Volume 10 — Gill & Johnson's Maryland Reports

This was an action of debt, brought against the administrators of Thomas Osbourne on the 19th day of June, 1834, upon the bond of Henry A. Callis, Thomas Osbourne and George H. Lanhan, to the state, reciting that the said Callis has petitioned the judges of Prince George’s county court for the benefit of the insolvent laws, and conditioned that he should, well and truly appear before said court, on the second Monday of October next, to answer any allegations which may be…

This was an action of trespass vi et armis, brought on the 15th of March, 1833, by Edward Hughes, Edward Hughes and Mary his wife, and Eleanor and Eliza Holmes, against the appellant Joseph Meet, for breaking and entering their close, and taking and carrying away and converting to his own use certain trees, &c. The defendant pleaded not guilty, on which issue was joined, and upon motion of the plaintiffs, a warrant of resurvey was issued.

<p>Appeal from Frederick county court.</p> <p>This was an action of assumpsit, brought on the 3d May, 1836, by the appellant against the appellee, to recover the price of a negro slave sold by the appellant to the appellee. The defendant pleaded the general issue, &c.</p> <p>At the trial of the cause, the plaintiff gave in evidence to the jury, by competent testimony, that she being the owner of a certain negro man, a slave for life, named Harry, and being the slave mentioned in the declaration, sold the said negro man to the defendant by parol, on the 1st May, 1836, at, and for the price, and sum of $650, and that the defendant thereupon paid the sum of $100, in part of the purchase money, and that plaintiff delivered said negro man to said defendant, under and’ in pursuance of the said sale by parol, and that the' defendant took him into possession, and exercised acts of ownership over him as his property. It was also proved by competent testimony, that the defendant was then engaged in the purchasing of slaves, for the purpose of exporting them beyond the limits, of this state, and that he was known to the plaintiff to be so engaged; and also, that he purchased said slave for the purpose of exporting, and removing him beyond the limits of the state of Maryland, and that the plaintiff in making such sale knew that he was purchasing said slave, with intent, and for the purpose of exporting' and removing said slave beyond the limits of the state. It was -further admitted., that no bill of sale was executed and delivered by the said plaintiff to the said defendant for the said negro, nor was any thing said between the parties, in relation to any bill of sale for said negro. It was further admitted, that the said plaintiff then resided, and still resides in Washington county, and that the defendant then resided and still resides in Frederick county. The defendant thereupon, by his counsel, prayed the court to instruct the jury, that if they shall believe, from the evidence in the cause, that the defendant purchased said negro man with intent, and for the purpose of removing him beyond the limits of the state, and that the plaintiff at the time of selling and delivering said- negro man, knew that the defendant intended to remove said negro man beyond the limits of the state, and shall further believe, that no bill of sale for said slave was executed and delivered by the said plaintiff to the said defendant, that then the plaintiff is not entitled to recover in this case, upon the ground that no bill of sale was executed as required by the 4th section of the act of 1817, chapter 112, of which opinion the court (Shriver and T. Buchanan, A. J.) were, and so instructed the jury. The plaintiff excepted.</p> <p>The plaintiff then, by her counsel, upon the facts stated in the first bill of exceptions, which is to be taken and considered as if stated in this bill of exceptions, prayed the opinion of the court, and its instruction to the jury, that if they shall believe, from the evidence in this case, that the plaintiff sold the slave mentioned in the declaration to the said defendant, for the price of six hundred and fifty dollars, one hundred dollars of which was paid to the said plaintiff by the said defendant at the time of the contract, and that in pursuance of said contract, the said plaintiff delivered the said negro to the said defendant, and that the said defendant took and exercised acts of ownership over said slave, as his property, that then the said plaintiff is entitled to recover, although they shall believe that no bill of sale was given for said slave, and that the said plaintiff knew at the time of the said contract, that the said defendant intended to transport and remove him beyond the limits of the state, without obtaining a bill of sale; provided, they shall also believe, that the said plaintiff, was in no otherwise, than as above stated, acting or assenting to the intended transportation and removal of said negro.</p> <p>But the court refused to grant the said last mentioned prayer, or to give the said instruction. The plaintiff excepted.</p> <p>The verdict and judgment being against the said Jela Cheney, she prosecuted the present appeal.</p> <p>Two questions arise in the consideration of this case: 1. Is the contract void under the 4th section of the act of 1817, ch. 112, because no bill of sale was taken for the slave purchased, as is prescribed by that section ? 2. If by the Bale and delivery, title passed to the vendee without bill of sale, is the plaintiff debarred from recovering on account of illegality in the consideration ?</p> <p>In construing statutes, the intention of the framer is the supreme and controlling guide to their true interpretation. tc A thing which is in the letter of a statute, is not within the statute, unless it be within the intention of the makers.” Bacon’s Mr. title Statutes, 1. Dwarris on Statutes, 9 Law Library, 39, 8fc. 4 Gill and John. 152. Was it then the intention of the framers of the act of 1817, ch. 112, to make a sale, as proved in the case at bar, void without a bill of sale ?</p> <p>The subject of contracts and the modes by which they shall be consummated, being matters of universal and every day concern to, the great body of a people, are seldom touched for slight and transient causes, by the law making power, and whenever the suppression of an evil, or the advancement of the public welfare, requires restrictions to be placed upon them, the legislature expresses its purpose and intent, in plain and unambiguous language. When it speaks of a contract, and means to make it void and of no effect, without certain prescribed requisites, it always says so in tolidem verbis.</p> <p>In support of this position, I refer to the great original innovator on the common law of contracts, the 29th Chas. 2, ch. 3, as also to the acts of assembly of this state, from the earliest period of provincial legislation down to the present day. 1715, ch. 47, sec. 8; 1729, ch. 8, sec. 5; 1763, ch. 13, sec. 2; 1766, ch. 14, sec. 2. Even the act of 1817, ch. 112, upon which the defendant relies as a defence to this action, affords a pregnant illustration of this view of the subject. By the first, second, and third sections of the act, the framers of it intended to prohibit, under any circumstances-, the sale of a slave for a term of years, to a southern trader, and to make void a contract for such slave between citizens of the state without a bill of sale, and they have made known that intention by emphatic prohibitions, and clear and repeated terms of avoidance. But in the fourth section, which relates to slaves for life, there is no language of prohibition, no making void without a bill of sale — no penalty-imposed upon the contract, and no declaration that title shall not pass unless upon the observance of a specific formality. There is nothing more than a mere admonition to the purchaser, that when “he shall purchase any slave or slaves within this state for the purpose of exporting or removing them beyond the limits of the state, it shall be his duty to take a bill of sale,” &c.</p> <p>The inference is then irresistible that the legislature did not intend to render the sale of a slave for life void, without a bill of sale. “ For when the legislature in the same sentence uses different words, the courts of law will presume that they were used in order to express different ideas.” Rex. vs. Bolton, 8 B. &¡~ C. 74. “ So if there is a material alteration in the language used in the different clauses, it is to be inferred that the legislature knew how to use terms applicable to the subject matter. The several inditing and penning of the different branches” said the judges in Edrick’s case, “ doth argue that the maker did intend a difference of the purview and remedies.” Dwarris on Statutes, 707. 5 Rep. 119. “Further as a rule of exposition, statutes are to be construed'in reference to the principles of the common law. For it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced; for if the parliament had had that design, it is naturally said they would have expressed it.” Dwarris on Statutes, 695.</p> <p>The provision contained in the fourth section of the act was inserted merely as a warning to the purchaser, and the bill of sale therein directed to be taken, was provided for his protection against the forfeiture imposed by the fifth section of the act. It is not prescribed as essential to the contract of sale, but is a thing subsequent and subordinate to it. If the vendee, intends to export the slave, the law tells him to take a bill of sale, otherwise he will incur the risk of forfeiture. The language of this section is purely directory, and the contract of sale is good and binding,- notwithstanding the direction is disregarded. Rex, vs. Birmingham, 8 B. fy C. 29, quoted in Dwarris on Statutes, 9 Law Library, 56.</p> <p>If then a bill of sale was not essential to the perfection of the contract proved in this case, and it was not intended by the framers of the act to make such sale void without it, the plaintiff is entitled to recover, no matter what may be the penalty or forfeiture imposed by any subsequent clause of the act. But waiving this conclusion, I will proceed to inquire, whether there be any iron rule of .construction which can defeat our just rights of payment for the property sold, under the fifth section of the act. This inquiry is' embraced under the second proposition laid' down at the commencement of the argument, and appertains to the prayer in the second bill of exceptions. The sale in this case is clearly not tainted with that kind of illegality which, will defeat the plaintiff’s right to recover. She has in the act of contract and the delivery of the slave done nothing that the law prohibited, nor omitted to do any thing that the law required of her, to the completion of the contract. Neither has she done any thing in contravention of the spirit of the law, for the bona fide sale of a slave for life, to a person who purchased to remove him out of the state, was never intended to be- prevented by the act of 1817, ch. 112. The mischief which the law was made to.remedy is particularly specified in the preamble of the act, and it does not embrace this case. Even if it was illegal for the purchaser to remove beyond the limits of the state the slave for life bona fide purchased by him without his taking a bill of sale, and the vendor, the plaintiff in this case, knevt at the time she sold and delivered said slave that he intended so to remove him, still she is entitled to recover, inasmuch as she in no wise aided or contributed towards such removal, nor was in any respect a sharer in the transaction. Long: on Sales, 85. Hodgson vs. Temple, 5 Taunton, 181. Johnson vs. Hudson, 11 East. 180. Brown vs. Duncan, 21 En. Com. Law Rep. 29. Bowry vs. Bennet, 1 Camp. Rep. 348. 1 Holt. JV. P. C. 107, note. Ross on Vendors, 12 Law Lib. 166-170. Wetherall vs. Jones, 3 Bar. Jldol. quoted in Smith on Mercantile Law, 17 Law Library, 188.</p> <p>In the last mentioned case, Lord Tenterden takes a broad and liberal view of the whole subject of illegal sales, and lays down fixed and comprehensive rules and principles for their construction. He says, “where a party seeks to enforce a contract which is expressly or by implication forbidden by the statute or common law, no court will lend its assistance to give it effect; and there are numerous cases in the books in which an action on the contract has failed, because either the consideration for the promise, or the act to be done, was illegal, as being against the express provisions of the law, or contrary to justice, morality, or sound policy. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been prevented from recovering, by an infringement of the law not contemplated by the contract, in the performance of something to be done on his part.”</p> <p>In this decision the learned judge has extracted from the various eases of illegal sales the essential principle that governed them, and has laid down the unquestionable conclusions to which all of them tend, as established law. A contract to be void must be expressly prohibited or declared to be void, or be “contrary to jicstice, morality, or sound policy.”</p> <p>The contract in this case is not expressly prohibited nor made void, nor is it contrary to justice or morality, because negro slavery is sanctioned by religion, and is in conformity to the constitution and laws, and contracts in relation to slaves are warranted by the same high authorities. Neither is the sale of the slave as made by the plaintiff to the defendant contrary to sound policy. It has been the settled policy of the state of Maryland for the last thirty years to get rid of her black population by all the means that could rightfully be resorted to. The legislature of the state has passed laws authorizing their ‘ transportation for crime, instead of other punishment. 1809, ch. 138. 1818, ch. 197. 1819, ch. 159. Nor can it be.said that these provisions are adopted only to cast off the vicious. They are not extended to the white offender however criminal he may be. So by the act of 1831, ch. 281, a direct tax is imposed.upon the people of the, state to defray the expenses of transporting free or manumitted blacks, and by 1831, ch. 323, the introduction of slaves from other states or elsewhere into this state is emphatically prohibited,- and every person who offends against this provision of the law is subject to indictment, and the slave is forthwith expelled from our borders. And so-fixed is this policy, that the legislature, year after year, have refused permission, upon the most urgent applications for a special law, to bring into the state slaves that accidentally came into the ownership of a citizen of the state' by marriage br otherwise: The policy of the state to relieve herself of the evils of .her black population has been, I repeat, for, a long series of years settled, permanent, unwavering, and inexorable. The bona fide sale of a slave for life then to' be removed beyond the limits of the state, so far from being’ against “-sound policy”'is in perfect unison with the-most cherished policy of the state. A restriction upon or interference with this policy was never contemplated by the act of 1817,- ch. 112.</p> <p>“ The consideration then and the matter to be performed,” are both legal, and in -the language of Lord Tenterden, a plaintiff under those circumstances, “has never been prevented'from recovering,” &c.</p> <p>There is not, strictly speaking, any evidence in this case that the act of 1817, ch. 112, was ever violated even by the defendant, so as to incur the forfeiture. The slave was never taken out of the state, and nothing is proved but that the purchaser bought with intent to remove him. This is nooffence. By the act of 1817 there is a locus penitentice provided after the -purchase, and if the purchaser changes his; intention and determines to keep the slave in the state, he is his to all intents and purposes, and even the arm of the sovereign power of the state cannot wrest him away. The inquiry and forfeiture can only take place where the purchaser has the slave in one of the counties of this state, and after u affidavit made that he is about to remove him contrary to law.” If he changes his mind after purchasing and is not about to remove him, no affidavit can be made, and no forfeiture can take place. But even if he persists in his intention of removal, the law will presume, if it be necessary, to sustain the contract, that in that period, which is allowed as a locus penitential he will provide all the requisites prescribed for a lawful removal. Haines vs. Busk, 5 Taunton, 521. 4 Taunton, 856. In every view of this case then, as it is presented in the bill of exceptions, the plaintiff is entitled to recover. A contrary construction would make the act of 1817, ch. 112, which was passed among other things for the protection of the slave-owner, a most potent instrument of fraud and imposition in the hands of the slave-dealer, and would cause it to be much more prolific in producing mischief, than efficacious in preventing it.</p> <p>There are three counts in the declaration. The first relates to a special contract, and avers performance. The second and third are indebitatus assumpsit, and rely on an executed contract. In all it is said, the plaintiff had sold and delivered a negro man to the defendant. Part of the argument has turned on the meaning of the word sale. What constitutes a valid and effectual sale? The term sold, as used here, implies a contract. It is to be understood according to the subject matter. In cases where there can be no contract without writing, the general term in a declaration, means a written contract. If it appeared in the declaration, that the purchaser was a foreign dealer, then the contract should have been pleaded to be a written contract. But here it must so appear in proof, and I contend that is necessary to make a valid sale. 1 contend:</p> <p>1. The averment of a sale is not gratified unless there-was a bill of sale.</p> <p>, 2. That on,the part of the buyer and seller the contract ■was in Contravention of th,e act of 1817. Both violated the law.</p> <p>■ 3. Even if a sale by parol operated to sustain the allegation of sold and delivered, and there was no actual violation of law on the part of the plaintiff — yet if she knew the slave sold was intended to be exported without a bill of sale,, she was an aider and abettor of a course of dealing against the policy of the law.</p> <p>The word sale, imports a contract ex vi termini; a transmutation of property from vendor to vendee. 2 Chit. Plea. 55. Emery vs. Fell, 2 Term. Rep. 30. 12 Law Lib. 1. Upon a sale there must be a delivery — a legal sale and delivery, so that each may have his action, one for the price— one for detainment or trover. Each must have a remedy. If not, neither could have it. A sale by parol in this case, could not legally produce these results.</p> <p>Matters of evidence need not be alleged, but must appear in proof — the mode of proof must conform to the law. 2. Chit. Plea. 253, note. Ross on Vendors, 288. Under the act of 1817, there could be no transmutation to a negro trader unless by bill of sale. Its true, interpretation is involved. The three first sections apply to servants or slaves for a term of years only.. The 4th and 5th sections apply to slaves purchased for exportation. The first section has nothing to do with thé manner of the sale. It operates upon the vendor and prohibits a sale to non-residents. Even if the vendee is innocent, guilt on the part of the vendor forfeits the slave.</p> <p>The second section applies to vendee, and prohibits a purchase under a penalty. It applies to non-residents, and on conviction the sale is avoided. If its formalities are wanting no title vests.</p> <p>The third section applies exclusively to sales to residents.</p> <p>The act was intended to protect slaves and masters.' The evidence of transfer of slaves for years was to be put on record. Taking the 4th and 5th sections together, they comprehend the same principles as to slaves for life, as the 3d section in regard to slaves for terms of years. There is no prohibition of a sale, in terms, without a bill of sale, but the spirit and intent of law clearly require it. The act is to be construed together. The act considers that a negro may be sold as a slave for life, who was not a slave, or only a slave for a term: and intended to confine sales of slaves for life without a bill of sale to sales for the county of their residence.</p> <p>The 4th section was not for the benefit of the purchaser, but was intended for the protection of the negro. It meant to prohibit secret sales. Its language is more than directory. It is made the duty to take a bill of sale. It is a part of the res gesta. The acknowledgment is a part of the vendor’s contract. No doubt it is the duty of the vendee to record the sale. His neglect in such a case is not of a duty directed, but of a duty prescribed for the completion of his title, which the law requires.</p> <p>It concerns the public to have the marks and descriptions of slaves intended for exportation. These facilitate the discovery of crime, and the restoration to owners of their lost property.</p> <p>What was the law before the act of 1817. Sales without stint might be made of slaves for terms to non-residents. Now non-residents cannot buy. It would be idle to require a bill of sale, to be registered, as a means of preventing infractions of a law — if a title can be acquired without it.</p> <p>Neither prayer could prevail, if the title does not pass — for the law is the same on both counts of the declaration.</p> <p>I insist that the act of 1817 made it the duty of both contracting parties to execute a bill of sale, and see to its being recorded. The 4th section relates to both buyer and seller — both knew the fact of intended exportation — both equally guilty.</p> <p>A sale to aid an illegal use is void, a sale of poison to one intending to destroy his wife is void. Lightfoot, et at, vs. Tenant, 1 Boss. Sf Pull. 551. One who is part and parcel of the violation cannot recover, 1 Law Lib. 12. The vendor must do some act to promote, intending to promote the illegal use. .Thus he acts against public policy and cannot recover the consideration of his contract.</p> <p>Under the statute of frauds, where there has been a delivery of goods sold, no memorandum is necessary. It dispenses with the writing, and hence the cases under that statute cited do not apply here. The price of a ship sold and delivered may be recovered without register. Is the contract at law void, then in chancery the plaintiff would be bound to give a bill of sale. The act in question grew out of the uneasiness of some persons about slavery, and the 4th section was intended to reach the people of Maryland, to protect free persons and slaves from kidnappers and negro buyers and stealers, It was a guard to this special end; — such is its policy. The common law is, that property passes by delivery. The act was to restrain aq evil under special circumstances, not designed to alter the law of sale, 9 Law Lib. 43, 50. Changes of the common law, are affected by express words — as in the 1st and 2d sections. I am at a loss to .ascertain the extent of the 4th section except that it was directory. The proviso in the 5th section shows that it is not applicable to residents who designed to transport their slaves. If right in this construction, what is required? No penalty is fixed by the law. The vendee who successfully prosecutes his purchase, keeps his money and refuses to pay. The court will so construe the law to advance fraud. Where a statute prohibits an act under a penalty, a contract to do the act is not void, though the party be subject to the penalty. The rule refers to contracts illegal or wrong as simoniacal contracts, Johnson, et al, vs. Hudson, 11 East. 180. Gremare vs. Le Clerc Bois Valon, 2 Camp. 144. But in other cases, as that no person shall carry on two trades at the same time, under a penalty. The mere sale of goods with knowledge that they were to be used in the prohibited calling, does not prevent the recovery of the price.</p> <p>It may and ought to be implied that as the plaintiff knew the defendant was about to transport the negro, that he would also apply for a bill of sale within twenty days.</p>

This was an action of debt, instituted on the 7th September, 1835, by the appellant against the appellee, on a testamentary bond bearing date the 13th April, 1827; the condition of which was, that “the above bounden Jeremiah JYicols and William Barroll, executors of Henry Tilghman, shall well and truly pay all just debts and claims against the deceased, and all damages,” &c. “ and also all legacies bequeathed by the last will and testament of the late Henry Tilghman, then,…

This was an action of assumpsit, commenced on the 16th October, 1835, by the appellee against the appellant. The-declaration contains five counts. 1st count. That on the- 29th April, 1816, the said Lamar-, by his bill obligatory-bearing date, &c. ten months after date promised and obliged himself to pay to a certain Benoni S. Lamar the- sum of $350, and after several specific payments in part satisfaction of said bill, and on the 1st January, 1822, the said B. S..

On the 19th January, 1824, James McCormick, Junior, filed his bill in the court of Chancery, alleging that Jacob G-ibson, late of Talbot county, deceased, being in his life-time seized and possessed of a very large estate, both real and personal, and being indebted unto the president, directors and company of the Farmers’ Bank of Maryland, in the sum of $13,720, to secure the same on the 25th May, 1813, duly executed to them a mortgage “ of all and singular those lands and…

This was an action of trespass upon the case brought by Moses McJYamee against Richard Lamar, on the 11th June, 1836.

On the 25th May, 1836, Francis L. Darnall, Henry B. Darnall, and Richard B. Darnall, executors of the last will and testament of Philip Darnall, Charles H. W. Wharton, Rebecca Wharton, John Scott, Francis Wharton, and Ambrose Wharton, filed their bill in Chancery against Melicent Waring, executrix of Henry Waring, charging that Elizabeth Smith possessed of a large real and personal estate, departed this life about the 1st September, 1815, having devised her estate to her…

On the 15th June, 1826, John and Alexander Gregg filed their bill in Chancery, alleging that James and Mordecai J. Allen, were indebted to them in the sum of $2,629 22 upon their promisory note: that Mordecai J. Allen died in February, 1821, leaving his nephews, the appellants, his heirs at law, and James Allen his surviving partner; that he devised certain real property to John, the son of James Allen, and the residue of his estate to his said nephews, and appointed James…

This was an action of assumpsit brought by the appellee on the 2d April, 1835, in which she declared, for work and labour, &c., and for the use and occupation of a certain dwelling-house, store,… Held: used and occupied, Sec. The declaration also contained the common counts. The defendant pleaded non assumpsit, on which issue was joined.

This was a bill filed on the 12th March, 1834, by John Tolson and Eleanor his wife, and their adult and infant children, alleging that Francis Tolson, the father of John, and the grandfather of the children of John and Wife, who died in the year 1824, by his last will and testament, gave to all his children, except his son John the complainant, a specified portion of his estate, that with the exception of a small portion of his real estate, which the said testator devised to…

This was an action of debt, brought by the appellee against the appellant on the bond of Joseph Dyclces, Matthew French and William Comegys, the intestate of the defendant below. The bond was dated 21st May, 1818, and recited that Joseph Dyclces “hath been appointed by the honourable the chancellor of Maryland, trustee for Ellen Dyclces, wife of James Dyclces, and the children of the said James and Ellen, which they now, or may hereafter have.

Mary’s county. On the 8th May, 1838, the appellants filed their petition in said Orphans court, alleging that in the latter part of the year 1826, John Sothoron, the former husband of the female petitioner Mrs. Elizabeth A. Jones, departed this life, having previously devised in his last will, amongst other matters, as follows: “ And further, my will and desire is that if either my sons, including the child of which my wife is now pregnant, should it be a son, shall die…

This was an action of assumpsit, brought by the appellant on the 17th April, 1834. The declaration was endorsed with an order to the clerk of the county court, to “docket this suit by consent, and enter the case referred according to the agreement in Carroll vs. Me Tavish and Catón, to Stevenson Archer and Richard B. Magruder, Esqr's, they having been selected according to the terms of that agreement. J. Glenn, for Plaintiff, R. Johnson, Defendant's Attorney.

The bill in this cause was filed on the 21st September, 1827, by Peter Rescaniere, against the appellants, alleging that on or about the 15th January, 1813, John Hanna, John Craig, Dutton Williams and Charles Malloy, became the purchasers of the brig Swallow; that in the year 1814, by the order of the United States authorities, she was sunk at the entrance of the harbour of Baltimore, for the' defence of that port; that while sunken, on the 25th February, 1815, she was sold…

Appeals from the equity side of Baltimore county court. On the 12th October, 1836, John W. Harris and William Chauncey filed their bill, alleging that at January term of said court, Benjamin Brady confessed a judgment in favour of Richard E. Alcock, in a certain fictitious action of assumpsit, instituted on the same day on which said judgment was confessed, for the purpose of obtaining tbe same by filing a declaration by consent of parties without issuing any process: that…

The bill in this cause was filed on the 5th of March, 1825, by Humphrey Pierce, (intestate of the appellants,) and alleged, that a short time prior to the 9th December, 1799, a certain William Duncan being the owner of a brig called the Betsey and Peggy, sold to the complainant one-half of said vessel for $3,150, and the said Duncan and complainant having agreed to be jointly interested in a cargo to be shipped on board said brig to Saint Domingo, the said Duncan was…

This was an action of assumpsit, commenced by James Owings on the 3d October, 1833, against the appellant. The declaration was for sundry matters and articles properly chargeable in account; for work and labour, money lent and advanced, paid, laid out and expended, had and received, and upon an account stated. The defendant pleaded non-assumpsit, on which issue was joined.

On the 21st September 1833, the appellants obtained a warrant for an attachment from a justice of the peace, directed to the clerk of Baltimore County Court.

, by Eliza Jinn Stewart (afterwards Jones), among other mat-. ters, to vacate an allowance made to the appellant, for the board of his testatrix and her child, in his settlement with the Orphans Court of Anne Arundel county. The complainant was the residuary legatee of Margaret Stockett. The allowance was made to the appellant, in an account settled on the 28lh November 1828, in his first and final account.

The bill in this cause was filed by the appellee, against Catharine Vincent adm’x of William Vincent, James J. Weems adm’r of John Weems, Mary Chapman adm’x of Henry H1 Chapman,… Held: that they were not so liable, the reporters deem it unnecessary to publish more of the cause than is sufficient to illustrate the' opinion of this court. The proceedings which it was supposed created a personal liability in the defendants, were as follows: Exhibit B. Saturday, July 29th, 1815.

The bill in this cause, was filed on the 20th March 1837, by JYoah Worthington, alleging that in the month of January 1836, Caleb D. Owings and others, by virtue of the act of 1834, ch. 253, made their application to the commissioners of Baltimore county to obtain a right of way from their farm, through the lands of the complainant; that commissioners were appointed to lay out said private way, who discharged said duty, returned their proceedings, and a right of way was…

The bill in this cause was filed on the 4th December 1827, by James Pearce executor of James Pearce, and alleged, that upon a bill filed on the 3rd December 1811, the real estate of a certain John Voorhees was decreed to be sold for the payment of debts, and that William, Spencer was appointed trustee to make such sale; that he made various sales which were duly ratified, and among others one tract of land was sold to a certain Benjamin Terry for the sum of $1184.22; that he…

This was an action of assumpsit, brought on the 22nd August 1834, by the Maryland Savings Institution against Joseph Duncan. Issue was joined on the plea of non assumpsit. 1st Exception.

The bill in this cause was filed on the 3rd November 1836, by Alexander Randall and Thomas S. Alexander, and alleged that, by a decree of this court of the 8th January 1835, they were appointed trustees to sell certain real estate; that in execution of their powers, on the 12th June 1835, they sold to Thomas Swann certain parcels of real estate, Nos. 2, 3, 4; viz. Lot No. 2 — 421 acres, at $30 per acre. Lot No. 3 — 1451-acres, $27 per acre.

The bill in this cause was filed on the 30th December 183?, by James C. Summers and Mary his wife.

This was an action of debt, commenced by the appellee on the 3rd February 1836.

This was an action of assumpsit, brought by the appellee against the appellant on the 20th February 1836. The defendants pleaded non assumpsit and limitations in both forms; on which pleas issues were joined.

The bill in this cause was filed in January 1839, by Samuel Fowler, alleging that, at October term 1837, of Prince George’s County Court, a judgment at law was obtained by the executors of James Fitzgerald, for the use of Samuel P. Lee, against George Semmes, which would appear as well by a short copy thereof exhibited with this, as also by reference to a suit depending in equity, between the said Semmes and the appellee' in this cause.

Appear from the Orphans Court of Prince George's county. Upon ihe 18th December 1838, Richard H. Marshall filed his petition in said court, alleging that he was guardian of Martha Ann Soper, one of the representatives of Mary Ann Soper; that letters of administration had been granted on the estate of the latter to one John Mayhew, who had given wholly insufficient security for the administration of the estate committed to his care: and that the petitioner as guardian, had…

This was an indictment against the plaintiff in error for being the father of an illegitimate child. The mother and the child resided in Frederick county, and the father, the plaintiff in error, in Carroll county.

This was a scire facias sued out on the 1st October 1837, in the form following: Maryland, Washington County, to wit: — The State of Maryland to the sheriff of Washington county greeting.

This was a proceeding by attachment, commenced on the' 8th May 1837, by the appellants, to compel the appearance of Eleanor Berry a non-resident debtor. The plaintiffs filed an affidavit of their debt, &c., and a warrant of attachment was issued on the same day by the clerk of Prince George’s county court. On the 28th June 1837, a writ of capias ad respondendum, and short note of the plaintiff’s claim were issued, and sent to the sheriff.

The bill in this cause was filed on the 28th Sepember 1838, by Thomas H. Wright of the city of Baltimore, and alleged that about the 21st of March 1827, he was seized in fee simple of real estate in Kent county in this State, and containing four hundred acres of land or thereabouts; that being so seized, on the day and year aforesaid, he sold and contracted to convey unto a certain James Woodland, then of Cecil county, the said lands and premises, at and for the price of…

The bill in this cause was filed on the 21st January 1834, by Joshua Jones, alleging that, a certain John R. Jones borrowed the sum of $2000 from Lucy Harwood, and to secure the same gave his note under seal, bearing date 4th August 1829^ with the complainant as security therein, and carrying interest from dale; that the said note was delivered to the said Lucy, and remained in her hands for some time; that John R. Jones was in mercantile business in Baltimore, and became…

This was an action of assumpsit, brought upon the 15th November 1834, by the appellants against the appellees. It had been before this court at June term 1837, and will be found reported in 8th Gill §■ Johnson, 449.

<p>The ancient law requiring livery of seizin to give efficacy to deeds of feoff, ment, is abolished in this State, and enrollment now is oqffiyatent to livery^</p> <p>By the usage and practice of this State, bargains and sales, as a modo of passing estates, hays nearlysuporsodedall otlmrmodesof conveyance^</p> <p>In a deed of bargain and salo, the uso ishSeutod jn the bargainee by jhe slat, ute, and the limitations to use, are merely trusts in chancery, the cestui que trusts being seized only of an equitable estate.</p> <p>The Lord Proprietary of Maryland, by the terms of the charter, held his lands in free and common soccago, and his grantees, anterior to the revolution, held hy the same tenure, feudal services, with their incidents being attached to his grants.</p> <p>These services and incidents were in effect abolished by the revolution, and escheats, though they continued, changed their character; the land, instead of going to the lord of the fee, reverting to the State as property without an owner.</p> <p>After the revolution, lands in this State became allodial, subject to no tenure, nor to any services incident thereto, and under our acts of assembly, the State succeeded to the property, whether the owner dying without heirs, had a legal or equitable estate.</p> <p>The term seized, in our law, does not always refer tty a legal seizin, but will have a more extended signification, wherynjjcesgary to clfeetuato the design of the legislature.</p> <p>Lands held in trust in this State are liable to escheat when the cestui quo trust dies without hell's.</p> <p>An action of ejectment may be maintained by a trustee against his cestui que trust, unless, as under certain circumstances may be done, a conveyance of the legal title is presumed.</p> <p>The right of entry in the lessor of the plaintiff will support an ejectment, although the lessor has never made an actual entry, which is superseded by the common consent rule, at least such is the effect of the rule, where . the parties stand in the relation of landlord and tenant.</p> <p>Although equitable titles will escheat where the owner dies without heirs, still, in an ejectment by the trustee or his grantee against the party claiming under the escheat, the legal title will prevail, the remedy of the defenj dant being in equity.</p>

<p>It is settled, that the bequest for life, of the use of a female slave, vests in the-legatee a property in the issue bom during the existence of the life estate, upon the principle, that the issue is to be considered, not as an accessary,, but as a part of the use, to go to- the person to whom the use is limited.</p> <p>The assent of the executor is indispensably necessary to perfect the title of the legatee of a slave, and this is equally true with reference to the issue of a female slave, bom whilst the mother, the subject of the legacy, is in? the possession of the legatee. No title to such issue can be maintained,, without proving the assent of the executor to the bequest of the mother.</p> <p>Such assent may be presumed from facts and circumstances, but a prayer taking that question from the jury, and submitting it to-the court as a legal, presumption, was properly refused by the county court.</p>

The original bill in this cause was filed on the 27th June, 1825, by the appellant, Thomas II. Duckett, of Loudon county, 'Virginia.

The bill in this cause was filed on the 19th August 1829, '.by the appellee against the appellant, and charged that, on the ,10th May 1826, John Reynolds having occasion for a sum of money applied to, and borrowed of, a certain Edward Traill the sum of $1000, to secure the re-payment of which he gave to the said Traill his single bill, with the appellant and appellee as his sureties; that the single bill not being paid, Traill sued thereon at law, recovered judgment, and…