause, the Jury found by their special, verdict, That Henry Wriothesly was seised in fee-, by virtue of a patent from the Lord Proprietary, dated the 24th of April, 1701, for the land in question; and being so seised, he devised it in fee to his wife Anne. That the said Anne residing in Baltimore County, and being seised by virtue of the devise, made her power of attorney, bearing date the 25th of August, 1713, to Roger Mathews, of the same County, empowering him to alienate, sell, “ and make “ over all or any part of her land or lands, which she then “ held within? the Province, and to execute, acknowledge, “ sign, seal, and deliver, for her and in her name, all such “ deeds, conveyances and assurances, as are needful and “ necessary in the law for the selling and making over the u land unto any person or persons whatsoever, her said st attorney shall sell unto.” Which power of attorney was executed in the presence of two witnesses, and by one of them proved, before a Justice of the Peace, to be the act and deed of the said Anne, and was recorded among the Baltimore County records. That the said Anne, by deed indented and enrolled, conveyed the land in dispute to William Brawn, of Cecil County, merchant, in fee, which deed is in the following style: “ This indenture, made “ this 29th of September, 1713, between Anne Wriothesly, “ of Baltimore County, widow, of the one part, and Wil'l Ham Brovm, &c. of the other part, Witnesseth, That the “ said Anne, in consideration of 80/. doth bargain, sell, &c. <c to the said Brown f &c. in the usual form, and signed “ Roger. Mathews, Attorney in fact for the said Anne “ Wriothesly.” And then follows the seal. And was acknowledged in the following form: “ On the 29th day “ of September, 1713, came Roger Mathews, the lawful “ attorney of the within named Anne Wriothesly, before “ us, two of her Majesty’s Justices of Balti7nore County, “ and acknowledged the within deed unto the said William “ Brown, his heirs, executors, and administrators or as- “ signs, on part and behalf of the said Anne Wriothesly.” Signed by the two Justices. That William Brozvn devised the land .so conveyed to him to be sold by his executrix, and by his will nominated and appointed Hester Brown, his wife, sole executrix. That Hester Brown, at his death, became seised, and conveyed the same to Hannah Johns In fee, who afterwards married John Hall, the defendant. -That the defendant and his wife entered into.the land in question about the 5th of August, 1732, and have been actually seised thereof till the bringing of the suit.</p> <p>.. It was further found, that Anne Wriothesly, to whom the .land was devised by Henry Wriothesly, her father, about the year 1720,' died seised of the land in question, without heirs and intestate, and so became liable to escheat, unless the conveyance made by Roger Mathews as her attorney, divested her of the estate. That on the 15th January, 1745, an escheat patent was granted by the Lord Proprietary to Stephen Onion, the plaintiff in this cause, for the land for which this ejectment was brought. •</p> <p>The Court gave judgment for the defendant, and the plaintiff appealed to the Court of Appeals.(a)</p>

This was a suit brought in Frederick county court against the appellant. The declaration contained the money counts. The case was referred by an agreement which required the award to be made on principles of law and equity. Award in favor of the plaintiff, and the appeal is from the judgment on that award, and in this court the wish of the parlies was made known to the court, to have the case, which was an amicable suit, disposed of upon equitable principles.

THIS was an ejectment for a tract of land called Spalding's Adventure, lying in Saint Mary’s County, contain» ing 207 acres. Verdict for the plaintiff.

This is an appeal, from a decree of Allegany county court sitting as a court of equity, in favour of the complainant, and directing the defendant, who was co-executor with the complainant,of one B. Tomlinson, to pay over to the complainant a sum of money, supposed to be due from the defendant, to the estate of the testator. The record is very large, and many questions were argued by the counsel.

<p>EJECTMENT for a tract of land called His Lordship’s Manor of Susqnehannah, or New C'onnaugh, lying in Cecil County, containing 540 acres. Verdict for the defendant,</p> <p>At the trial of the cause, two bills of exceptions were taken:</p> <p>1st. The plaintiff produced a lease of the premises in the declaration, made by Benjamin Tasker, Esquire, as agent of the Lord Proprietary, dated the 24th December, 1748, purporting - to be “between Benjamin Tasker, Esquire, “ agent and receiver-general of the Right Plonourable the “ Lord Proprietary of Maryland., &c. for and on behalf of “ the said Lord Proprietary of the one part, and Samuel ^ Thomas, junior, of Cecil County, of the other part,” and reciting, that the said Tasker “ is fully authorised and 66 empowered by the said Lord Proprietary to demise,” See. The said 84 Tasker, in consideration of the rents and u covenants, &c. to be paid and performed by the said i( Thomas, hath, with the consent and approbation of S'aw muel Ogle, Esquire, testified by his signing and sealing u these presents, demised, &c. unto the said Samuel Thou mas all that tract or parcel of land being part of His Lord-u ship's Manor ofSusquehannah, alias New Connaught, begin-M ning, &c. containing 540 acres, &c. To have and to hold;, u &Ck to the said Samuel Thomas, his executors, administraM tors, and assigns, for and during the natural life of the said u Thomas, also of Richard Thomas, also of John Thomas, “ junior, yielding and paying an annual rent of 4h Is. ster48 ling to the Lord Proprietary, &c. Renewable during 66 the lives of the heirs of the said Samuel Thomas, upon “ payment of the like rent,” &c.</p> <p>The plaintiff also produced a grant or patent to Francis Wright in fee, dated the 19th September, 1659, for a tract of land called Clay fall, containing 500 acres.</p> <p>It was also proved, that the premises mentioned in the lease to be demised to the lessor of the plaintiff were the same lands which were granted to the said Francis Wright» It was also proved, that Francis Wright, in the year 1667, died seised of the premises in the declaration, without heirs, whereby the land escheated to the Lord Proprietary.</p> <p>Whereupon the defendant produced and offered in evidence, two grants or patents made to George Talbot, Esquire, in fee, of the Manor of Susquehannah, alias Con-naught, which grant purports to be for “ 32,000 acres of u land called Susquehannah, lying in Cecil County>” dated the 11th June, 1680. Also offered in evidence a grant of confirmation for the said land called “ Susquehannah Ma= “ nor,” alias “ New Connaught Manor,” containing 32,000 acres, dated the 22d March, 1683.</p> <p>It was also proved, that the premises mentioned in the declaration, in the lease, and also in the grant to Francis Wright, are included within the bounds of the Manor of Susquehannah, granted to George Talbot.</p> <p>To which the plaintiff by his counsel objected, and insisted, that the grant to George Talbot could not nor ought to operate upon the lands in the declaration, so as to convey the same to the said George Talbot, the lands being escheat; and thereupon prayed the opinion of the Court, who declared their opinion that the said two last mentioned grants did operate to convey the premises in the declaration mentioned to the said George Talbot. To which the plaintiff excepted.</p> <p>2. The defendant, to shew that the Lord Proprietary, before the deed purporting a lease from Benjamin Tasker as agent of the Lord Proprietary to the lessor of the plaintiff, had divested himself of the lands mentioned in the lease, produced and read to the Jury the patent from the Lord Proprietary to George Talbot, within the bounds of which patent the said lands were comprised; Whereupon the plaintiff produced and read to the Court and Jury an exemplification, under the great seal of the colony of Virginia, purporting a conviction of and judgment against the said George Talbot, for stabbing, contrary to the form of the statute, a certain Christopher Rousby, in 1684, on board of his Majesty’s ketch the Quaker, riding in the Capes of Virginia, at a General Court held at James City, in the Colony of Virginia, on the 20th of April, 1686. The record also states, that the said Talbot, on the 20th April, 1687, presented his Majesty’s most gracious pardon, which was received.</p> <p>Whereupon the defendant, by his counsel, objected to the Court, that the conviction and judgment aforesaid was absolutely void and of no effect in law; and the Court declared themselves of that opinion, and directed the Jury accordingly. To which the plaintiff excepted.</p> <p>The Court in this case being in doubt whether the power from the proprietor to the agent under the great seal, gives the agent an authority to lease, or dispose of an estate for lives under yearly rent, in forfeited or escheat lands, refer the same for consideration, and if they shall be of opinion in the affirmative, then the case is with the plaintiff; but if in the negative, then with the defendant.</p> <p>Judgment for the defendant.</p> <p>The plaintiff appealed; and the Court of Appeals, at February Term, 1755, reversed the judgment of the Pro» vincial Court*</p>

The plaintiff and defendant were parties in trade, and having determined to dissolve the partnership, entered into articles of agreement, bearing date the 6th January 1836.

<p>THIS was an action of debt upon a writing obligatory, executed by the testator to the plaintiff, on the 10th of November, 1740. The. writ issued on the 8th of November, 1752. The defendant pleaded the act of 1715, c. 23. entitled u An act for limitation of certain actions, for “ avoiding suits at law.” Non est factum, payment, and plencadministravit. Replication. “ That the original writ “ issued on the 8th of November, 1752, and the debt afore- “ said by virtue of the writing obligatory aforesaid,-was not “ of "twelve years standing, wherefore the same writing was- “ good and pleadable, and ought to be admitted in evf “ dence.”' Issue to the second plea; non-payment to the third, and assets to the fourth plea.. Rejoinder to the. replication to the first plea, that the debt aforesaid was-above twelve years standing, and general demurrer thereto..</p> <p>The verdicts, upon the issues in fact, were for the plaintiff, and judgment upon the demurrer for the plaintiff. By the bill of exceptions filed in this cause, it appears that-,, at the trial of the cause, the plaintiff" offered in evidence the bond mentioned in the declaration, and to prove the same to be the deed of the deceased, in support of the first Issue in fact in the cause, to which the defendant by her counsel objected, and read and offered to the Court an act of Assembly, made and passed at a session of Assembly, begun and held on the 26th day of April, 1715, entitled “ An act for limitation of certain actions, for avoiding suits 61 at law.” And insisted to the Court that the said bond ought not to be admitted in evidence to the Jury on this trial, and prayed the opinion of the Court to that purpose.</p> <p>The question was, whether if an action is brought upon a bond before the expiration of the twelve years, and when the bond is offered in evidence the twelve years are expired, the bond shall be admitted in evidence ?</p> <p>The words of the act are these : “ That no bill, bond, u judgment, recognizance, &c. except such as shall be “ taken in the name, and for the use of our Sovereign Lord “ the King, shall be good and pleadable, or admitted in “ evidence, after the principal debtor and creditor have been “ both dead twelve years, or the debt or thing in action a above twelve years standing.”</p> <p>For the plaintiff it was argued,' that the bringing the action before the expiration of the twelve years, prevented the act being a bar.- That the clause ought to be construed secundum subjectam materiam, and that the subject matter appears, by the preamble, to be a limitation of time for the commencing of actions, and, therefore, as this appears to have been the intention of the law-makers, the act in all the parts of it ought to be construed so as to answer it ;■ wherefore it was concluded that the words admitted in evidence related to such bonds, upon which the action was not commenced within twelve years.</p> <p>That if this be not the sense of the act, there would be a double limitation, and one of them could have no effect; for if abondis not to be admitted in evidence, -when at the time of offering it in evidence it is above twelve years standing,, the other limitation, that it should not be pleadable, which means the bringing of the action,, will have no effect.-</p> <p>That it would be unreasonable to suppose, that the law* makers would avoid the plaintiff’s bond, on account of his laches, when that from which the laches is inferred depends'as much upon the act of the defendant as himself; for a trial cannot always be had when the plaintiff pleases : as, therefore, the plaintiff is to suffer by the act for his neglect, it follows that the neglect must be entirely his own; that is, that it must be the omission of something which he might do, and which is owing to his own default that he did not do it; wherefore it was concluded, that the law related only to the time of bringing the action, which is the sole act of the plaintiff, and to which the concurrence of tire defendant is not necessary, as in the case of a trial.</p> <p>That according to a strict grammatical construction* the time relates only to the commencement of the suit; for the words are, that no bond shall be admitted in evidence after the principal, debtor and creditor have been both dead twelve years, or the debt and thing above twelve years standing, i. e. after the debt or thing in action hath been twelve years standing, which being the preterperfect tense, is relative to some time before the bond is offered in evidence, which must be the bringing the action, for no other tense is taken notice of in the act.</p> <p>That as the intention of the law-makers is so plain, to limit the time to the bringing the action, the act shall be so moulded (if necessary) as to answer that intention; and therefore the or shall be construed and, and then the words would be, shall be good, pleadable and admitted in evidence, which would restrain the time in the bringing of the action, and for this was Co. Litt. 272. cited.</p> <p>That the time must relate to the bringing the action ; fob the1 words are, the debt or thing in action above twelve years standing, because, after tire suit brought, the debt cannot properly be said to be standing.</p> <p>On the other side, it was argued, that the act ought to be construed so as to advance the relief intended by it. Here the relief intended was to bar the recoveries on stale demands; that no case can be cited of an act being taken by equity, against those for whose relief it was made, and any laws that may be cited of a favourable construction of a proviso, do not impugn but prove this, for those who are mentioned in a proviso are as much intended to be relieved, as those for whose benefit the general enacting clauses were made, as in 2 Mod. 71. It was, therefore, concluded that when a strict construction of a remedial statute is the most beneficial to those for whose benefit it was made, such construction shall prevail.</p> <p>That by a strict construction in this case, the bond ought not to be admitted in evidence where above twelve ye air standing, which can have no other meaning than that a bond, when it is offered in evidence, shall not be admitted, if then it is above twelve years standing.</p> <p>That no part of the clause ought to be rejected, but if the time does not relate to the offering the bond in evidence, that part of the act upon which we rely must be totally rejected, which would be maledicta expo sitio.</p> <p>That from the different expressions of the act in different parts of it, it must be concluded the law-makers (should an equitable construction prevail) intended that the plaintiff should be barred, if the bond was above twelve years standing when offered in evidence. For by the first enacting clause, the time is expressly limited to the bringing of the action, and speaks nothing of the evidence; for instance, no action shall be brought upon a promissory note after three years, but'the act does not say, that a promissory note shall not be given in evidence after three years.</p> <p>Suppose the words of the act had been, “ no bond shall “ be admitted in evidence after twelve years standing,” it would then have been clear that the time related only to the offering the bond in evidence, and if so, in the case put, for the same reason it must be so here, for the act is in the disjunctive, and every part of it is for the benefit of the defendant, and in disjunctivis sujpcit alteram partem esse veram. Pollex. Hunt v. Price.</p>

This case is brought by appeal from the orphans court of Washington county. It appears by the record, that R. W. Watkins, of Washington county, departed this life in the year 1845, having previously and on the 8th day of April 1845, duly executed his last will and testament, wherein, among other devises, are found, in substance, the following to his wife Ellen: “First. One-third of his estate, independent of his claims against the Chesapeake and Ohio Canal Company. Second.

EJECTMENT for a tract of land called Harwoods Lyon, lying in Talbot County, and containing 400 acres. At the trial of the cause, the plaintiff, in order to make out his title to the lands in question, offered to give in evidence to the Jury a copy, under seal of the land-office, of a patent for the lands in question from the Lord Proprietary to one Thomas Harwood, dated the 12th of February, 1663.

MOTION to dissolve the injunction issued to stop the execution of a judgment, obtained at law by the defendant’s lessee, against the relator at September Term, 1760, for a tract of land called Bedford, except twenty-five acres laid out for Princess Ann.

This is an action of ejectment, instituted 27th September 1849, by the appellant, to recover a tract of land in Allegany county, called “Commonwealth.” The single question in this case, to be decided by the court, was whether a deed bearing date 13th December 1845, executed by the plaintiff to William Band, Edward Whitehouse and John Alexander; and conveying to them in trust, the land in controversy, was a bar to the plaintiff’s recovery ?

EJECTMENT for a tract of land called Curse’s Forest, lying in Baltimore County. Defence was taken for Cockey’s Folly, granted in 1721.

THE plaintiffs in this case, residents in Great Britain, issued writs with short notes against the defendant in case, and at last April Term, obtained judgment for attachment against the effects of the defendant in this province. And at this term, Mr. Hollyday movedto quash the attachment^ on the ground that creditors in England were bound by the statute of bankruptcy, and could not attach the effects of a bankrupt in this province.

EJECTMENT for a tract of land called Westwood Manor, lying in Charles County, surveyed the 27th March, 1651, for Thomas Gerard, “ lying at the head of Wicomico “ River, near the creek called the Herring Creek; begin- “ ning at a marked oak standing near the said creek, and “ bounding on the south with a line drawn east from the said “ oak, unto a creek called Westwood Creek, to a marked oak “ standing near the said creek; on the east, with a line “ drawn north up the creek,…

This is an appeal from Washington county court, in a suit brought by the appellant against the appellee, the late sheriff of said county, for a false return of a fi.fa., against Abraham Barnes, placed in the hands of the appellee, as sheriff. This ji. fa. was issued 19th December 1838, returnable March term 1839. This suit was brought 3rd December 1847.

The case was this : Stephen West sued Andrew Stigar, in the Provincial Court, and at September Term, 1763, the cause was referred to two arbitrators, and if they disagreed, to choose a third person and return their award, “ and judgment to be rendered according to such award, ec and be final between the said parties, according to the term. ic of the statute,” &c. The award was returned, and a judgment entered on it.

This is an appeal from a decree of the court of chancery, by John H. Thomas, one of a number of defendants, in a bill filed in that court by John Doub. The case has several times been brought into this court by different parties, having distinct and very often conflicting interests. J. H. Thomas is the only appellant in this case.

THIS was an action of trespass for breaking the close-called Greenfield, lying in Prince George’s County. At the trial of this cause, the plaintiff offered in evidence to the J ury an arbitration bond in the usual form, and also the following award, (to have weight with them as far as it might,) to prove the location of Brock Hall, located on the plat returned in the cause, viz. 11 Prince “ George’s County, ss.

<p>EJECTMENT for a traqt of land called Huddle’s Right, lying in Kent County.</p> <p>From the special verdict found at the Kent Assises, held at September term, the state of the case appeared to be, that James Sterling was seised as tenant by the curtesy, and by bargain and sale conveyed the land in question to John Gresham and his heirs; that John Gresham entered and died seised during the life of the tenant by the curtesy. John Gresham, the son and heir at law, entered on the death of his father. James Sterling, the tenant by the curtesy, died, and John Gresham, the son, continued in possession after the death of the tenant by the curtesy, and executed a lease to Samuel Smith, the defendant, for one year. Arthur Holt, the heir of the reversion, never entered.</p> <p>Two questions arose out of the special verdict:</p> <p>1. Whether it was necessary for A. Holt, the heir to whom the reversion descended after the death of the tenant by the curtesy, to enter, to vest himself with the possession ?</p> <p>2. If it was requisite whether the confession of lease, entry, and ouster, by the defendant, did not extend to such an entry?</p> <p>If the tenant for life bargains and sells in fee, it passes only an estate for life. 1 Bac. 274. 2 Bac. 280. A particular estate of any thing that lies in grant cannot be forfeited by any grant in fee by deed, because nothing passes thereby but what lawfully may pass. Co. Litt. 251. Haw. Abr. 339. 1 Lev. 264. pi. 354.</p> <p>There are two sorts of descents which toll entries — in fee an<^ in tail. Co. Litt. sect. 385. The dying seised for one’s own life, or for the life of another, never takes away an entry. Co. Litt. sect. 387. The bargainee of tenant in tail has an estate descendible, and determinable on the entry of the issue in tail only. 2 Salk. 619. 2 Lev. 190.</p> <p>The tenant in possession must confess lease, entry, and ouster. Gilb. Eject. 2, 3, 4, 5. 68. 70. The confession of lease, entry and ouster extends to the entry of the lessor to complete his title. 2 Show. 201. 2 Lev. 248. Co. Litt. 218. a. 2 Ray. 750, 751. S. C. 1 Salk. 259. 3 Keb. 382. 1 Vent. 248. An actual entry is necessary to avoid a fine, and the confession of an entry to deliver a lease in ejectment, shall not operate to avoid afine. 2 Stra. 1086. Andr. 136. Gilb. Eject. 27. Cro. Eliz. 438. The confession of lease, entry, and ouster, confesses an eniryprevious to the making of the lease. 1 Burr. 111.</p> <p>An actual entry is necessary to divest the estate out of Smith, the lessee of John Gresham, the bargainee of the tenant by the curtesy. An estate of freehold cannot cease without an actual entry. Co. Litt. 214. b. 218. a. A tenant at sufferance comes in by lawful demise, and, after the determination of his estate, holds over wrongfully. Co. Litt. 57. b. A trespass will not lie against a tenant at sufferance before an entry made. 2 Bl. Com. 150. A possession in law is not sufficient to maintain an ejectment; but it must be an actual possession. 2 Bulst. 217. Noy, 73. Law oj Eject. 68, 69. 2 Bac. 171. Nothing is confessed by the confession of lease, entry, and ouster, but what is laid and charged in the declaration.</p> <p>By entering into the common rule, nothing more than an entry to make the lease, is confessed. 3 Keb. 282. The title of action is not confessed by the confession of leas.e entry, and ouster. 2 Bac. 171. The defendant is compella» ble to confess lease, entry, and ouster. Gilb. Eject. 27. The confession of lease, entry, and ouster, to deliver a lease, shall not operate so as to avoid a fine. 2 Stra. 1086. Andr. 36. The confession of lease, entry, and ouster, confesses the entry of the lessor previous to the malting of the lease, for the purpose of the trial of the title only. 1 Burr. 111. 1 Vent. 248. Salk. 259. Gilb. Eject. 224. It is only & fictitious, not a real entry, that is confessed.</p>

EJECTMENT for a tract of land called Keepont, ly* ing in ¡hieen Anne’s County.

EJECTMENT, for two tracts of land, called Plantation, and Howard’s Range, lying in Anne Arundel County, The action commenced on the 17th August, 1765. At the trial of this cause at the Assises held in Anne Arundel County, in September, 1768, the plaintiff, to prove that Anthony Johnson was the eldest son of Anthony Johnson, by his first wife, and that William.

EJECTMENT for a tract of land called CarvilVs Adventure, lying in Kent County. Held: used, or enjoyed, or of right ought or might have had, held, used, or enjoyed.

<p>EJECTMENT for three tracts of land, called Motherly Care, The Cool Springs, and Howard’s Addition.</p> <p>At the trial of this cause at the Anne Arundel Assises, held in September, 1768, the Jury found, by their special verdict, that Vachel Denton was seised of an estate for life, and Anne his wife of an estate in fee-simple, in the two tracts Motherly Care, and The Cool Springs, and that he was also seised of the tract Howard’s Addition, in fee, in right of his wife. That they being so seised of the three tracts of land, Vachel Denton, on the 18th of June, 1747, executed a deed of indenture to Alexander Hamilton, being a deed of lease, or bargain and sale for one year of the said land, to the intent that the said Alexander Hamilton might be put in possession, in order to take a grant, or release of the reversion, “ to such uses, intents and purposes, “ as shall be thereby mentioned.” That on the 24th of June, 1747, the said Denton and wife, executed an indenture to the said Alexander Hamilton, which deed set forth, “ that “ the said Vachel and Anne\ in consideration of the several “ sums of ten shillings, did grant, bargain, sell, alien re- “ lease, enfeoff and confirm unto the said Alexander Ha~ “ milton, (in his actual possession then being, by virtue of <c a bargain and sale thereof, to him made by the said “ Vachel Denton, and by force of the statute for transfer- “ ring uses info possession,) his heirs and assigns, the said “ tracts of land, &c. to have and to hold, &c. to and for the “ use, intent and purpose following, to wit: that the said “ Alexander Hamilton shall, by deeds of lease and release, “ or by such other sufficient conveyance, well and suffi- “ ciently convey the premises unto the said Vachel Denton, u and Anne his wife, for and during their respective natural 44 lives, and after their decease; remainder to Denton Ham-st mond,, and to the heirs of the body of the said Denton, 44 remainder to Rezin Hammond, and to his heirs, and to and 44 for no other use, intent or purpose whatsoever.” That by virtue of the said deeds, Alexander Hamilton was seised of the said several tracts of land, and being so sejsed, on the 25th of June, 1747, executed a deed to Vachel Denton, being a lease, or bargain and sale for one year, “ to enable 44 Vachel Denton and his wife, to take a grant to them and 64 their heirs, in such manner and under such restrictions, 44 and to such uses, intents and purposes, as shall be there-44 by declared.” That on the 26th of June, 1747, the said Alexander Hamilton did execute another indenture to said DentonwA wife,whichindenture,reciting the previous deeds of lease and release, set forth, that it was for the true and perfect fulfilling the intent, and purpose, and meanings of the afore recited deeds of lease and release, to Alexander Hamilton, and did grant, bargain, sell, release, &c. the said lands, &c.44 unto the said Vachel Denton, and Amiehis wife, 44 and their heirs and assigns, to have and to hold, &c. unto 44 the said Vachel Denton, and Anne his wife, for and during 44 their respective natural lives, and after their decease, re-44 mainder to the aforesaid Denton Hammond, and to the 44 heirs of his body; remainder to the said Rezin Hammond, 44 and to his heirs forever, and to and for no other use, in-44 tent or purpose whatsoever.”</p> <p>The Jury also found, and set forth at full length in their verdict, the act of Assembly of 1715, c. 47. entitled 44 an 44 act for quieting possessions, enrolling conveyances, and 44 securing the estates of purchasers.” Also the act of 1752, c. 8. a supplementary act to that of 1715. And also, that formerly, and before any act of Assembly was made in this Province, enabling Provincial magistrates, or Justices of the Peace, to take the acknowledgment of feme coverts, lands were sometimes conveyed by fine, passed in the Provincial Court of this Province, or in the County Courts, but that since the said acts, the method of conveyanee by fine hath been disused, and the usual mode hath been by deed executed out of Court, and private examinations had before one or more magistrates, according to the directions of the particular acts, enabling magistrates to take such examinations. That the said Vachel, and Anne his wife, after the execution of the said deeds, died without issue. That yohn Brice, the father of the defendant, is heir at law of Ann Denton, and conveyed the land in question to the defendant. The plaintiff claims title under the deeds of lease and release.</p> <p>We claim in virtue of the deeds, the estate for life being spent and the remainder in tail vested in the lessor of the plaintiff.</p> <p>Were we to consider the intent of the parties, and maké it our guide, the case could not admit of any doubt. The whole scope of these deeds, and the plain and express intent of them, was to give an estate for life to Vachel Den-ton, and Anne his wife, remainder in tail to Denton Hammond, remainder in fee to JRezin Hammond. The lease from Vachel Denton to Alexander Hamilton, mentions that the intent of the lease is to put him in possession, so as to enable him to take a release to such uses, intents and purposes, as shall be thereby mentioned. It seems, then, the uses which were to be mentioned in the release, were those intended by the parties, and were the sole view they had in making.this conveyance. In this release they recite their intention of settling and disposing of the lands, for the intent and purpose thereafter expressed and declared. Again they say to hold the lands to and for the use, intent and purpose folloxving, and the uses are then expressed very fully and particularly. This deed is therefore to be considered as disclosing and particularizing the intentions of the parties, and were, together with those to be made in consequence of it, to operate as one general settlement, to effectuate the purposes specified. The lease from Alexan-. der Hamilton, mentions the intent of it was to put them in possession, so as to take a release of the reversion and inheritance, to them and their heirs, in such manner, and to suck uses, &c. as should be thereby declared. What then were these uses ? This release recites the former deeds of lease and release, and the particular uses therein mentioned, and is said to be made for fulfilling- the intent of the said deeds of lease and release, and every clause, article and covenant therein.</p> <p>The Court then agreeably to principles of natural justice, where there are no particular legal rules to be observed, would determine it in our favour ; therefore, it is to be considered if there are any such rules.</p> <p>Before I consider what objections may be made, I will premise some rules for the exposition of these deeds, and I believe I may allege it to be a general rule, that the Court will in all cases support, if possible, the intention of the parties, unless it be repugnant to the general policy of the law. But where the conveyance is byway of use, as those deeds are, this rule is more particularly attended to.</p> <p>It is objected that it is a conveyance at common law, and therefore not entitled to the same equitable construction, as a conveyance under the statute of uses,</p> <p>This objection admits the reasoning, that conveyances under the statute should be construed beneficially, according to the party’s intention, but denies its application in the present instance, as it is contended the present conveyance is at common law. This matter is therefore to be considered, and we shall find that this mode of conveyance may be either at the common law or under the statute, and therefore to know whether the deeds under consideration are to be looked on as executed either one way or the other, we must seek for the facts which make the distinguishing difference, and when found, they will enable us to determine this matter without difficulty.</p> <p>At common law the usual mode of conveyance was by feoffment, which was a solemn delivery of the possession of the land, and the ceremony used in the act of delivery, was called livery of seisin ; by this act of notoriety before the tenants of the same Manor, notice was given of the translation of the feud, and this public investiture was presented at the next Court. By this method, Lords knew on. whom to avow for their services, and there being a visible tenant of the freehold, strangers were not perplexed to know against whom to bring suits. As this mode of transferring property was instituted to notify who was the freeholder, it is easily perceived that the feoffment could not be made to commence at a future day; for if after this ceremony any other resided in the possession, this institution would rather create perplexity than avoid uncertainty, for the possessor would be presumed to be the freeholder, and a stranger be induced to bring hisprcecipe against him. 2 Bac. Abr. 486. 489.</p> <p>Where therefore another resided in the possession, and the person in reversion transferred his estate by a grant of the reversion to a third person, or released to particular tenants, there were frequent questions about making .livery of seisin, which were troublesome, and as necessity first gave rise to this conveyance, it hinted a more facile way of conveying property than by feoffment, and suggested the method of making a lease, to put the party in possession, and then to release all the estate and interest to the lessee. This method was perhaps but seldom used before the statute, but at that time an actual entry in virtue of the lease was necessary, otherwise the release could not operate, for till an entry the lessee had no possession for the release to work on; but he only had, as my Lord Coke says, an interesse termini. Co. Litt. 2 70. a. This then is the distin- . guishing difference to denote the lease and release to be a conveyance at common law, viz. the actual entry in virtue of the lease j but no such fact is found in the verdict, and it is not to be presumed.</p> <p>When the statute of uses was enacted, the possession might be acquired without any entry, for that statute executes the use to the possession, and therefore, whoever has the use, shall be adjudged in the possession under the statute. It cannot' be denied here, but that the consideration mentioned in the deed, will raise a use to Vachel Denton and wife; they are then m possession under the statute. See 2 Vent. 35. 4 Bac. Abr. 2J7.</p> <p>. This executing the use to the possession by the statute, was found to be a much readier way of gaining the possession, than by an actual entry, and therefore since the statute H. VIII. the former method by actual entry has been disused, and there is a clause introduced in the lease, stating that it is made to put the party in possession, by-virtue of the statute of uses. These points are well explained in 2 Mod. 249. better reported than in any other book. See 4 Bac. 276.</p> <p>It is then obvious that this is either a conveyance under the statute of uses, or no conveyance at all; for it cannot operate at common law, the essential circumstance to give it operation not being found, and to construe it a void deed, is against all rules of law; for wherever a deed can have operation in any manner whatever, it shall be supported.</p> <p>The first point then is, that this being a conveyance under the statute of uses, it is to be expounded liberallyJ; according to the party’s intention. Were we in this instance to adopt for the rule of construction, that where the intent is apparent, such construction shall be made as may support that intent, the question would be easy j for from the whole of these deeds the intent is manifest to give an estate for life to Vachel Denton and wife, remainder in tail to Denton, remainder in fee to Rezin Hammond. The intent then being apparent, and this being a conveyance under the statute of uses, it is to be construed so as to effectuate the intention. Rollex. 525, 526, 527. 33, 34. 36, 37. 1 Vent. 137. 141. 372, 373. Gilb. Uses, 235, 236. Moor,. 722, 723. Carth. 343. 2 Lev. 78. 225, 226, 227. Co. Litt. 12. a. 13. b. Hob. 277. 2 Bac. Abr. 660. 1 Atk. 8.</p> <p>The second objection is, that it is a rule of law, that ■wherever the habendum is repugnant to the premises, it shall be void.</p> <p>This rule must be grounded on some reason. The rea» son is that the habendum being uncertain, the premises shall stand, an estate passing by them, and there being nothing more certain contained in the deed to guide the " Court. But where from other expressions in the deed, explanatory of the premises, or referring to something to shew the clear intent of making this deed, it clearly appears that the parties intended to pass an estate according to the habendum., and not according to the premises, the habendum shall controul and explain the premises. For in looking through the books, we shall find that deeds are construed frequently according to the estate in the habendum, though repugnant to the premises, and I apprehend it to be under the above distinction.</p> <p>An habendum shall be void unless in special cases. Perkins, sect. 161. This shews the rule not to be general; but where the deed especially denotes the party’s intent, there the habendum (unless incompatible with those rules introduced for the public good, so as not to create a perpetuity _) shall stand, though repugnant to the premises.</p> <p>An implied estate in the premises, shall be controuled by an express estate in the habendum. 2 Co. SS. Buckler's case. This is under the above rule, for an estate being generally given in the premises by implication of law, it shall be an estate for life ; an estate of inheritance it cannot be for want of proper words of limitation, and the next greatest estate against the grantor, is an estate for life ; but this being only what the law presumes, the force of the presumption is taken off by the express words.</p> <p>A grant to a man and his heirs of a rent, to hold to him and his heirs during a stranger’s life is good. 1 Brozunh 169. Wilkins v. Daure. The reason of this is, that the grantee might die during the stranger’s life, and then these words prevent the occupancy. It is so explained in 2 Bac. . Abr, 497.</p> <p>If lands are given to one in the premises, habendum to him and his wife, the daughter of the donor in frank mar-«age, it is good. 2 Roll. Abr. 67. pi. 17. Here are expíanatory words to shew the gift was to take in frank marriage, which could not be if the wife did not take.</p> <p>In Plowden, 161. the case was where the reversion of land was granted in the premises, habendum the lands themselves from Michaelmas, it was insisted there was a repugnancy between the grant of the reversion, and of the lands. T. Jones, 4. 106.</p> <p>By the third resolution in Baldwin’s case, (2 Co. 23.) it appears that the reason of making the habendum void, is for uncertainty, and Coke in his note remarks, that if livery of seisin had been made, it would, not have availed, for it was a lease for years at the beginning; that is, it was apparently the intent of the parties that it should be so, by their using the words grant, demise, &c. Further, the uncertainty is, that the reason why the habendum is void, appears from the other distinction; for by the fourth resolution, the habendum shall stand, though contrary to the premises, if to the perfection of the estate in the premises, a ceremony is requisite, and not to the one in the habendum; from, this it would seem, that as the party knew the deed could sot operate without a final ceremony, to convey an estate according to the premises, and that it would to convey one according to the habendum, that by omitting this ceremony, it was an indication of the party’s intent to pass the estate the other way, consequently, it is a circumstance which removes the doubt subsisting in the other instance. Pin. tit. Grant, 154. where this reason is assigned.</p> <p>A deed to one, habendum to several, is void on account ,af the uncertainty whó should take first in remainder. Hob. 313. But where the several persons are mentioned successively, that being certain, it is good. Cro. Jac. 564. It is a general rule, that the party’s intent should be supported. Hob. 277. 2 Bac. Abr. 660.</p> <p>From these cases it appears, that the rule contended for does not hold unless there is an absolute uncertainty; but where there are additional circumstances to denote tire party’s intent that the habendum shall stand, though repugnant to the premises, unless the estate limited by the habendum is contrary to law, and could in no case prevail, which js not the case here. There are many additional circumstances to denote the party’s intent, and to remove the uncertainty; and if we can find on the whole, that the words were intended to be qualified and restrained, the Court will so adjudge.</p> <p>This deed of lease and release from Alex. Hamilton make but one conveyance. If we view it in the lease, it is said to be made to enable Vachel Denton and wife to take a grant to them and their heirs, in such manner, and under such restrictions, and to such uses, intents and fur« poses, as shall be thereby declared. In the deed these uses -are particularly mentioned, and the words superadded, to no other use, intent or purpose whatsoever. Again, the deed of Alexander Hamilton refers to the other, and is governed by it. It recites that deed, the purpose for which it was made. This reference, then is to be regarded; and if it is uncertain, even on this deed, what estate was intended to be conveyed, it shall be reduced to a certainty by reference. ' Certum est quod certum reddi potest. 2 Baa. Abr. 663, 664. Co. Lift. 45. b. 1 Atk. 8.</p> <p>This deed is to be considered as a precedent, and the ill consequences of vitiating a deed for so small an error-ought to be considered in this country, where magistrates and country gentlemen so frequently assist their poorer neighbours in drawing deeds.</p> <p>Third point. These deeds are to be considered as sepa rate instruments making one settlement or conveyance, and in the construction of them a view is to be taken of the whole. It would be a most absurd construction to separate such deeds, and consider them as quite distinct from others connected with them. 2 Bac. Abr. 496. Iiob 275. Grounds and Rudiments, 23. This part of the deed refemng to the other, must, under such construction, be rejected as idle, and have no force. So must the covenan t of Hamilton never be complied with, which is contrary to y very rule of construction, which should give operation to all parts of a deed. 1 Burr. 286. 2 Burr. 709, 710, 71 i. 713.</p> <p>The deed of lease is made only by Vachel Denton. The deed from Denton and wife has the words grant, bargain, sell, alien, release, enfeoff, and confirm; also the words reversion, reversions, remainder and remainders, &c. It is then to be considered whether there are any particular cir« eumstances necessary to constitute a bargain and sale, which are not to be found in this deed. A bargain and sale is a contract in consideration of money passing an estate in lands by deed indented and enrolled. 1 Bac. Abr. 273. 2 Inst. 672. This conveyance is answerable to every part of this definition. At common law, if a man bought lands and paid money for them, yet no property in the lands was transferred, because no solemnity was used to denote the alteration. Gilb. Uses, 2. But in equity a use was transferred ; and as equity regarded the intention of the parties, a use might be raised without any writing. Gilb. Uses, 87. Then came the statute of uses, which transferred the possession to the use, so that, whenever a use was raised at common law, the statute transferred the possession to it; and as a use might be raised by words, the statute transferring the possession had this 111 effect, that lands might pass by bare words only, which was held to be inconvenient. And it was to prevent this Inconvenience, that the statute 27 Hen. VIII. c. 16. of enrolments, was made. Gilb. 88. 2 Inst. 672. Before the .statute, the consideration of this deed would have raised a use; if so, that is all that is requisite. 2 Inst. 672. Moor, 378. 1 Bac. Abr. 277.</p> <p>Where a deed can, in any manner, operate, the Court will support it. Cro. Jac. 127. pi. 17. 564. Co. Litt. 183. b. 2 Bac. Abr. 666. Co. Litt. 147. 2 Bac. Abr. 661. Garth. 524. Ilaxvk. Abr. Co. Litt. 83. or 183, b. Where a deed may operate several ways, the party has an election. 2 Co. 24. Baldwin's case. 1 Vent. 137. 1 Mod. ITS. Dyer, 319. b. pi. 16. Cro. JSliz. 163. pi. 3. 2 Co. 35. Moor, 496. 1 Bac. Abr. 276. Vin. tit. Deeds, 405. pi. 2. 3 Leon. 16. pi. 39.</p> <p>If, then, this deed can have any operation, the Court will support it, and it may operate as a bargain and sale-No particular words are necessary to make a bargain and sale. 4Leon. 110. 2 Inst. 672. Gilb. Uses, 88. 287. 8 Rep. 94. Here there is a plain intent to pass the land. If the conveyance then can in any manner operate to effectuate this intent, the law will support it. There are the express words bargain and sell, which denote the party’s intent. There is nothing incident to the making of a bargain and sale, but what is to be found in this conveyance; and if the Court will turn a deed to make it operate one way, though it is apparent the intent of the parties was that it should operate another, yet that it should operate after some manner, is the principal intention; a fortiori will it be so here, where the deed may operate in the same manner the party intended it, by making use of the terms bargain and sell. Hawk. Abr. Co. Lift. 83. Suppose the possession to have been transferred by the lease from V. Den-ton, yet the release will operate as a bargain and sale of the reversion, and a reversion may be bargained and sold. Goldb. 272. pi. 381. Faugh. 51. Lilly’s Com. 17. 273. 2-Inst. 672. 2 Cro. 210. Ploxv. 433. Broxvnl. 298. Gilb. Uses, 286. Cro. Jac. 604. 8 Co. 172.</p> <p>Further: If we consider this deed under the act of Assembly, take all the words of it collectively, and give the. act a construction agreeable to its spirit and meaning, even if it was to be considered as a grant or release of the reversion, it may be supported, in construing acts, we are to consider what was the mischief before the statute, and what the remedy intended. 5 Bac. Abr. 647. The mischief before this act was, that women could not convey their lands but by fine, which was a tedious and expensive process, and therefore the Legislature had in view to empower them to do it by deed, under the restrictions mentioned in the act. The particular deed made' use of for this purpose was not so much the object in contemplation, as the enabling them to do it; for the reason of enabling them to do it by one mode of conveyance would apply as, forcibly to enable them to do it by another. It is plain, from the meaning of this act, that the Legislature intended, not to deprive femes coverts from making conveyances, but to enable them to do it under particular restrictions; and that by using the terms bargainor, grantor, or donor, they did not mean to restrict them to the conveyance of bargain and sale, for those words then must have been nonsensical; but all that was meant was, where a feme covert granted, sold, or gave lands, whatever conveyance passed the lands in consequence of such contract, it should be enrolled. Acts of Assembly should have a reasonable construction; but what reason can be assigned why the Legislature should give this privilege by one kind of conveyance more than another. Would one operate more to the prejudice of the feme than another? They would have the same effect; therefore the Legislature was willing she should .grant or give, but then under the regulations mentioned.</p> <p>For rules of construction of statutes, see 5 Bac. Abr. 643. One branch of a statute may be expounded by another, where the words are obscure. 5 Bac. Abr. 645. An act ought to be so construed, that no word may be insignificant. Id. Where the proviso is contrary to the purview, the proviso shall stand, it speaking the intention of the Legislatures. Fitzg. 195. 5 Bac. Abr. 646. Here the proviso mentions grantor, which shews was meant, all things that operated by way of grant. An act lately made shall be taken within the equity of one made long since. 4 Rep, 4. Statutes which have relation to the same subject must be taken as one system, and construed consistently. 5 Bac. Abr. 646. A statute ought t,o be construed so as best to answer the intent of the makers; for qui hccret in litera hceret in cortice. 5 Bac. Abr. 647. What is within the intent is within the act. 5 Bac. Abr. 648. How statutes shall be expounded by equity. 5 Bac. 649, One half of the conveyances in the country are made by femes coverts in this manner, and the deeds m common recoveries are generally drawn so.</p> <p>Contended, that the deeds of lease and release from Hamilton to Denton and wife, were conveyances at common law, and of course must be construed strictly according to the rules of law which apply to common law conveyances.</p> <p>That it was a rule, where the habendum is repugnant to the premises, it shall be void. That the habendum cannot lessen, but may enlarge the estate in the premises. 2 Bl. 298. Dy. 155. That the deed of release cannot operate as a bargain and sale. That it was the intent of the parties, that the estate should pass by lease and release; and that, if it operates to pass any estate by way of lease and release, though less than was intended, it shall not operate in a mariner different from what the parties intended. That where an act of Parliament is in the affirmative, it implies a negative to prevent any further alteration of the common law than is affirmed by the words of the statute. That to alter or innovate upon the settled rules of law for the determination of landed property, is a most dangerous removal of land-marks.</p> <p>The objection to the deeds from Vachel Denton and wife is, that they cannot operate as a bargain and sale as to Mrs. Denton, and she being restricted by the act of Assembly to that species of conveyance, it must operate in that manner, or it can have no operation at all.</p> <p>This objection does not arise from any formality in the conveyance, for it has every requisite to constitute a bargain and sale, and is drawn agreeably to the form of a bargain and sale in every respect, and there is no doubt but that, if it had stood alone, without any release, it would have been good..</p>

This case, brought by an appeal from Washington county court, is an action of covenant, instituted there by the appellant against the appellee.

EJECTMENT for part of a tract of land called Judith’s Garden, lying in Talbot County.

EJECTMENT for a tract of land called Isaac’s Chance„ in ^ueen Anne’s County, containing 100 acres. The de» fendant took defence for Erickson’s Chance, which tract of land included the whole of Isaac’s Chance.

The bill in this case was filed by the appellants, claiming to be among the heirs of one Helen Bruce. It alleged that the said Helen Bruce was dead, and at the time of her death was seized of a large real estate, of which she died intestate, although she made a will, and it asked a decree for the sale thereof. The bill was filed against others who were heirs, and some of whom claimed the land under the will of said Helen.

THE bill in this case, filed on the 13th of December, 1766, stated, that a certain William Deacon by his will did devise, amongst other things, as follows, viz. “ I give u to my nephew William Deacon, of Portsmouth, all the “ rest of my estate both real and personal, with all the plate that is in the house at my death, to him and his “ heirs for ever, reserving to Mrs. Mary Johnson, during “ her natural life, the use of what land I have in the tract “ of land called The…

Motion to dismiss the appeal. 2nd April 1836, the estate of William Ringgold was sold, in virtue of a decree of the chancery court, for the payment of his debts, and William Emory became the purchaser. The sale was ratified and confirmed 20th June. The land was sold for $23.52 per acre, and contained, according to the report of the trustee, five hundred and sixty-six acres.

The statement of this case, prepared by the counsel for the appellant, is so full and correct, as to render any addition or alteration unnecessary. The questions presented by this appeal arose upon the following case: James Jones was an applicant for the benefit of the insolvent laws of Maryland, at four several periods, to wit: in 1836, 1846, 1848, and in 1850.

EJECTMENT for part of a tract of land called Chandler's Addition, lying in Kent County.' At the trial of this cause at the Kent Assises, held in September, 1769, two bills of exceptions were taken, ' 1st. The plaintiff in making out his title to the land mentioned in the declaration, produced a deed for the said land from Thomas Chandler to John Redding, the ancestor of the plaintiff’s lessor, under whom he claims, and offered to give in evidence, and prove to the Court and…

THIS was a petition for freedom. The petitioners claimed their freedom as being descended from a free white woman, named Eleanor, commonly called Irish Nell, who had been brought into Maryland, by Lord Baltimore, as a domestic servant, previous to the year 1681.

This case has already (a part of it,) been before the Court of Appeals, and so much of it will be found reported in 5 Gill, 287. The bill was fded by the appellant Young, against the defendant, for an execution of an agreement for a partition of coal owned by them, in common, and an account of the coal already taken out.

THIS was an action on the case for special damage, sustained by the plaintiff, from the neglect of the defendant, as collector of Pocomoke District, in not giving a certificate, which by the duty of his office, he was obliged to do, by the act of 4 Geo. III. c. 15. passed the 15th November.) 1763. The writ issued the 27th of May, 1768, There were two counts in the declaration.

THIS, was an action of replevin brought to recover negroes. Pleas, non cepit property, and the act of limitation. To the last plea, replication that the plaintiff was beyond sea; and issue joined.

THIS was an action of account against the defendant, to account for the profits of certain lands and tenements, during the time their testator was the guardian and bailiff of the plaintiff.

On the first day of November 1808, John McDonald 'conveyed lands in Allegany county to a certain Henry Dangerfield, in trust to sell said land, and with the proceeds of sale, pay a debt of $453.85, then due from said McDonald to William McGuire, with interest thereon from 7th January 1808, if the same remained unpaid.

THIS was an appeal from the Prerogative Court from, the decree of the Commissary General. It appears from the libel and proceedings in the Prerogative Court, that Col. Jeremiah Belt, on the 15th of October, 1750, made a writing purporting to be his last will, whereby he bequeathed the greatest part of his real and personal estate to his then wife, and after her death to Jeremiah and Tobias Belt, and Joseph Sprig Belt.

<p>EJECTMENT for a tract of land called Smithfeld, lying in Dorchester County.</p> <p>At the trial of this cause, the plaintiff, in making out his title, produced to the Court, and offered to read in evidence, a writing purporting to be a copy of the will of William Smith, made in the year 1709, together with letters testamentary on the said will, under the hand and seal of Roger Woolford, formerly Deputy Commissary of Dorchester County, which were annexed to the said copy of the will. And also proved, that diligent search had been made in the Commissary General’s office for probate of wills in this Province, for the original will, and also for the Copy thereof, but that nothing could be found except an inventory of the estate of said William Smith, dated the 8th of October, 1711, in which his wife was styled executrix. And the plaintiff also produced a witness, to prove that the name of Roger Woolford, subscribed to the said letters testamentary, and the copy aforesaid, was, in their belief, the hand-writing of the said Roger Woolford, who, it was admitted, was Deputy Commissary of Dorchester County, at the time when the said letters bear date, and did insist that the same was proper evidence to go to the Jury, to establish the said will, so as to transfer the land in question to the devisee therein mentioned. The defendant objected to the evidence.</p> <p>In the infancy of this Province, there were no testamentary laws ; probates now are taken only under the laws of the Province; this will, therefore, must stand or fall by the acts of Assembly. By the old act of 1704, for taking probates of wills, the Commissary General is made the sole judge in testamentary matters. All wills, though proved before the Deputy Commissary, were always transmitted to the Commissary General’s office, to be recorded. This will should have been so transmitted to be recorded. A record then, can only be proved by itself, or by an attested copy from the proper officer. If this paper were admitted as evidence, in every instance a paper having the signature of the Deputy Commissary would be admitted in evidence. They should have proved that a will once existed, and then have produced a copy of it from the records under seal; instead of that, they presuppose an original will, and then that this is a true copy of it. In the year 1707, an act was passed, to aid defects of this nature, where the originals by accident had been burnt while in the keeping of the Deputy Commissary, by admitting copies to be recorded, and to have the same effect as originals.</p> <p>By our act of Assembly, the jurisdiction of the Chancery and Ecclesiastical Courts, are blended and united in this Province. In England, the copy of a probate of a will is good evidence where the will itself is of chattels, for there the probate is an original, taken by authority, and of a public nature ; aliter where the will is of things in the realty, because there the Ecclesiastical Courts have no authority to take probates; such probate therefore, is not evidence. 12 Fin. Abr. 100. pi. 30. 33. 101. pi. 40. 102. pi. 52, 49. Skinner’s Reps 584. 43 h 1 Raym. 154.. 744. 3 Salk-.154. Comb. 248. 337. Gilb. Evid. 72, 73. 1 Raym. 252, 263. 4 Burn. Eccles. Law, 181, 182, 183. Our act of Assembly of 1715, gives the Commissary authority to take probates of wills relating to lands, therefore it is agreeable to the reason of the cases cited, that the probate or the copy of the will, under the hand and se al of the Deputy Commissary, (who is the proper officer,) should be received in evidence. For the probate is nothing- more than a copy attested by the proper officer. Fid. Wood's Inst. 341. (or 325. last edition.) Gilb. Evid. 72, 73. which say, that the probate of a will is a copy of the original, delivered to the executor under the seal of the ordinary, the will itself being exhibited in the office belonging to the Ecclesiastical Court, to be there kept by the register. 4 B. E. L. 18 Í. The reason why probates in the Ecclesiastical Court in England, are not evidence of a devise of lands, is because that Court has no power to take such probate; but in this Province, the Commissary or his Deputy, has such power. Ergo, such a probate must be evidence. If it were not, great inconvenience would arise, for after the party had done all that the law required of him, by proving the will, and leaving the original in the custody of the proper officer, the Deputy Commissary might lose the original will, or neglect to transmit it, when, if the rule contended for,, should prevail, the party would be left without remedy. It cannot be expected that after the lapse of seventy years, that the plaintiff should be able to prove the existence of the original will in any other manner, the witnesses being-dead. The probate of a will is good evidence in an ejectment, where the original is lost, and so is the register’s book. Per Holt, 1 Raym. 751. 12 Vin. Abr. Evid. 98. pL 9. 1 Stra. 412, 413. Skinner, 174. A copy of a will which has been lost, is good evidence. Allen, 54, 55. Vid. Swinburn, 450, 451. T. Jones, 146. So if the will be lost, it may be proved by witnesses. Swinb. 451. 1 Ca. Eq, Abr. 402. So if it be burnt or tom to pieces, it may be proved by witnesses. 8 Vin. Abr. tit. Devise, 119, 120. £ Fern, 441. 1 Ca. Eq. Abr. 402. The copy of a will of lands, under the seal of the ordinary, is not evidence, but if you prove the hand of the officer who made the copy, it js good evidence. Clayton's Rep. 90. 57. Where a record is lost, it may be proved by parol evidence to the Jury. 1 Vent. 257. A record which has been burnt, may be proved by other evidence, Hard. 323. In this case there was an inventory returned, in which the wife is styled executrix, which could not be, unless there had been a will. The act of Assembly does not direct the Commissary General to record wills, but to take the probate of wills, though it concern lands. Act 1715, c. 39. s. 2. By s. 29. the Deputy Commissary is empowered to take probate.</p> <p>This is a case of great importance; for as the original wills are left in the hands of the Commissary, accidents may often happen to them from neglect, or some unavoidable casualties in the transmitting of them to the Commissary General, when proved before the Deputy Commissary. The act of 1707, c. 9. shews, that by the ordinary course of transmitting wills, they are subject to casualties. It is a matter of importance in the settlement of estates; for if the will happens to be lost, it will be contended the testator died intestate, and the property would not pass agreeably to the will of the testator. Where there is jurisdiction, the law gives credit to the acts of the officer, and admits his probate as evidence. Skinner, 431. 583, 584. 174. Gilb., Evid. 24. The act of 1704, c. 20. gives power to the Deputy Commissary to take probates, although it concerns lands, which removes from this case the objection made to probates out of the Ecclesiastical Court in England. We propose to give the best evidence the nature of the case admits of, and more cannot be required, Gilb. Evid. 4. 16. We shew that search has been made, and that no original will is to be found, and then we produce the probate, and make it appear that it was granted by the Deputy Com«missary.</p> <p>The practice of Courts is evidence of the law» It has always been the practice in this Province to produce the copy of a will from the record. The inconvenience sup» posed has never happened; for it has never been necessaiy in this Province to prove a will by any other method than by producing the original will, or an authentic copy under seal from the Deputy Commissary’s office. The plaintiff’s counsel, in this instance, propose to prove the hand-writing of the Deputy Commissary; but if this doctrine is once established, we shall next have old copies offered in evidence, without any such proof of the hand-writing of the officer. Originally in England there was a contest between the Ecclesiastical Courts and the Courts of Common .Law about the taking of probates of wills. Where the will eoncerned both real and personal property, the Common law Courts granted prohibitions absolutely against the Ecclesiastical Court taking any probate. Afterwards prohibitions quoad the real estate were granted, but at length the Ecclesiastical Courts were allowed to take probate of wills concerning both real and personal property, but the probate concerning the lands was rejected by the Common Law Courts as being no evidence. About the time that the law was thus settled in England, our first acts of Assembly upon the subject were made, and the same construction has ever prevailed here, that under the words of the ■act, the Commissary should give probate as it related to personal property, although the will contained a disposition of real estate. If this probate be evidence, though in An-gland such probate would not be evidence as to the real estate, such doctrine would take away the power of juries, who are the proper judges upon the issue devisavit vel non» There would then be no need of producing evidence as to the execution of the will, and thereby the Commissary General would have a power almost absolute respecting wills, and such a power as was never intended by the act of Assembly. No inconvenience would follow from this doctrine ' contended for; for wilfe when lost might be established t&. a Court of Chancery, and the heir at law, on proof of the loss, would be compelled to convey the estates as the will had directed. But, on the other hand, fraud might be introduced by producing old copies as evidence.</p> <p>Whether a will was made is a matter of fact; but the construction of a will is a matter of law; therefore the first is determinable by a Jury, the latter by the Court. The legality of evidence is a question of law; of the sufficiency of that evidence, the Jurors are the sole judges; therefore, if it appear that the proposed evidence in this case be legal, the sufficiency of it is immaterial, for of that the Jury are the sole judges. The objection to it is grounded on the rule, that the best evidence the nature of the thing will admit of, should be produced. They say a copy from the record should be produced; and that being better evidence than the copy certified by the Deputy Commissary, the latter should not be admitted. When we speak of the best evidence, we should agree in our explanation of it. The farther evidence is removed from the fact, the weaker it is in legal idea; and the more immediate relation it has to the fact, the better it is. A copy, therefore, from a copy of a will, is not so good evidence as a copy from the original will; therefore the evidence now contended for is, according to the rule, better evidence than that which it is contended ought to have been produced below ; for the record is a copy from the will, and the certified copy from the record would be a copy of a copy. It was, therefore, formerly debated, whether a copy from the record should be admitted as evidence, as the party might procure an immediate copy from the will itself, tested by the proper officer. In England there are two ways of proving a will to have been executed as to personal estate. 1st. By producing a probate of the will* 2d. By producing a copy from the record. The probate of a will is nothing more than a copy of it certified by the proper officer. Wood’s Inst. 325. 341. Gilb. Evid. 72, 73. Those probates are made in England by the ordinary, or by his surrogate. The ordinary is so called from his having the common ordinary jurisdiction, and is generally the bishop. The surrogate, as the name implies, derived, from surrogatus, is his deputy. These answer to our Commissary General and his deputy ; and to prevent disputes, the law particularly empowers the Deputy Commissary to take probates of wills. Where a law gives power to an officer, it gives credit to his acts. Gilb. Evid. 27, 72, 73. Skinner, 431. Wood’s Inst. 325. 341. 1 Raym. 262. 154. Probates in England are not evidence of a will respecting land, because there is no authority to take them; ergo, if there was authority, they would be good evidence. Here the Deputy Commissary had authority. Suppose a will was proved before the Commissary General, would not his probate have as much effect as a copy from his book, with a certificate that he had recorded it, and that the writing produced was a true copy ? for any immediate copy certified by him would be entitled to as much credit as the copy of a copy. 2d. There is no law obliging a Commissary to record wills; but it being the practice of the office, a copy of the record is admitted as evidence. It is just as much the practice of the Commissary to grant probates of wills, therefore they are evidence. It may be said, that, if the probate is conclusive as to real estates, it would prevent an inquiry into frauds on the issue devisavit vel non. But a reasonable effect may be given to this probate, and yet the matter may be left for trial, by construing the probate presumptive evidence as to the lands. By the laws of England, neither the probate of a will, nor a copy from the record of the will in the Register’s book, is any evidence in ejectment, but the original will must be produced. But a copy from the record in the Register’s book is evidence of a will respecting personal estate, because the Court has a jurisdiction respecting it. A copy from the Commissary’s or Register’s book, it is admitted, is evidence here of a devise of lands, because an act of Assembly gives him a power to take such probates; for if we proceed strictly without regard to this act, a copy from the record could, not be evidence in these cases. When a copy from the record is produced, it is presumptive evidence in those cases, but the other party may be, admitted to prove fraud. The probate of a will in England, and a copy from the Register’s book, are in equal degree in point of evidence. So here we contend a copy from the record and the probate are in equal degree, the copy from the record being only presumptive evidence, and so ought a probate of the will to be. It will be more reasonable to give reasonable efficacy to the officer’s certificate, than to construe his act as a mere nullity. The Commissary does not derive his power respecting wills of personal estate from an act of Assembly: the line of his duty is not entirely marked out by that law; but where the act has not made provision, he is to proceed according to the laws of England. By the law of England, as ordinary, he is sole judge in testamentary matters respecting personal property, and having a judicial power, when he has executed his act is concluí sive; therefore the probate in these instances is conclusive evidence. By the law of England he has no judicial power respecting a devise of lands. The Commissary has no judicial power given him by our act of Assembly.</p> <p>The rule of evidence is to oblige parties to produce the best in their power, but not to compel them to perform impossibilities. When it is said, then, that a record must be produced, it must mean if the record be in existence; for no rule of law can be fraught with so much injustice and absurdity as to command what cannot be done. It is said a copy from the record must be produced ; but'that must suppose the record to be in existence, for if it be lost, then the next best evidence is admissible. 1 Raynn 731. 1 Stra. 412,413. Allen, 54, 53. T. Jones, 146. Vaugh.77. Vin. EAd, 284. 1 Salk. 285. 2 Bac. 307, 308. Corny ns, 531. 2 Stra. 1109. 2 Ray. 1292. Skin. 15. Gilb. Evid. 56. 65. The records are not in the party’s keeping, they are subject to many accidents ; and unless evidence of this nature be admitted, it will be of great injury and ruin to the Inhabitants. For instance, if a man has the copy of a patent, and the original should not be found on the records of the land-office, it might with equal propriety be contended it was not evidence. And yet numbers of patents were granted in former times, which do not appear on record, and some of the land-office books are lost. Suppose a copy was produced purporting to be a true copy from the records, certified by the proper officer, and yet the will was not to be found on record. It is admitted every day, for it is to be presumed there was such a will, otherwise a copy from the record could not have been procured. So here. And the evidence offered too is drawn nearer the source, for in the instance put it would have only been a copy of a copy. But this is an immediate copy from the original will itself.</p>

This is an appeal from Frederick county court, in an action of assumpsit. The action was brought by appellant, to recover $291.58|-. The declaration contains three counts : 1st, articles properly chargeable in account, 2nd, for good, wares and merchandizes, 3rd, upon an account stated. Pleas. 1st, non-assumpsit as to the account, except $226.50. 2nd, plea of tender of that sum.

<p>MOTION was made to quash a fieri facias, on bringing the money into Court.</p> <p>cited 2 Ch. Ca. 183. Bro. Elegit, pi. 3.</p> <p>The Court, on this point, ordered the matter to be postponed, that it might be heard in a fuller Court, they not being inclined to settle a point of practice when only two magistrates were present.</p> <p>It was then moved to quash the execution for the insufficiency of the sheriff’s return, and the imperfections in. the return or inquest of the appraisers.</p> <p>Jenings. This fieri facias is executed under the act of 1716, c. 16. and therefore an inquest was necessary to ascertain the value of the chattels, as it is on an elcgit by West. 2. c. 18. it is not expressly mentioned to be necessary in the statute, but it has been held to be so in the construction of the statute ; a fortiori it is necessary in the present instance, it being directed by the act of Assembly. 2 Inst. 396. 4 Co. 74. Palmer’s case.</p> <p>As an inquest is necessary, it ought to be certain to every intent. Heath’s Maxims, 3. That it is uncertain and imperfect for the following reasons:</p> <p>1. It is not set forth by whom the appraisers were chosen, and perhaps they might all have been appointed by the sheriff, without any refusal or neglect of the parties to nominate.</p> <p>2. It is not set forth that the appraisers were summoned, or for what purpose. 2 Hawk. 253. s. 119. 123.</p> <p>3. It does not appear that the defendant had any, or what notice. 1 Bar. Not. 207. 210. 213, 214. 218. 221.</p> <p>4. It is not alleged the appraisers were sworn for this purpose, or that they were sworn at all. Cro. Jac. 119. 2 Hawk. 153. s. 126.</p> <p>5. It is not set forth at what County or where the appraisement was made. Dyer, 208.</p> <p>6. It does not appear the appraisers were men of the County. 2 Hawk. 153. s. 126.</p> <p>It was further objected, that this proceeding under the act of Assembly was irregular, it not appearing that the defendant was requested to shew his personal estate, or that he agreed to do it. On which point it was observed, that at the common law the sheriff could not deliver the goods to the creditor, but was obliged to sell them and pay him the money; that the act of Assembly was made for the benefit of debtors, and therefore they might renounce any advantage under it, according to the rule, “ Spuilibet potest renunciare jure pro se introducto.” Therefore if the debtor refused to shew his effects, the creditor could only proceed at common law. That in the present case it did not appear the debtor complied with the terms in the act of Assembly, and therefore the creditor could only execute the. fieri facias at common law.</p> <p>contended, that the plaintiff had a right to amend his return, and that, although the proceedings might appear defective as they stood, yet they might be rectified by .the amendment. He also stated, that two of the negroes which had been taken under the fieri facias had been sold, and contended that the act of Assembly vested the property immediately on the appraisement. That the cases of lands were distinguishable from negroes,who might die.</p> <p>observed, that though the sheriff had a right to amend his return, he could not amend the act of the appraisers; that these were acting under oath, and were punishable by indictment for a non-observance of their oath, and therefore the sheriff had no power to add to or dinnnish what they had certified. That the return of the sheriff could not be evidence against the appraisers, for thereby the security of the debtor for their acting uprightly would be destroyed. The appraisers could not be indicted for perjury on the sheriff’s return. That if the sheriff could supply one circumstance by his return, he might supply the total defect of an inquisition. That if the sale vested the property, the plaintiff might, where there was a low valuation by the appraisers, procure a friend to purchase them, and then set up the argument of their being sold. The execution is good at common law, though there be no return; but the sheriff is obliged to make a return, if called upon so to do. He ought to sell the property, or return that they remained in his hands for want of buyers. If he had sold the goods, the surplus would have been paid over to the defendant; but if the proceeding contended for were established, by a low valuation the plaintiff might receive double his debt.</p>

EJECTMENT for a tract of land called NutweiPs Branch, lying in Charles County. Held: that if a marl uses words of limitation in some devises properly, and not in others, it is a presumption he intended different devises. 2 Wils. 80. Kirby v. Holmes. In this will there, are proper words of limitation added to the other devises; if he thought them necessary in the one, why not in the other?

This case is as follows: Robert Gilmor held two mortgages against Brien, the one dated 22nd day of October 184], for various sums and liabilities, amounting in the aggregate to $114,832.82. The other dated 8th June 1842, for debts and liabilities amounting to $198,495.73.

AprEAL from Somerset county court. The appellee sued in trover, the appellant, to recover the value of a slave, which was conveyed to the appellee by a certain Kennedy, the bill of sale bearing date 14th May 1849. The bill of sale has not the affidavit of the grantee, required by the act of 1846, ch. 37. On the 28th August 1849, Kennedy applied for the benefit of the insolvent law.

EJECTMENT for three tracts of land called Padget, Lockeden, and Ford’s Folly, all lying in Anne Arundel County.

<p>This is an appeal by the defendants, from a decree of ^Baltimore county court, sitting as a court of equity, and which ¡directs a sale of the property, (lots No. 2 and 4,) therein ¡mentioned. Upon these lots the complainant claimed to have a lien to the amount of his demand against the husband of £he owner of the land,</p> <p>The bill \yas filed 28th November 1845, by the appellee, and sets forth the death of one Jacob Smith, in 1818, leaving .a widow and three children, the complainant, a daughter Margaret, who married Charles Klassen, and Mary, who married George W. Hoffman. The father, it is stated, devised to each of his children, a lot of ground in the city of Baltimore, and to them as tenants, in common the rest of his ¡estate, real and personal, in a part of which he gave his widow a life estate.</p> <p>George W. Hoffman, the husband of one of the children, (Mary,) the bill charges, was a sugar-refiner, in Baltimore, and constantly was in need of loans and endorsement of potes, and applied to complainant to aid him in these ways. Complainant agreed to his request, provided he was indemnified, and that the property of the wife was put out of the reach of her husband and his creditors, by a conveyance in trust for her separate use during life, remainder to her .children.</p> <p>This vyas agreed to, and in execution of the agreement, a deed was, on the 27th May 1824, executed by Hoffman and wife to the complainant, whereby they conveyed to complainant the lot which her father devised to her in severalty, and also her undivided interest as aforesaid, in trust, to authorize the complainant to sell when necessary, any part of the property to indemnify himself; and the residue for the separate use of the wife, (Mary Hoffman,) for her life, with remainder pver to her children living at her death.</p> <p>Jt is charged that the residue of the estate, remained undivided, during the life of the widow of testator, and after her death in January 1826, commissioners were named by the appellee and his sisters, and by them a conventional partition was made, and deeds were executed to pass the title in severalty. The bill then sets forth as part of the terms of said partition, that the two daughters, Mrs. Hoffman and Mrs. Klassen, should exchange with each other, the lots devised to them in severalty. Mrs. K. receiving $650, for equality of partition. The deed from Hoffman and wife, was to the complainant who paid Mrs. Klassen the $650.</p> <p>In November 1837, an account was stated between complainant and Hoffman, and the latter was then indebted to the former $2,880. The complainant then declined further aid, and Hoffman failed.</p> <p>The complainant was unwilling to sell the trust property, but wanted some evidence of, and security for his claim, by specific lien on a part of the property. Hoffman and wife executed to complainant their joint note in July 1836, payble without interest, five years after date. During the life of his sister, the complainant was unwilling to lessen the value of her life income in the property, by a sale of any part of it. Hoffman died in 1836, and his wife in September 1845, leaving three children, (the defendants,) the last named, under twenty-one years of age. The complainant wishes now to close the trust by a sale of what will he sufficient to pay his claim, and a transfer of the residue to the defendants.</p> <p>Prayer for a sale of the fifty-five feet on Pennsylvania Avenue, which includes the land conveyed by Mrs. Klassen to Mrs. Hoffman, in exchange for the lot devised to Mrs. Klassen, and for further general relief.</p> <p>Mary Ann Hoffman, one of the daughters of Mrs. Hoffman, died, and her interest descended to her two sisters. Another of the defendants, (Emily Jane Hoffman,) answered, therein admitting the devises as stated, the execution, both previous and subsequent to the deed of 1824, of notes endorsed by the complainant for her father’s use, but alleges that every note made “by reason of the condition that such deed should be executed,” has been paid, and the lien on the property, thereby discharged. Admits the partition, and pleads the statute of limitations-.</p> <p>The other defendant being an infant, answers by guardian, she never heard of the deed of trust until after the death of her mother; insists that the claim of the complainant is not secured by that deed, and relies on limitations.</p> <p>Before the court below acted upon the case, the following issues were sent to be tzded by a jury on the law side of Baltimore county court;</p> <p>1st. Whether the complainant became liable for the payment of the notes mentioned in exhibit DS., (being all the notes which he claimed to have paid,) because of the supposed security given by the deed of trust of May 1824.</p> <p>2nd. Or whether he became so responsible and liable because of his confidence in the integrity and solvency of Hoffman, without reference to the deed ?</p> <p>The verdict of the jury was, that the complainant became responsible because of the security given by the deed, and not because of his confidence in the integrity and solvency of Hoffman, without reference to the deed.</p> <p>A decree was passed, 11th July 1846, to the effect, that unless the defendants, before the 20th July 1848, paid to the complainant $2,880, with interest' from 2nd July 1843, and costs, lot No. 4, mentioned in the proceedings, should be sold, and if insufficient to pay the debt, that lot No. 3 should be sold. That on payment of the debt, the property or balance of proceeds of sale left, should vest absolutely in the defendants, free from the trust created by the deed of May 1824. The court (C. J. Archer, J. Purviance and J. Le Grand,) in their opinion filed, state, that they see no reason to object to the finding of the jury upon the issues. That the parties could znake a conventional partitiozz, binding on those in remainder. 1 Story's Comm., vol. 1, p. 730, 4th ed. And that the partition made in 1826, is to be taken in subordination to the deed of May 1824. That upon any other conclusion, the complainants’ security would be gone ; and a just claim thereby defeated.</p> <p>From this decree, the present appeal is taken.</p>

<p>The acceptance of a security of a higher dignity, merges and extinguishes the original cause of action. But if one partner, who has executed in the name of the firm, a single bill, for the amount of a debt which the firm owes, afterwards gives a promissory note in the name of the firm, thereupon a recovery may be had thereon against the firm. The partnership debt, which was extinguished by the acceptance of the single bill) is thereby revived.</p>

Upon appeal from Baltimore county court. The appellant was the endorsee of a promissory note, executed by the appellee, and regularly endorsed, and this suit was instituted thereon. The defendant in the court below pleaded non-assumpsit, and issue was joined on that plea.

<p>Appeal from Allegany county court.</p> <p>This suit was brought upon three promissory notes, the first dated 14th March 1846, drawn by Phineas Janney, to the order of Hunter, defendant, payable at the Western Bank of Baltimore, for $1,300, six months after date, and by Hunter endorsed to the plaintiffs; the second dated 7th December 1846, drawn by Janney, and payable, sixty days after date, to the order of Hunter, at Cumberland Bank of Allegany; and the last dated the 7th December 1846, drawn by Janney, payable to, and endorsed by Hunter, payable four months after date, at Cumberland Bank of Allegany.</p> <p>The declaration was upon these several notes. Plea, non assumpsit and issue, and verdict for plaintiffs.</p> <p>The points arising upon the several exceptions, are presented by the counsel in the argument.</p>

<p>THIS was an appeal from the Prerogative Court. By the proceedings transmitted it appears that, in April, 1772, letters of administration were granted to Norman Bruce, Upon the personal estate of Theodosia Key, of Saint Mary’s County, deceased, and that in May, 1772, George Watts, and certain other persons claiming to be devisees under tbe will ■ of the said Theodosia Key, by John Hall, their procurator, exhibited into the Prerogative Court (the Commissary-General and Judge for probate of wills, &c.) their libel against the said Norman Bruce, stating that the said Theodosia, the widow of Philip Key, after the death of her husband, being without any relation by blood, in the Province or elsewhere to their knowledge, and being desirous of giving and disposing of her personal estate to the children and grandchildren of her deceased husband, did,. *n ^ie year 1764, request her son-in-law, Edmund Key, Esq. late Attorney-General, to draw her will, which, at her desire, and according to her instructions, he accordingly did, and wrote the same altogether in his own hand, and inclosed the same in a letter directed to the said Theodosia, who received and kept the said will by her to the time of her death, the same being found amongst her papers, safe locked up ; and at many different times she declared she had made her will, and frequently produced the said will, and also related in what manner and to whom she had given her estate, and particularly the legacies, or some of them, to the libellants, Rebecca, Mary, and Susanna, grandchildren of the said Philip Key, Esq. That by the said last will and testament divers legacies were given, viz. the sum of 100/. to Francis Key, and the sum of 100/. to Thomas Key, who both died in the life-time of the testatrix ; the sum of 200/. to Susanna Gardiner Bruce, wife of Norman Bruce, the defendant, together with three negroes, all her plate, and two best suits of clothes; and that independent of said legacies, and three gold rings for mourning rings, the whole personal estate was given either specifically, or by a general residuary bequest to the libellants. That the said Norman Bruce, upon application to the prerogative office, obtained letters of administration on the estate of the said Theodosia, without the knowledge of the libellants, and before the said will was discovered. They therefore prayed the Commissary-General would take the premises into consideration, and revoke the said letters of administration, and cause new letters of administration to be granted, with the copy of the said will annexed, and that the said will might be established and confirmed.</p> <p>The will, as exhibited, was not signed by the testatrix, nor attested by any witnesses. The day and month, as well as the name of the executor, was left blank.</p> <p>appeared, upon the return of the citation which issued against him, by Thomas pfennings, his procurator, and filed his answer to the libel; admitting the facts set forth in the libel, but alleging that if his letters are revoked, other letters, with the will annexed, ought to be granted to him upon the said estate.</p> <p>The libellants replied generally to the said answer, and, by consent of the parties, a commission issued, and the depositions of witnesses were taken and returned.</p> <p>In September, 1772, Abraham Barnes and others, who, as visitors of the free-school of Saint Mary's County, by William Cooke, their procurator, filed in the Prerogative Court, their cross libel against the libellants and respondent, stating the object of the libel herein before set forth, and alleging that the said Theodosia Key, at the time of her death, left no relations of blood in this Province or elsewhere, and that the said writing, produced and lodged in the said Court, by the libellants aforesaid, as and for the last will and testament of the said Theodosia Key, was not the will of the said Theodosia, nor ever intended by her as such, nor did the said Theodosia have any will, but died Intestate, whereby the right to the personal estate of the said Theodosia, upon her death, became vested in the present libellants, as visitors of the free-school of Saint Mary’s County, and that they are entitled to have and receive the same for the use of the said school. They therefore pray that the paper lodged in Court as the will of the said Theodosia, may not be received and established as the will of the said Theodosia, but the said paper be condemned, the letters of administration, &c. be revoked, and letters be granted to the libellants, &c.</p> <p>Depositions were filed to prove the facts set forth in the libel.</p> <p>Decree, 20th October, 1772.</p>

<p>THIS was an action of trover, for a negro,. The defendant pleaded the act of limitations..</p> <p>The facts were these: Thomas Hardesty gave his daughter the negro in question. She married William Le'achv who died, leaving by his wife two sons. The mother continued a widow three years, and married Thomas Buck-master, who kept possession of the negro, two or three years. The father, Hardesty, took the negro from Buck master, who afterwards regained the possession. Hardesty made a bill of sale of it, to his grandsons. Buckmaster continued in possession, and sold it to the defendant. There was a demand and refusal, after three years had expired from the day of the sale. • The question was, whether the plaintiff was barred by the act of limitations.</p> <p>The action of trover is within the act of assembly, 171 a,, c. 23. In enumerating the actions designed to be limited, trover is mentioned in the first part of the section, but in the latter part of the section, fixing the time of the limitation, the action of trover is omitted. But actions on the case are limited to three years, and trover is an action on the case. The same omission is made in the stafc, 21 Jac. c. 16. Yet it has, notwithstanding, been determined under that statute, that the action of trover is limited to six years. Cro. Car. 246. 333. 2 Mod. 71.</p> <p>In trover the conversion is the gist of the action. Laxo of Torts. 4. 5 Bac. 258. 2 Bidst. 312. Mod.MA. Sty. 313. 1 Leon. 223. 1 Burr. 31. 2 Lev. 13. Gilb. 267. As to what act will amount to a conversion. In general where a man comes unlawfully to the possession of goods, that of itself is a conversion, as the taking of my hat from my head. 1 Sid. 264. 5 Bac. Abr. 257. So the taking of my horse, and riding it. 6 Mod. 212. Gilb. L. E. 263. So every unjustifiable meddling. Teh. 194. So also where one man assumes a right to dispose of the goods of another. 6 Mod. 212. Clayton, 112. 5 Bac. Abr. 255. Raym.125. 1 yones, 245. Cro. yac. 148.</p> <p>Therefore, though a man come lawfully to the possession ©f goods, if he afterwards use them as his own, it is a con-' version. As if one lawfully distrain beasts, and afterwards works them. Cro. yac. 148. 1 Brownl. 55. Telv. 10. 5 Bac. 256, 257, 258. Or if a man find apparel, or apparel be delivered to him to keep, and he wear it. 1 Leon. 224. Cro. Eliz. 219. 5 Bac. 258. If a man comes to the possession of goods lawfully, (as by finding,) and upon demand made, refuseth to deliver them, this is a conversion. 6 Mod. 212. Mod. 460. Cro. Eliz. 495. But if aman who came lawfully to the possession of goods, has intermeddled unlawfully therewith, it is not incumbent on the plaintiff to prove a refusal to deliver them. 5 Bac. 279, 280. Gilb. Evid. 260. 265. And where there has been an actual conversion there is no need of a demand. 1 Sid. 264. 1 Barr. 31. It will follow from these authorities, that if the plaintiff has any cause of action, it arose long before the demand and refusal, to wit, at the time of the defendant’s purchase from Buckmaster, either by the sale of Buckmaster to the defendant, which was a conversion by Buckmaster, or by the defendant using the negro as his own, which was a conversion by himself. But it may be objected that the demand and refusal gave a new cause of action, as in Cro, Car. 245. 333. Swayn v. Stevens. But to this it may be answered, that judgment was against the opinion of Croke. .It was given on the defendant’s demurrer to the plaintiff’s replication, in which he had expressly charged a conversion within time, and therefore they said they would intend that the goods came a second time to the defendant’s hands and that he converted them a second time, but there is no room for such intendment in the case in question. Vid,, W■ Jones, 252. S. C. In short, the Court thought it hard the statute should run against the plaintiff, when he could not sue with effect. See, as a full answer to this objection, the case of Oliviere v. Vernon, 6 Mod. 170. 2 Sid, 69. 115. If a demand and a refusal will at any time give anew cause of action, and take a case out of the statute, which was within it before, there never can be a bar by the statute, because a demand may be made at any time.</p> <p>The case of Montague v. Ld. Sandwich, 7 Mod. 79. may be objected. To this we answer, that it cannot be said that the use in our case was with the consent of Leach. So Clay. 57, 58. 1 Vin. 243. pi. 8. may be objected. To this it is answered that this is only the opinion of a single Judge at the Assises, and contradicts all the authorities which say there may be a conversion by unlawful user, though the defendant came lawfully by the possession of the goods. Admitting the case to be law, it does not prove that jhe demand and refusal will give a new course of action where he was barred by the statute, and should the case be argued to this purpose, it is expressly contradicted by Holt, in the case of Oliviere v. Vernon. Vid. Gilb. E. 264. This case in Clayton is cited, but no notice is there taken of the latter part of it.</p> <p>Property and conversion must be proved. The point in question is, whether the cause of action arose three years before the suit was brought. In the present case it is admitted that a demand and refusal makes a conversion, but there was no conversion before that time. Where a man is in possession of a thing under the law, he is to use the thing as the law directs, or admits, otherwise he will be a trespasser. 8 Co. 146. 5 Bac. 280. 260. It is the malfeasance which makes the conversion, and Slater made no unlawful use of the negro.</p> <p>Suppose athing to be restored upon request, 1 Vez. 278. or suppose goods pawned, one is not obliged to make the demand but when one pleases. Vin. Abr. Limitation, 116. The statute attaches from the time of the request. The case in Clayton is good authority. The same case is in 1 Vin. 243. pi. 8. Law of Trover, 6. Old Law of Evid. 177, 178.</p> <p>Where a man comes legally by the possession, a demand is necessary, otherwise a man might be punished without having done an injury. Where one comes into real property under title, trespass will not lie. Bac. Abr. Trespass, 182, 183. Cro. Eliz. 540. 2 Roll. Abr. 554. 11 Rep. 51. Hetley, 66. There is no instance of an action brought against a man who comes in by title, and in a conscientious manner.</p> <p>Suppose the negro was dead. As to the case in 6 Mod. 170. reported in Holt, 332. the statute of limitations, was hot the point in question. If it had been, Holt would have taken notice of the contrary authority in Clayton. The matter was carried further than necessary. Gilb. Evid. 260. is not very applicable to this case. The case in 7 Mod. 99. is in point for the plaintiff. Every thing should be inferred to support the action, and a consent will be presumed, to avoid the statute. Where the possession is law-, ful, the plaintiff must shew a demand and refusal before there can be a conversion. 3 Salk. -365. pi. 8. How is a purchaser to demean himself? must he be subject to be sued at all events ? This point .'.as determined in April term, 1765, in an action brought by Joshua Griffith v. Jacob Green,</p> <p>There has been a demand and refusal, within three years, therefore the act does not attach. Trover is an action founded on a tort. The defendant must have been guilty of some illegal act, to charge him with a conversion. The whole tort consists in the wrongful conversion. 1 Burr. 31. The right to purchase is lawful, consequently the user under that purchase is lawful. Suppose one steals my horse and sells it, the purchaser is not guilty of a wrong, nor subject to an action, before a demand and refusal ; if it were otherwise, a man might be made answerable for a tort against his own intent. Suppose a delivery of goods, the person to whom they were delivered is not bound to make a re-delivery of them till a demand is made. The conversion of them may be secret, and the plaintiff may have no knowledge of it. Suppose goods be lost, the plaintiff may not hear of them for twenty years, yet during that time they may have been transferred by sale, but there may be no conversion. A conversion must be by a user in opposition to the will of the owner. The case of the carpenter’s tools, Holt, 707. is so, because there is a disavowal of the plaintiff’s right. Holt, 296. It is contended, that where a man comes unlawfully by a thing, and is guilty of a tortious act, it is of itself a conversion; but a man cannot benefit himself by his own wrongful act. Slater did not know that the negro was the property of the plaintiff. It was therefore lawful for him to purchase, and lawful for him to use the negro afterwards. A man has no right to wear apparel found, which is the reason why it is a conversion if he does so; but in the present case the defendant had a right to use the negro. The grinding of oats by a miller, after he was forbid and warned by the owner not to grind them, was held to be a conversion. 1 Vin. Abr. 243. Vid. Cro. Jac. 147. which supports the rule in the case of the six carpenters, in 8 Co. 146. Where one comes to the possession of goods by finding or delivery, 'there must be a demand to make a conversion. Law of Trover, 6. O. L. E. 177, 178. Clay. 57. There is no distinction between finding and purchase. The user by the defendant in this case, was because he knew not that he had no right, or that the property was in the plaintiff. To say then that the user was not lawful, and therefore a demand and refusal needless, to constitute a conversion is begging the question.</p>

<p>Upon an appeal from Washington county court.</p>

This cause was argued on bill and answers. The original bill in this case was filed to obtain the opening of a forty-five foot street in the city of Baltimore, which was obstructed by the defendant below, Flannigain, by his co-defendants, the Trimbles, and by their tenant Taylor.

<p>EJECTMENT for a tract of land called SheredineV Bottom, lying in Baltimore County. At the trial of the cause, the following bill of exceptions was taken, viz.</p> <p>The plaintiff, by his counsel, to prove the issue on his part, offered to prove by the testimony of Thomas Green., who was produced and sworn as a witness in the said cause, the declarations.of one Thomas Broad, of, and concerning the tree, alleged by the defendants to be the second bounded tree of the tract of land called Long Point, and also the beginning tree of the land called Sheredine’s Bottom; which declarations were made (as the counsel of the plaintiff alleged) before William Govane and Samuel Hopkins, commissioners appointed to take the depositions of witnesses, by the County Court of Baltimore, pursuant to the act of Assembly in such case made and provided, by the said Thomas Broad, on his oath, by the said Govane and Hopkins as commissioners aforesaid administered, and afterwards on a caveat being entered against recording of the said commission and the return thereof, were not permitted by the County Court to be recorded.</p> <p>Whereupon, the defendants, by their counsel, objected against any such evidence of the declarations of the said Thomas Broad, made on his oath as aforesaid; but the Court did, notwithstanding, declare that the same evidence was legal, and permitted the same to be given in this cause.</p> <p>The defendants appealed to the Court of Appeals.</p> <p>Objection is made, 1st. That it does not appear that 71 Broad was dead at the trial, and therefore his declarations could not be given in evidence.</p> <p>2d. That the proceedings of the commissioners should be produced, and the deposition of Thomas Broad, which must be better evidence than the recollection of a third person.</p> <p>To these objections it is answeredj the plaintiff having obtained a verdict, every thing is to be construed in his favour; and writs of error being for the purpose of reversing judgments, nothing is to be construed in favour of them. 1 Raym. 71. An assignment of error is in the place of a declaration. 9 Edw. IV. 32. Is not Broad’s death an error in fact, and can it be mixed with error in law? 2 Bac. 217. Issue may be joined on an error of fact, and it; may be tried by the. country. 1 Sid. 93. Raym. 59.</p> <p>By the law of this Province, generally received and practised, on account of our particular circumstances and situation, hcarsat’' evidence respecting the boundaries of lands is admissible. This kind of evidence being then generally admissible, the question is, whether there are any particular circumstances in this case, which may operate as an exception to the general rule. It is contended that a commission having been taken out to ascertain the bounds of their lands, and the deposition of Thomas Broad being taken under this commission, that this deposition should have been produced, and not hearsay evidence of his declarations. This objection then, must be founded on some rule of etddence which it . is supposed we have infringed. And that rule must be considered, and its applicability to the present question. The rule urged in support of the objection is, that the best evidence the nature of the case admits of, ought to be produced. The conclusion drawn is, that the deposition taken by the commissioners, being better evidence than the parol declarations of Thomas Broad, it ought to have been produced. The rule does not mean to oblige the party to produce better evidence than is in his possession ; and unless it appear that other evidence is in his possession, he does not by his conduct raise a presumption that the evidence behind would be to his disadvantage. Admitting, therefore, that an affidavit is better evidence (which is not the case) than parol testimony of the same person, yet, unless the party who wants to examine the witness is in the possession of that affidavit, he shall not be precluded from his testimony, for this is not within the meaning of the rule, and would be contrary to justice, and introduce great inconvenience.</p>

<p>THIS was an appeal from Charles County. By the record transmitted, it appears the appellant was indicted 44 for charg'44 ing,claiming,andreceivinggreaterandlargerfees, as sheriff, from John Burgess ', junior, contrary to the act of As-"44 sembly,” &c. At March Court, 1769, he submitted to the Court, and was fined l,763lbs. tobacco, taken by him from the said Burgess, contrary to law, and 5,000lbs. tobacco penalty, according to the act of Assembly, the whole to be paid to the said Burgess, who claimed the same as the party grieved.</p> <p>Upon the submission before the Court, it was proved that the said Jenifer, during the time he was Sheriff of Charles County, charged the said Burgess with fees, commonly called grazing fees, and delivered him accounts thereof, to the amount of 2,777lbs. of'tobacco, as due from the said Burgess to the said Jenifer, as Sheriff, aforesaid, for tbe imprisonment of the said Burgess, on sundry executions against him.; that the said fees were often demanded tíí the said Burgess, by George Tubman, then deputy sheriff to the said Jenifer, and a bond taken from him by the said deputy, payable to the said Jenifer, including the said fees; that the said bond was executed willingly by the said Burgess, andduringthe sheriffalty of the said Jenifer, the said Burgess, having his whole sheriff’s account then read to him ; that the said Burgess never was actually in prison under any of the said executions, though taken upon them by the said sheriff. That an action was brought by the said Jenifer, after his sheriffalty in Charles County expired, on the said bond, anda judgment was confessed therein by the said Burgess, and the said Burgess t taken upon an execution on the said judgment, and that the said Burgess, upon the said execution, paid to the said Jenifer the sum of l,763lbs. tobacco, part of the said imprisonment fees, and that the said Jenifer took a bond from the said Burgess for the residue of the tobacco, due on the execution aforesaid, and afterwards offered to deliver, and did deliver up, on the argument of this case, the said bond to the said Burgess, but it was not proved that the said Burgess actually paid any part of the said imprisonment fees to the said Jenifer, during his sheriffalty aforesaid. That the said Jenifer ceased to be sheriff of Charles County in October, 1765.</p> <p>The Court, upon this evidence, gave judgment against the said Jenifer. From which judgment he appealed, and prayed the Court to sign his appeal, &c.</p> <p>The cause came on for argument in the Provincial Court, at April term, 1770, when,</p> <p>The Attorney General, ([Jenings,) (short notes,) objected to the proceedings, alleging that no appeal lay in criminal cases. That by the statute of Westm. 2. c. 31. it is enacted, that “ when one impleaded before any of “ the Justices, alleges an exception, praying they will “ allow it, and if they will not, if he that alleges the ex-44 ception writesthe same, and requires the Justices willpui u to it their seals, the Justices shall do so, and if one will “ not, another shall; and if upon complaint made of the Jus- “ tices, the ICinp; cause the record to- come before him, and 50 _ ’ 64 the exception be not found in the roll, and the plaintiff 44 shew the written exception, with the seal of the Justices “ thereto put, the Justice shall be commanded to appear 44 at a certain day, either to confess or deny his seal; and 44 if he cannot deny his seal, they shall proceed to judg44 rnent according to the exception, as it ought to be allow-44 ed or disallowed.” 2 Inst. 426, 427. 1 Bac. Abr. 325. That in 1 Sid. 85. pi. 13. resolution the 3d. it is resolved by the stat. of West. 2. c. 31. which gives a bill of exception, does not extend to any case where the prisoners arc indicted at the suit of the King; for the statute intends to remedy the overruling the evidence in civil pleas between party and party only. Same case, 1 Lev. 68. Kelyng, 15. State Trials, vol. 4. 277. 310. 8 Mod. 206. 2 Stra. 1040. 2 Hawk. 428. c. 46. s. 1. Burr. Settlement Cases, 77.</p> <p>That where a statute speaks only as between party and party, it extends not to the King. Cro. Eliz. 413. And, as to what was extortion, cited 1 Hawk. 170. c. 68. s. 1. 10 Co. 101. Co. Lit. 368. Crown Circuit Comp. 221, 222. 227. 229, 230, 231.234. See the act of Assembly, 1763, c. 18. s. 109, 110. If an appeal is allowable in this case it ought to be mutual for the crown as well as the prisoner. 2 Hawk. 209. s. 1. 3, 4. No appeal will lie at common law for the King, therefore there is none for the offender, unless it be by the act of 1713, c. 4. By which act the bond to be given is conditioned, that the party appellant shall pay to the said party, his executors, administrators or assigns, the debt, damages and costs.</p> <p>By the stat. of Edw. III. c. 6. the amendment is to be made as soon as the thing is perceived, 44 by the challenge 44 of the party.” 1 Bac. Abr. 90. But this does not extend to criminal cases, or in any case where the King is a party, because of the words.44 by the challenge ofthe party,” in which expressions the King cannot be concluded. Í 2?«c. Abr. 95. Gilb. Hist. C. P. 93. 1 Bac. Abr. 96. 2 Raym. 1061. 1472. The King’s counsel is not compelíable'to join in demurrer. 5 Co. 104. Co. Littt 72. a.</p> <p>Where a Judge admits for evidence what is not evidence, if the party demurs he admits the evidence to be good, but denieth the effects of it; in such case, he must bring his bills of exceptions. 3 Salk. 155. pi. 10. Vin.~ Evidence, 262. pi. 15. A good case to shew the defendant was guilty, by charging whilst he was sheriff, and receiving afterwards. Cro. Jac. 418.- S. C. Bridg. 89.</p> <p>That if the meaning of an act of Parliament is doubtful, the consequences are to be considered in the construction thereof; but where it is plain, no consequences are to be regarded, for that would be assuming a legislative authority. 10 Mod. 344. 4 Bac. Abr. tit. Statute, 653, 654. Vid-Parre sly, 40. Salk. 55.</p> <p>In this case there are two points to be considered. 1st,, Whether any appeal lies. 2d. Whether the County Court, erred in their judgment. A writ of error lies in all cases,, except in treason and felony. 1 Bac. Abr. 614. Salk. 504. Act of Assemb» 1713, c. 4. Where the penalty is given by law to the party after the judgment, itbecomes a debt due. Under the act of 1713, c. 4. an appeal will lie wherever a writ of error lies. The appeal under that act is in the nature of a writ of error; the act is for the ease of the subject. By the act of 1715, c. 48. s._ 2. no appeal or writ of error is allowed to the Clerk of Indictments, when convicted of an offence for which he becomes subject to a penalty. This particular exception of the Clerk of Indictments, shews that the appeal and writ of error lies in other cases. What is meant by a criminal prosecution is where public justice is coupled with it. Where the penálty is given to the party grieved, it cannot be considered a criminal prosecution. 3 Bac. Abr. 92. (A). 2 Harvk. 278. s. 73* ^¡*his matter then cannot be considered as a criminal prosecu'tion,but only a dispute between party and party. The King cannot release a suit where the penalty goes to the party grieved. 2 Hawk. 276. s. 64. 1 Salk. 266. Where particular errors are assigned, it does not preclude the Court from examining any others which may appear on the face of the record. Vin. Error, 25. pi. 8. There is no injury in receiving what a man parts with willingly, volente non fit injuria. The record shews by the judgment that it is not a criminal prosecution. Burgess was to have obtained the whole benefit of the judgment, and could have released it; hence it is evident the Lord Proprietary is not a ■party. It is admitted the King is not included under the v? ord party.</p>

THE sheriff returned on a capias ad satisfaciendum, cepi mortuus est, which return the defendant’s counsel objected to, because the sheriff did not return where the prisoner died, and was therefore ambiguous.

<p>THIS was a writ of error to the County Court of Prime George’s, to remove the record of a judgment in a criminal prosecution in that Court, against the appellant. The record states that Miller was prosecuted.at November term, 1770, “ for throwing his ballast into the channel of the “ eastern branch of Potomac river.” And, at the same term, he appeared in proper person, and submitted himself to the grace of the Court, (under a protestation of innocence.) The Court fined him 50/. for the offence, according to the act of Assembly.</p> <p>I do not know whether it will be insisted that the appellant, by submitting to the judgment of the Court, in the manner he did, or by any other means, has precluded himself from taking advantage of those errors in the judgment which he proposes to insist on. If it should, I answer, the protestation excludes, in this case, any admission of his being guilty of the fact. lie offers nothing in his defence, because he has no witnesses ; but submits, that is, does not object to the Court’s proceeding in what manner they think proper. In Plow. 276. Heath's Max. 26. Reg.. Plac. 70, 71. 18 Fin. tit. Protestation, and in Co. Lilt. 124. b. 126. a. it is said a protestation amounts to a plea.</p> <p>Suppose the appellant had suffered judgment to go ágainst him in the Court below, by default, (and these proceedings are very similar to judgments of that nature,) he might have moved in arrest of judgment; Cro. Eliz. 914. 636. or he might have brought a writ of error. 2 Bac. Abr..189. 191. Fin. út. Error, 599.</p> <p>To put the case still stronger: Suppose in the Court below he had confessed the fact, it would not have cured the errors ; for the confession of the party only goes to what is alleged; 1 Burr. 613, 614. and a writ of error lies after judgment by confession. Fin. út. Error, 508. 526. 480. pi. 1. 3 pi. 15.</p> <p>If then a writ of error will lie in this case, the effect of it is, in point of law, a commission to the Judges to examine the errors in the record ; and the Court cannot depart from the record to take into their consideration matters which do not appear on the proceedings. 1 Salk. 368. 370. 3 Dam. Abr. 88. pi. 2. 4. 6. And in all proseentions by indictment, particularly those founded on penal laws, (as this case is,) nothing material can be taken by intendment. lRaijrn. 1. 2 ilatvk. 227. 2 Sira. 999.</p> <p>The proceedings do not set forth the presentment upon which the judgment was founded, but only by way of recital. They do not set forth at what time the offence was committed, if it was beyond three years, the act of limitations would bar the Proprietor ; if within one year, the Proprietor could not prosecute alone ; because half the penalty, by the act of Assembly, is given to the informer, and the statute 31 Eliz. c. 5. gives all informers one year to prosecute, after the offence committed, within which, time the crown cannot.</p> <p>They do not set forth where the offence was committed, and, for any thing that appears, the eastern branch of Potomac may not lie in the Province, or may lie in Frederick, qr any other County than Prince George’s, in w'hich case, neither the Justices or Jury of that County could take cognisance of it. 3 Dam. Abr. 72. And nothing shall be intended within the jurisdiction of an inferior Court, which is not expressly alleged to be so. 1 Saund. 74. Ld* Raym. 211. 797. 1040. 1310. 1 Wils. 16. Garth. 12.</p> <p>The record does not set forth the authority of the Justices ; 2 Hale, 43, 44. nor for what purpose the Jury were ímpannelled ; or that they were good and lawful men, &c. 2 Hale, 167. 2 Hawk. 254, 255. or that they found the presentment on oath. 1 Mod. 26. In short, the whole record is rather a history than such a state of the proceedings as the law requires, to give that information to the Court upon which they are to found their judgment. It is in the preterperfect instead of the present tense, which is error. 2 Saund. 393. Went. Í70. 2Raym. 1370. It is said, in 1 Raym. 15. 17. 148. 2 V/ils. 16, 17. that all judgments ought to be formal, and in their proper stile ; but this record does not set forth any judgment at all. Judgments must not only be formal, but have certainty. It is not said, here, how much the judgment was for, hut only for the fine and fees, without alleging how much the fees amounted to, which ought to be precisely ascertained. 3 Dane. 68. pi. 3. Fees must here be understood to mean costs. The st£,tute of 33 lien. VIII. c. 39. s. 54. gives costs to the King when he'sues for debts on specialties to his own use, but in no other case can he recover costs, as he does not pay any. It is the same thing with the Proprietary ; and if, iii any case, costs are given, or more costs than the party is entitled t.o, it is error. 2 Stra. 934.</p> <p>Many other imperfections might be pointed out on the face of this record ; but it may, perhaps, be urged, this summary proceeding below saves expense ; the merits may be tried with equal fairness, and, therefore, is beneficial to the subject. The argument is plausible, not legal; some degree of form is necessary, and it is no objection to the' assignment of error, th,at the error is for the party’s advantage. 2 Stra. 973.</p> <p>Throwing ballast in the river was no offence at common law ; it is made so by the act of Assembly of 1734, c. 16. which does not prohibit the doing of it at this day, but only inflicts a penalty to be recovered by action of debt, bill, plaint, or information ; the one half thereof to the inform» er, the other to the Proprietary, for the support of government. When an act of Parliament creates an offence which was not so at common law, and prescribes a particular method of proceeding, (if there is no prohibitory clause,) such particular remedy must be pursued, 1 Burr. 543. 2 Hale, 171. 1 Stra. 679. 2 Stra. 828. 2 Raym. 991. 1 Raym. 347. 3 Salk. 25, 26.</p> <p>Further, this act of Assembly never intended to give the Proprietary alone a power to prosecute. It gives one half ef the penalty to the Proprietary, for the support of government, the other half to him, or them, who shall sue for the same. If an informer should prosecute without foundation, the party would have his costs. 2 Raym. 1333. 1 Salk. 30. 1 Wils. 177. But if the Proprietary can prosecute alone, it might subject the party to great inconvenience, and the danger of being harassed by such prose®Ution, without a chance of redress. Fid. 1 Burr. 545. Denison’s opinion. The statute of 21 Tien. VIIL c. 13, s. 1. upon which that case arose, is worded exactly as the act of Assembly in the present instance.</p> <p>Again, if it should be argued that the presentment in this case shall be considered as the information, or bill, of the Attorney-General, to satisfy the words of the act, the ease in Burr. 543. is directly contrary ; but, if the argument could be thus extended,‘it would not avail on this occasion. Certainty is undoubtedly requisite, and a bill, information, or declaration, in the form of this presentment, would not be good ; for upon all prosecutions upon penal statutes, (as this case is,) the offence must be shewn So be precisely within the statute. 2 Hale’s Pl. Crown, 170, 171. 2 Hawk. 249.</p> <p>But I apprehend this case must be considered as it really is, a conviction on a presentment; and considering it in that light, it is not within the words of the act; yet, if the Court should think that objection immaterial, the uncertainty of the charge would make it erroneous, and even a verdict would not aid it. 1 Salk. 375. 3 Salk. 186. Upon the whole, I contend, on behalf of the appellant, that this judgment ought to be reversed, for the reasons before alleged, and that the Court have no power to aid any of the defects aforesaid j the record of an indictment being removed into the King’s Bench, from an inferior Court, is not amendable. 2 Hawk. 244. 2 Hale’s PL Crown, 168.</p> <p>The act of Assembly imposes a penalty of 50/. reto verable by bill, plaint or information. The party submitted, and was fined a sum not exceeding the penalty. The objection urged is, that the act, pointing out the recovery to be by bill, plaint or information, excludes every other mode of proceeding, and, therefore, the recovery on the presentment was erroneoiis.</p> <p>Two questions will arise. 1st. Whether these proceedings are regular, under the act of Assembly ? 2d. Whether they are not supportable at common law ?</p> <p>As to the first, that these proceedings are regular under the act of Assembly. The rule, that where statutes point-out a particular mode of proceeding, such mode of proceeding must be followed, is to be thus expounded ; that the party shall not be compelled to answer in any other manner xuithoul his consent; but if he thinks proper to waive it, he has an undoubted right so to do ; for cvery inan may renounce a law introduced for his benefit, (admitting this law to be construed so as to point out the most beneficial proceedings for the party.) The rule is : quisquís potest renunciare juri pro se introducto.</p> <p>Many decisions, in more momentous cases, have been had on the same principles. By Magna diaria a man is not to be condemned but by the judgment of his peers ; yet he may waive the privilege by pleading guilt}-. An accessary cannot be tried before conviction of the principal, but the trial is good if he submits to it. A man’s consenting to a particular determination makes it good. Hob. 93. A statute pointing out a particular mode does not exclude others, provided the part}-is not convicted on less evidence. 1 Sir a. 546. This case, indeed, does not apply to the mode of proceeding, but only to the evidence offered in support of it; hut it shews that statutes are not to be expounded in the strict manner contended for on the other side. The result upon this head is, that if the party, as contended, was entitled to any particular benefit under the statute, he had a right to waive it, though he could not be compelled so to do ; and, therefore, by his submission, he is precluded from making this objection. Foster's Rep. 26. If considered in the contrary light, that the statute directs a more expensive proceeding than has been had in this instance, and the appellant has received a benefit by this proceeding, it is clear it cannot be assigned for error This was a more expeditious method of proceeding, and attended with less expense than a trial by Jury. It was done with the consent of the appellant, and it is a rule that no man shall assign a matter for error which was for his benefit. 5 Co. 38. Teifs case. Fitz. N. B. 48. Fost. Rep. 26. and a number of other cases, which may be found in the abridgments ; so that quacunque via data the proceeding is regular.</p> <p>Second: That this proceeding is supportable at common law.</p> <p>It is a rule, that where a statute directs a penalty for the commission of an offence at common law, the party may be proceeded against either way ; and even if an indictment concludes contra formam statuti, and is not drawn so as to bring it within the statute, the party may be convicted, on this indictment, as for a common law offence. It would be impertinent to cite cases on this point. It is laid down expressly by Hawkins, and almost every other writer on the crown law. The presentment is general, and may be taken for a proceeding at common law ; if, therefore, this was an offence at common law, the fine is properly imposed.</p> <p>That it was not a nuisance cannot be contended. Rivers are considered as highways, and any thing tending to obstruct the passage of the one, or navigation of the other, is punishable, by fine, at the suit of the King. This was a presentment for throwing the ballast of a ship into apart of the Potomac river, called the eastern branch. The pernicious tendency of this practice was considered by the Legislature, and a penalty of SOL was imposed, to prevent Judges from imposing only a small fine for such offences as they might have done under a proceeding at common law. In 1 Hawk. 201. it is said, that by the books of the best authorities it appears a river was a highway. If this, then, be considered in either light, the judgment should not be reversed. Because, 1st. The party has a right to waive the benefit under the act. 2d. As this proceeding "was consented to by him, for his benefit, it cannot be assigned for error. 3d. It is a proceeding at common law, which the directions of the act does not affect. 4th» The invariable practice is in support of the proceedings, and a number of judgments must be set aside should this objection prevail.</p>

This case comes by appeal from the High Court of Chancery. The bill was filed by the appellant on the 23rd July, 1846, and in it the complainant claimed the money, which, in 1838, it was awarded that the company should pay to him for land of the complainant, which the company had cause to be condemned for its road. The complainant also claimed the possession of a tavern and dwelling house, which the company had erected on the lands thus condemned.

This case is brought by writ of error from Allegany county court. The plaintiff in error was indicted for selling beer, ale, brandy, &c., on the sabbath day.