Volume 11 — Gill & Johnson's Maryland Reports

App-eaii from the ¡equity side of Baltimore County ¡Court. On the 21st March 1832, Thomas Morris and William Egerton exhibited their bill of -complaint, suggesting that a .certain Michael Dorsey being indebted to them on the 5th November 1831, in the sum of .$312.90, to secure the same., .executed a mortgage of .certain .property in the .city .of Baltiímore; that two days before the .execution «of .said -mortgage, 1.

This was an action of Hssumpsit, commenced on the 14th November 1836, by the appellant against the appellee. The plaintiff declared for goods sold, &c., upon the money countsj and upon an insimul computasset. The defendant pleaded non-assumpsit, on which plea issue was joined, The case was submitted to the county court upon the fob lowing statement of facts: It is admitted in this cause that Robert S. Hollins and John 8.

<p>Where the husband seeks by a bill in Chancery to recover a sum or sums of money due to his wife, the equity of the wife to a settlement is unquestion, able, and in such cases, it is the invariable practice to include a provision for the issue of the marriage.</p> <p>Upon a bill filed by husband and wife, to recover the wife’s estate, the court would not be justified, in making the terms of the settlement conform to the allegations of the bill, in the absence of proof.</p> <p>The averments of the bill, after marriage, in relation to the character of the settlement to be made upon the wife, should not be taken as evidence, and form the foundation of a decree.</p> <p>Such a practice would strip her of the customary guards, which a Court of Chancery, for the wisest purposes, has thrown around her interests.</p> <p>In decreeing a settlement, the court should be guided by the ante-nuptial agreement, if there be one. If no such agreement is proved, the settle, ment should conform to the equity of the wife, unless she waive the same, in the Accustomed mode.</p>

On the 5th October 1838, the appellants filed their petition in the Court of Chancery alleging, that Caroline B. the wife of Nathan, is entitled to a certificate of State of Maryland stock amounting to $5000, as will appear by an order passed in the eause of John W. Dorsey vs. Rezin Hammond and others-, and the original certificate on file in the said cause.

Appeal jfrom Baltimore County Court. This was a special action on the case, in which the plaintiffs-below, the appellants, declared against the- appellees.- 1st. Upon the delivery of a package of bank notes by the plaintiffs to the defendants, at their special instance and request, to be carried from Baltimore to Philadelphia. 2nd count like the first, with an additional allegation, that the defendants were to deliver the said bank notes to the plaintiffs at Philadelphia.

The bill in this cause was filed on the 3rd July 1835, by Charles Duvall, alleging that, on the 30th December 1826, he attended the sale of certain lands, &c., the property and estate of JYathan Waters, by the sheriff of Prince George’s county, and purchased the same for $1350: that said sale was made at the instance of Samuel Peach, who, at April term 1824, obtained a judgment against the said JYathan Waters for $7247 87, with interest from, See., upon which execution…

The bill in this cause was filed on the 22nd December 1835, by Henry Barrickman, and alleged, that upon application of sundry persons to the Commissioners of Harford county, representing that at a certain period of the year, the road leading from Gunpowder Meek to Baltimore, by the way of Joppa, was impassable, the said commissioners on the 27th July 1830, did order that a commission should be directed to Stephen G. Raphael, James Reardon and Thomas I. Caldwell, to lay out a…

This was an action of assumpsit, brought on the 24th August 1837, by the appellant against the appellees, in which the plaintiff declared for work and labor done, materials found; matters properly chargeable in account, and on an account stated. The following account was parcel of the declaration: York and Maryland Line Rail Road Company, To James Wilson, Du.

This was an action of trespass de bonis asportatis, commenced at January term 1837, by the appellee against the appellants, The declaration was for, that the defendants on the 25th July 1836, took and carried away the goods, &c. to wit, &c. whereby, &c. for a long time, to wit, for the space of, &c. the plaintiff was deprived of the profitable use thereof, and other wrongs then and there did. The defendants pleaded not guilty.

On the 14th day of March 1839, Henry Dorsey of Edward, filed his petition in the Court of Chancery alleging, that he purchased of Otho Scott, esquire, trustee, certain lands in Harford county, ordered to be sold by said trustee, by a decree of said court, passed in a cause in which Joseph Ashton and others were complainants, and Henry G. McCombs and others defendants; to the proceedings in which cause, reference is hereby made.

<p>Under the act of 1828, ch. 161, it is the privilege of bail in Baltimore County Court, to surrender his principal, in his own discharge, at any time during' the term, at which the fiat is finally entered; and this privilege extends to an adjourned term, although such term is held on the day at which the succeeding term is to commence.</p> <p>A legitimate rule of court, proscribes a law to the court itBelf, to which it is required to conform ; and any error of opinion, in respect either to its legal-effect, or to its application to a particular case, will entitle the party injured to- redress by appeal, provided the decision is final, and there is no> other objection to the appeal.</p>

<p>When the answer of one defendant in Chancery refers to and adopts the answer of another defendant, the court will look at both, in determining whether a full answer has been made to all the allegations of the bill.</p> <p>Where one of several joint purchasers of land, pays more than his due proportion of the purchase money, and the land is afterwards sold for the purpose of distribution, the party making the excessive payment is entitled to be repaid, and the net balance only is to be distributed among the joint' purchasers.</p> <p>If in such a case, a bill is filed for a partition or sale, by one of the parties who has paid no more than his share, the party paying more than his proportion, will be entitled to re-imbursement out of the proceeds of the sale, without shewing that his legal remedies have been exhausted.</p>

<p>A Court of Chancery will entertain jurisdiction of a bill, filed by the vendor of real estate for the sale thereof, for the payment of the purchase money, without previous proceedings at law, when the vendee does not reside in the State, and the vendor has not parted with the legal title.</p>

<p>A Court of Chancery will not grant relief to a party who has suffered a judgment at law to be rendered against him by default, unless prevented from defending himself at law, by fraud, accident, or the conduct of the opposite party.</p>

Pryor, suggesting that at February term of 1836, the appellees recovered judgment against the said Pryor, See. This writ was returned, made known, and at October term 1837, the appellant appeared to said writ and pleaded— 1st. Payment to the appellees, the Savings Institution. 2nd.

On the 19th March 1840, James H. Alder and Penelope his wife; James A. Chaplin and Elizabeth his wife; Joseph Sherton and wife; Charles Sherton and wife; Randolph B. Latimer, and Thomas H. Latimer, filed their petition before said court, alleging, that the female petitioners, and R. B. and T. H. La-timer and Dr. Latimer, are the children of Ann Latimer, and nieces and nephews of Philip J.Ford, deceased; that their said; uncle made his will on the 6th March 1836; the 1st…

Motion to dismiss the- appeal by the appellees. The bill in this cause was originally filed in Baltimore county court, as a court of equity, on the 9th August 1837, by the' appellees, against the appellants.. Its object was to recover payment of an order of the 18th June 1821, of Lemuel Taylor on Robert and John Oliver, in favor, of the appellees, under the circumstances alleged in the pleadings.

On the 22nd October 1836, George Fringer filed his bill, alleging, that on the 15th September 1828, he entered into an article of agreement with the appellant, for a tract of land, 'which said agreement was exhibited with the bill; that he entered upon, and took possession of the said tract; that he built a house thereon, as therein required; paid the taxes to the present day, and in all respects complied with his part of the contract; that being desirous to purchase said…

On the 1st January 1838, Philip Michael the appellee, filed his bill, alleging, that he purchased on the 8th day of Oclobef 1837, of James Ilammill, three negro slaves, for and in consideration of the sum of $1000; that Ilammill executed a hill of sale for said slaves, duly acknowledged and recorded within four days; that the transaction was fair and bona fide, and the negroes delivered to complainant; that subsequent to this transaction, several judgments were obtained at…

Appeal .from Frederick County Court. This was an action of debt, commenced by the appellant on the 19th of October 1836, against the appellee, on his testamentary bond as executor of Stuart Gaither, deceased, dated the 25th November 1834. To the declaration the defenddant pleaded performance generally.

This was an action of assumpsit, commenced by the appellee against the appellant, on the 14th March, 1837. The plaintiff declared for goods, &c., sold and delivered; money lent, advanced, and paid; had and received. The defendant pleaded first, non assumpsit. 2nd.

The bill in this case was filed on the 19th June 1833, by Mam If John Miller, praying subpoena against Richard Lockerman and wife, and the executors of J. T. Chase. The bill alleged that J. T. C. in his life time, executed a single bill or promissory note, to a certain R. L.jr., in trust for his mother Frances T. Loekerman, whereby he promised to pay $1000, with interest thereon. The complainant claimed under the following assignment; Annapolis, 8th May, 3832.

This was an action of assumpsit brought on the 29th April 1837, by the appellant against the appellee. The declaration counted for work and labor, care and diligence, and divers materials — use and occupation of certain stables and buildings of the plaintiff; matters properly chargeable in account — goods sold, money counts, and upon an insimul computasset.

The bill in this cau.se was filed on the 16th March 1836, by George Peter, surviving executor of David Peter, and alleged that David Peter made his Iasi will; that the executors therein named… Held: &c., sealed, See., 14th August 1813. Whereas, the above bounden S., G. and L., to carry into effect the designs of the deceased D. Pi, as expressed in his last will and testament, did advertise to be sold at public auction, on the 7th June 1813, the following lands, to wit, See.

On the 21st May 1835, the appellee sued out a writ of scire; facias, reciting, that at August term 1812, the lessee of Clement Dorsey, by the judgment of the same court, recovered against a certain George Boothe, his term, &c., in and unto all that tract of land called Hopton Park, which the said Clement had demised, &e.; And whereas, also, in the said court on the first Monday of March 1817, it was considered, that the said, &c., lessee as aforesaid, should have his…

On the 7th April 1835, David Chaney and Susanna his wife, filed their bill of complaint, against William Tipton and Mary his wife, Samuel North and Elizabeth his wife, and Lloyd Stallings. The complainant Susanna, and defendants Mary, Elizabeth, and Lloyd, were alleged to he the heirs at law of Thomas Stallings, who died seized of lands, intestate, and that he left a widow, Nancy Stallings.

This was an action of assumpsit, brought by the appellee against the appellant, on their policies of insurance, by which they undertook to assure the appellee;lost or not lost, at and from Richmond, Virginia, to Portland, Maine, and at and from thence, with the liberty of touching and trading at Mew York, to Baltimore, three thousand dollars, on the good schooner Wildee, of Baltimore, value thereat, whereof was master for that voyage, or whoever should be master in the said…

<p>The county court may allow a scire facias to be amended, so as to conform to the instructions of the attorney, by whom it is ordered to be issued.</p> <p>A scire facias is in the nature of a declaration, and should contain upon its face, such a statement of facts, as will justify the form in which the process issues, and the persons who are made parties to it.</p> <p>Where the writ of scire facias stated, that the judgment upon which it issued, was rendered against two defendants, and proceeded upon that statement of facts, against the terre tenants of one only, without a suggestion of the death of the other, the parties proceeded against, may take advantage of the defect by general demurrer.</p>

On the 2nd January 1833, John Gantz and wife, and George Dlevedence filed their bill for a decree to divide a portion of the ¿real estate, of which Daniel Gaver died seized, among his de~ visees, the same being incapable of division. With the bilí were filed the will, (an extract of which will be found in the opinion of this court) under which the parties claimed, and sundry conveyances from the devisees.

This was an action of ejectment, brought on the 2nd August 1836, by the appellant against the appellee, for a part of Gist's Inspection, by metes and bounds. The defendants in possession, appeared, and pleaded the general issue.

<p>Appeal from Baltimore County Court. .</p> <p>This was an action of assumpsit brought by the appellees •against the appellants, on the 8th March 1838. The appellants pleaded the general issue. The verdict was for the plaintiffs below.</p> <p>At the trial, the plaintiffs to support the issue on their part, proved by James Winchester, a clerk of Campbell Sr Mcllvain, merchants of Baltimore, that the goods for the price of which this suit was instituted, and of which the following'paper,</p> <p>No. 1. Items on Kennedy, Maitland Sf Co. account in hands of John Glenn, Esq, against J. A. Sangston Sr Co.</p> <p>1837. March 15 15 ps. Sheeting, 525 a 21 $110.25</p> <p>10 “ do. 350 17 60.38</p> <p>17 8 « do. 280 17 48.30</p> <p>April 5 10 “ Bear Duck, 350 10 35.00</p> <p>u U 7 “ Sheeting, 245 21 51.45</p> <p>21 20 “ do. 700 21 147.00</p> <p>$452.38</p> <p>was the bill of particulars furnished to the defendants, belonged to the plaintiffs, and that the said goods were sold by Campbell 4r Mcllvain as their factors; the defendants then on cross examination proved by the said witness, that Campbell Sf Mcllvain at the time of the transaction in question, sold goods on their own account as importers, as well as for others in the capacity of commission merchants and factors; that the said goods were sold by Campbell Sr Mcllvain to the defendants in their own name, and as their own property, the following being the bills of purchase furnished by them to the defendants, in which it was admitted the goods in dispute are included.</p> <p>No. 2. Baltimore, 21 st April, 1837.</p> <p>Messrs. J. A. Sangston §• Co.</p> <p>Bought of Campbell fy Mcllvain.</p> <p>1 ps. B blk. Bombazine, 9392, 60 a 38 $22.80</p> <p>1 “ I blk. do. 8357, 60 a 38 22.80</p> <p>1 “ B blk. do. 9390, 60 a 35 21.00</p> <p>1 “ I blk. do. 9229, 60 a 35 21.00'</p> <p>1 “ B blk. do. 9736, 60 a 50 30.00</p> <p>1 “ I blk* do. 5739, 60 a 50- 30.00</p> <p>20 “ Im. Russia Sheeting, 35 ea. 700 a 21 147.00</p> <p>$294.60-'</p> <p>No. 3. Baltimore, April 5th, 1837.</p> <p>Messrs. J. A. Sangston Sr Co.</p> <p>Bought of Campbell Mcllvain;</p> <p>24 ps. Bro. Bear Duck, 840 yds. 9 c. $75.60</p> <p>10 “ Sup. “ « 350 10 c. 35.00</p> <p>7 “ Im. Russia Sheeting, 245 21 c. 51.45-</p> <p>e.*4 1 Lacquired Faus, 500 6 c.</p> <p>$162.05'</p> <p>No. 4. Baltimore, 17th March, 1837.</p> <p> Messrs. J. A. Sangston ‡ Co. </p> <p>Bought of Campbell §• Mcllvain.</p> <p>30 ps. double twill Crape Camblets, 1093 yds. a $1, $1093.00</p> <p>10 dozen- men’s kid Gloves, No. 47, $5 - - 50.00</p> <p>6 “ “ “ 174, $4 - - - 24.00</p> <p>8 pieces Bro. Im. R. Sheeting, 280 yds. 17J c. 48.30</p> <p>$1215.30"</p> <p>Less 1 p. short of No. 47, 42</p> <p>Ex’d. $12-1488’'</p> <p>No. 5. Baltimore, 15th March, 1837.</p> <p> Messrs. J. A. Sangston 8? Co. </p> <p>Bought of Campbell £f Mcllvain.</p> <p>15 ps. Bleached I. R. Sheetings, 525 yds. a 21.2 c. $112.88</p> <p>10 “ Brown, “ “ . 350 17.2 61.25</p> <p>3 “ Canvass, No. 3, 132.3 17.3 23.56</p> <p>5 “ Canvass, No. 4, 220.1 16.3 36.89</p> <p>$234.58</p> <p>off at on 525 yds. sheeting, 2.63</p> <p>¿ “ “ 250 “ 87— 3.50</p> <p>Ex’d. $231.08</p> <p>that the persons to whom the said goods belonged were not disclosed to the defendants; that they were sold on a credit of eight months; that the sale was guaranteed by Campbell Mcllvain, and that Campbell 4r Mcllvain failed in May 1837. The plaintiffs having here rested their case, the defendants offered in evidence the following receipt:</p> <p>No. 6. Copy. Baltimore, 31si May, 1837. Received of Messrs. J. A. Sangston 8f Co. their note at nine months from 15th April, for sixteen hundred dollars, being on account of our bill against them. For Campbell § Mcllvain,</p> <p>$1600. J. Winchester.</p> <p>A true copy from the original receipt. J. J. Pollard.</p> <p>And proved that the note for $1600, given by them in conformity with the said receipt, was paid at maturity, the note being produced by them at the trial.</p> <p>No. 7. Baltimore, 15th April, 1837.</p> <p>$1600. Nine months after date, we promise to pay to the order of Campbell $• Mcllvain, sixteen hundred dollars and no cents, for value received. J. A. Sangston & Co.</p> <p>C. 8c McL No. 3166. Due 15-18 January, 1838.</p> <p>“Endorsed, Campbell <§r Mcllvain. Alex’r Fridge.”</p> <p>The plaintiffs then proved, that at the time the said receipt was given, an account existed between Campbell Mcllvain and the defendants, amounting to $3352.27, as appeared from the following account:</p> <p>No. 8. Messrs. J. A. Sangston Sr Co.</p> <p>To Campbell Mcllvain, Be.</p> <p>1837. Jan’ry 4 Bill of this date, $37.86</p> <p>17 do. do. 6.66</p> <p>19 do. do. 22.28</p> <p>28 do. do, 62.00</p> <p>Feb’ry 22 do. do. 112.20</p> <p>23 do. do. 50.23</p> <p>25 do. do. 199.06</p> <p>March 15 do. do, 234.58</p> <p>17 do. due 20 Jan, 1214.88</p> <p>April 5 do. do. 162.05</p> <p>6 do, do. 87.50</p> <p>10 do, do. 100.00</p> <p>12 do. do. 300.00</p> <p>17 do. do, 252.87</p> <p>21 do. do. 294.60</p> <p>24 do. do, 100.00</p> <p>$3246.77</p> <p>March 7 do. do. 105.50</p> <p>$3352.27 Average date 15th April, 1837,</p> <p>And then offered in evidence the following entries from the day book of Campbell Sr Mcllvain.</p> <p>No. 9.</p> <p>June 30 By note for (due 18th Jan. 1830,) $1600.00</p> <p>Aug. 31 “ goods belonging to Wood, Johnston Sr</p> <p>Burrett, - - - 132.91</p> <p>Sep. 20 “ ditto Maitland, Kennedy Sf Co. 452.38</p> <p>Nov. 30 “ Note protested,- $875.00</p> <p>Protest, 1.75— 876.75</p> <p>“ “ ditto ditto, 876.75</p> <p>Bee. 21 “ Amount of bill against E, S. Falconer, 3.13</p> <p>$3941,92</p> <p>The defendants then proved by James Winchester, the before mentioned witness, that he was the clerk of Campbell §■ Mcllvain during the year 1837, and had been so for several years; that Campbell §• Mcllvain failed in May 1837; that a short time after the failure of Campbell Mcllvain, in the latter part of May, he called on the defendants for a settlement of their account with Campbell fy Mcllvain, exhibiting the'account already referred' to as No. 9, as the correct amount, and' desired the defendants to settle it by their notes; that the defendants stated that they were the holders and owners of two-notes of Campbell Mcllvain, one dated the 1st March 1837, payable five months after date; drawn by Campbell §• Mcllvain' in favour of the Maryland Manufacturing Company, for $875, and the other dated the 17th April 1837, at four months, drawn by Campbell ‡ Mcllvain, in favor- of the Maryland Manufacturing Company, for $875, making together the sum of $1750, and that Campbell $• Mcllvain must deduct the amount of those-notes from-their account against them; that the witness expressed surprise, and said his principals would be much disappointed; that the defendants again remarked that Campbell §■ Mcllvain had failed, that the notes would be due before the-account,, and that they would not settle it unless the said notes-were deducted; that the witness then left the defendants, observing that he would consult Campbell if Mcllvain and see them- again; that after calling on Messrs’. Sangston’s' several times, they stated that they had two notes of Campbell' fy Mcllvain, which they held against the account; that the witness went back to the counting house and consulted Campbell & Mcllvain, and then told Sangston, that C. & M. were much-surprised at the claim, but as they wanted paper for a specific purpose, would take Sangston’s note for $1600, which they gave, and they, Sangstons, mentioned that an interest account could be settled afterwards, which was accordingly given by the defendants, and a receipt taken. The note and receipt being the papers before referred' to, No. 6 & 7. The defendants further proved by the witness; that a short time after the note for $1600 was given, as before stated, they prepared an account ■current between Campbell & Mcllvain and themselves, of which the following paper—</p> <p>No. 10.</p> <p>Messrs. Campbell & Mcllvain in acc’t with J. A. Sangston <§• Co. 1837. March 2 To your note in favor Maryland Manufacturing Co. due 4th Aug. 1837, $875.00</p> <p>April 7 To your note in favor Maryland Manufacturing Co. due 20th of Aug. 1837, - - 875.00</p> <p>“ our note at nine months from 15th April 1837,due 18th January 1838, for balance of account, including interest ac’t, - 1600.00</p> <p>Average, due 27th October 1837, 3350.00</p> <p>Less Int. from 1st July till due, .1.18 days, 65.88</p> <p>$3284.12</p> <p>Cr.</p> <p>1837. June 30 By sundry purchases from 4th Jan. 1837 to 24th April 1837, inclusive, per your ac’t rendered av’ge due us, 17th December 1837, - - - $3352.27</p> <p>Less Int. from 1st July till due, 169 days, 94.41</p> <p>$3257.86</p> <p>Add amount of interest not calculated on last settlement, - 10.98</p> <p>Balance due J. A. Sangston 8; Co. cash 1st July 1837, 15.28 Add error in bill 15th March, 3.50 “ Faulker’s account, 3.13— - 6.63</p> <p>Errors Excepted. Baltimore, 20th June, 1837. $21.91</p> <p>The above is a true copy of the original. J. J. Pollard. he believed was a copy, but could not say positively, the defendants having shown, that the original could not be found after diligent search for it among the papers of Campbell ‡ Mcllvain; that an account of which the said paper was a copy, was given to him, the witness, that he might deliver it to Campbell if Mcllvain; that he, the witness, did deliver it to Mr. Campbell, of the said firm of Campbell if Mcllvain, and heard from him no objections as to its accuracy or correctness. The defendants further proved by Mr, Mcllvain, of the said firm of Campbell if Mcllvain, that they had in the summer of 1837, tendered to him the notes drawn by Campbell Sr Mcllvain for $875 each, before referred to, and that he had refused to receive them, on the ground that that department of the business was not under his care. The notes were produced at the trial by the defendants and offered to be surrendered.</p> <p>No. 11. Baltimore, March 1, 1837. Five months after date, we promise to pay the Maryland Manufacturing Company, or order, eight hundred and seventy-five dollars, for value received.</p> <p>$875 Aug. 1-4 Campbell & McIlvain.</p> <p>Endorsed, l‘M. McBlair, Aft M. M. Cod’</p> <p>No. 12. Baltimore, April 17, 1837. Four months after date, we promise to pay the Maryland Manufacturing Company or order, eight hundred and seventy-five dollars, for value received.</p> <p>$875. Aug, 17-20 Campbell & McIlvain.</p> <p>19th August 1837, pr’d for nonp’t. J. B. L. n. p.</p> <p>The plaintiffs then proved by Mr. Fenby, the clerk of the Messrs. Dawsons, the agents of the plaintiffs, that in August or September 1837, he left a copy of the following paper—</p> <p>“No, 13. Memo, of sales made by Campbell ¿r Mcllvain, of goods belonging to Messrs. Maitland, Kennedy if Co. of JYew York, to the following persons, which remain on open account and not settled for.</p> <p>1837. February 16. Hall & Co.</p> <p>195 - 30 ps. 1800 yds.</p> <p>196 - 30 “ 1800 “</p> <p>197 - 12 “ 720 «</p> <p>4320 “ a 11 cts. $475.20</p> <p>March 10 Mrs, Weaver, Fell’s Point, 1 ps. Sheeting,</p> <p>35 yds. at 22 cts. - ' - 7.87</p> <p>March 15 J. A. Sangston & Co. 15 ps. Sheeting, 525 yds. at 21 cts. - - $110.25</p> <p>15 J. A. Sangston & Co. 10 ps. Sheeting, 350 yds. at 17 cts. - - $60.38</p> <p>17 J. A. Sangston & Co. 8 ps. Sheeting, 280 yds. at 37 cts. - -48.30</p> <p>28 B. C. Wright & Co. 15 ps. Bear Duck, 525 yds. at 10 cts. ■■ - 52.50</p> <p>April 5 J. A. Sangston & Co. 10 ps. Bear Duck, 350 yds. at 10 cts. - - 35.00</p> <p>5 J. A. Sangston & Co. 7 ps. Sheeting, 245 yds. at 21 cts. - - 51.45</p> <p>12 S. T. Walker, 10 ps. Bear Duck, 350 yds. at 1Q-J- cts. - - 35.88</p> <p>12 S. T. Walker, 6 ps. Ticklenb’gs, 360 yds. at 31 cts. - - 39.60</p> <p>21 J. A. Sangston & Co. 20 ps. Sheeting, 700 yds. at 21 cts. - - 147.00</p> <p>The above persons will settle their respective amounts with Messsrs. William Dawson $• Co. on account of Messrs. Maitland, Kennedy §• Co. Campbell & McIlvain.’ at the store of, or with the defendants, for the purpose of informing them that the goods in dispute were claimed by the plaintiffs, and also proved by Mr. Campbell, of the said firm of Campbell §- Mcllvain, that he had no recollection of ever having seen an account of which the paper before referred as No. 10, is said to be a copy, and certainly never assented to or acquiesced therein; and by Mr. McBlair, the President of the Maryland Manufacturing Company, that the note of the 1st March 1837, before referred to as No. 11, was drawn for the accommodation of the said company, and the note of the 17th April 1837, referred to, as No. 12, was made for the benefit of Campbell fy Mcllvain; that he placed the note of the 1st March in the hands of an agent for the purpose of having it shaved, and received as its proceeds the sum of $- being a discount at the rate of 2^ per cent, per month.</p> <p>The plaintiffs then offered in evidence the following answer .of the defendants to a bill of discovery filed by the plaintiffs. To the Honorable the Judges of Baltimore County Court:</p> <p>The petition of David Maitland, David S. Kennedy, and Robert Soutter, Jr., humbly shews, that they have instituted a suit in this court against James A. Sangston and George E. Sangston, for goods sold and delivered to them, belonging to your petitioners, through the agency of Campbell & Mcllvain, merchants of Baltimore. That your petitioners have heard and believe, that said defendants do not pretend to say that they ever paid said Campbell # Mcllvain said debt, but that they hold in their possession one or two promissory notes, drawn by said Campbell <§r Mcllvain, but which they never received from them nor with their assent, and which your petitioners believe they paid no full value for, or else received after they came to maturity. Your petitioners further state, that they desire an inspection of said note or notes, and also that said defendants may discover at what time they received the same, and from whom they received them, and what they paid therefor, if by a check or checks, that they may produce such check or checks. Your petitioners further state, that they have no means of ascertaining the facts inquired of as aforesaid, except through a discovery thereof from said defendants. They therefore pray that the said defendants may answer said interrogatories, and may produce and file said note, &c.</p> <p>On this 19th February 1839, into open court comes John Glenn, and makes oath that the foregoing petition is not filed for the purpose of delay, Thos. Kell. Clk.</p> <p>Ordered by the court, this 19th of February 1839, that the defendants named in the aforegoing bill of discovery, answer the same on or before the 28th instant, provided a copy of said bill and this order be served on the said defendants, or their attorney, on or before the 23rd instant. R. B. Magruder..</p> <p>James A. Sangston and George E. Sangston, ats. David Maitland, David S. Kennedy, Robert Soutter, Jr. These defendants reserving to themselves all right of exception to the said bill of discovery, for answer thereto, or to so much thereof as they are advised is necessary for them to answer unto, answering say. They deny that the complainants sold to them the goods referred to in the said bill, and state that said goods were sold and delivered to them by Campbell §* Mcllvain, merchants of Baltimore, in their own name, and as their own property, and that Campbell Sr Mcllvain have been fully paid for the said goods by these defendants. These defendants admit that they were the holders and owners of two notes drawn by Campbell fy Mcllvain, copies of wdiich are herewith annexed as part of this answer, numbered 1 & 2. They state that the note of the 1st March 1837, was received by them on the 2d March 1837, and that the note of the 17th April 1837, was received by them on the 17th of April, 1837, and that they became the holders and owners of the said notes at their store in Market street,bona fide, and for valuable consideration, on the days above specified. They state that the consideration given by them for the said notes was money paid in cash, and not by a check or checks. These defendants state that they received the said notes from Lemuel E. Duvall, to whom the money given for them was paid, and that for the note of the 1st of March, they gave $806.75, and for the note of the 17th April 1837, they gave $783.85.</p> <p>Stale of Maryland, Baltimore City: — On this twenty-seventh day of February 1839, personally appeared before me the subscriber, a justice of the peace, for the said State and city, George E. Sangston, one of the defendants to the above answer, of the firm of James A. Sangston and company, and made oath that the facts therein stated are true, to the best of his knowledge. D. H. McDonald, Justice of the peace.</p> <p>“Copy 1.” Baltimore, March 1st, 1837. Five months after date we promise to pay the Maryland Manufacturing Company or order, eight hundred and seventy-five dollars, for value received. $875. Campbell & McIlvain.</p> <p>“Copy 2.” Baltimore, April 11th, 1837. Four months after date we promise to pay the Maryland Manufacturing Company or order, eight hundred and seventy-five dollars, for value received. $875. Campbell & McIlvain.</p> <p>Whereupon the plaintiffs prayed the opinion and direction of the court to the jury, that if the jury believe that Campbell</p> <p>Mcllvain sold the goods for which this suit is brought, at the time and for the prices charged, and that they, the said Campbell Sf Mcllvain, sold the same as the agents of the plaintiffs in this cause, to whom the goods belonged, and if the jury further find, that the notes offered in evidence by the defendants, as payment or set off, were usuriously discounted by defendants, that they are no defence to this claim, which opinion and direction the court (Purviance, A. J.) gave to the jury. The defendants excepted.</p> <p>And the verdict and judgment being against them, they brought the present appeal.</p>

On the 20th day of February 1834, the appellees filed their bill of complaint in the Court of Chancery, against the appellants, for an account and payment of large sums of money which were claimed to be due to them by the appellants. The appellees are the children and representatives of children, legatees and devisees of Richard Dorsey, deceased. The appellant Jinn is his widow, and the executrix named in his last will and testament.

This was an action of trespass Q. C. F., for a trespass upon Greenwood. The defendant pleaded not guilty, and took defence on warrant. At the trial of this cause, the plaintiff, to maintain the issue on his part, read in evidence to the jury the certificate of resurvey of the tract of land called Greenwood Park, in the declaration mentioned, and proved that the same corresponded with the location thereof made by him upon the plots, and proved title in himself to said tract.

The bill in this case was filed on the 8th day of June 1831, by Samuel Moale and Reverdy Johnson trustees, and Robert Lemmon fy Co. and others, creditors on their own behalf, as also on behalf of other creditors of, &c.; and alleged that E. S. Buchanan, being the ostensible proprietor of Warren Factory, and carrying on trade and commerce under the name of The Warren Factory, and being largely indebted unto R. L. £f Co., to wit, in the sum, &c., and also to, &c. — for the…

John Young of Robert of the State of JVorth Carolina, John Young of Illinois, William Young of Kentucky, and others,non-residents, children and representatives of William Young, son of William Young, John Young, and others, children and representatives of William Young, son of John Young; Ulysses Young, and others, children and representatives of Abraham Matthew Young, son of John Young, by their petition represented, that Doctor Daniel Young, late of Washington county,…

On the 28th October 1836, James A. Buchanan, Esther S. Buchanan and Samuel Smith Buchanan, filed their bill, alleging, that Eliza S. Buchanan purchased of a certain George Torrance, one undivided fifth part of the Warren Factory, lands, &c., for the sum of $60,000, and in order to secure the payment of such sum, executed and delivered to said Torrance a bond, with James A. Buchanan,, Esther S. Buchanan and others as securities, and the said Torrance, at the same time gave…

On the 26th November 1834, Mary Askew, Robert Porter and others, filed their bill alleging, that Elizabeth Long of Baltimore county, was in her life time seized and possessed of a certain tract of land in said county, assigned to her as the only daughter and legal representative of a certain Elizabeth Long, one of the sisters of John Mercer Porter, whose land was partitioned, &c.; that the said E. A. died so seized and possessed in November 1834, intestate and without issue;…

This was an action of ejectment, brought upon the 28th April 1837, by the appellants against-the appellees, for a lot of ground, by metes and bounds, See. The defendants pleaded ■non cul. and took defence upon warrant.

The bill in this cause was filed on the 2nd December 1837,-by Thomas JVV Pindle and wife, alleging, that Stephen Le& died' in January 1833, seized and possessed of considerable real and personal estate, having first made his will; that the testator at the time of his death left a widow, Elizabeth Lee, and the following children, &c.; that by the said will his whole estate is devised to his widow for life, for the support and benefit of the testator’s family, &c. The bill…

This was an action of replevin, brought on the 12th September 1837, against the appellee, for a negro slave boy named John Lloyd. The writ was returned, replevied and delivered. ■ The defendant below pleaded non cepit;. property in the -defendant; property in a stranger; non cepit infra tres annosactio non, infra tres annos. To- these pleas there were replications and issues.

On the 16lh January 1837, the United States sued forth out of Washington county court a writ of scire facias of the tenor following, to wit: “Washington Countv, To wit: The State of Maryland, to the Sheriff of Washington county, Greeting: — Whereas at a county court begun and held at Hagerstown, in and for the .county aforesaid, on the third Monday in November, in the year of our Lord one thousand eight hundred and twenty, the United States, by judgment of the same court,…

Appear from- Prince George’s County Court. This was'am action of debt, instituted on the 25th September 1837, by the appellant against the appellee, on the bond' of Thomas M. B. Baden, the appellee’s intestate, and others^ under the following condition: “The- condition oí the above obligation is such, that of the' above bound T. M. B. Baden, shall well and faithfully execute-his office, and the several duties required of him by law, and shall well- and- truly account for,…

This was an action of debt, brought on the 7th January 1837, by the appellee against the appellants, on the official bond of Thomas Bruce, sheriff of Prince George’s county, dated 31st December 1832. The bond was approved by Key, A. J., on the 7th February 1833, and enrolled the next day.

This was an action of trespass upon the case, commenced upon the 17th September 1839, by Thomas Gurley, sheriff of Frederick county, against the appellee.

<p>Appeal from Washington County Court.</p> <p>This was an action of trespass upon the case, brought on the 12th January 1839, by the appellee against the appellant, to recover damages for overflowing the plaintiff’s land, by means of a dam wrongfully erected by the defendants across the River Potomac, which backed the water out of its accustomed channels upon the plaintiff’s lands, to his injury. The defendants pleaded not guilty, and the license of the plaintiff to build their dam, upon which issue were joined.</p> <p>First Exception. — The plaintiff to support the issue on his part joined, offered in evidence to the jury, by Samuel Lynch, Jr., and James Dixon, competent witnesses, that in the spring of 1836, and again in 1838, freshets occurred in the Potomac River, which overflowed the land of the plaintiff; the first of which freshets destroyed about ten acres of corn, then growing on bottom land of the plaintiff, and contiguous to the said river, and washed away a large portion of the soil, doing thereby considerable injury to the land; that the other freshet overflowed a crop of oats, and did some injury to the same. The plaintiff proved further by the said witnesses, that the said overflowing of his land, and consequent injury thereto, was occasioned by the erection of a dam by the defendants across the bed of the said river, a short distance below the lands of the plaintiff’; but on the land of an adjoining proprietor, by which said dam, the water in the part thereof opposite the said bottom land of the plaintiff, had been increased in depth above its natural level, twenty-three feet six inches. That before the erection of the said dam, the said bottom now owned by the said plaintiff, was very rarely overflowed by the water of the said river, but since the said erection, it is subject to be inundated at all times, when there is a freshet of more than usual depth in the river. The plaintiff further proved by Jacob Dellinger, a competent witness, that bottom land suchas that in question, considered in connexion with the up land of a farm, is worth one hundred dollars per acre, which is its full value.</p> <p>The defendants then to support the issue on their part joined, offered in evidence to the jury the following proceedings and inquisition, viz:</p> <p>* State of Maryland, Washington County, to wit:- — An inquisition taken at Washington county aforesaid, on the thirty-first day of October 1833, before William H. Fitzhugh, Esq., sheriff of the county aforesaid, on the oath of Jacob Hollingsworth, &c., who having been summoned by said sheriff, and having met on the land hereinafter described, of Samuel Lynch, valued for the use of the Chesapeake and Ohio Canal Company, in pursuance of a warrant for that purpose, issued to the said sheriff by Stewart Herbert, a justice of the peace of the State of Maryland, in and for the said county, on the 17th day of October, in the year aforesaid, and every juryman aforesaid having first taken an oath administered by the sheriff, that he would faithfully, justly, and impartially, value the said land, and all damages which the said Samuel Lynch, the owner thereof, would sustain by cutting the said canal through the same, according to the best of his skill and judgment, and that in such valuation, he should not spare any person for favor or affection, nor any person grieve for malice, hatred, or ill will, which said lands so valued and described, as hereinafter set forth, being required by the said Canal Company for its use, as of an absolute estate in perpetuity, in Washington county aforesaid,and being part of a tract of land bounded as follows, that is to say. Beginning at a stone marked 1, which bears from the end of upper left wing of guard lock No. 4, of the Chesapeake and Ohio Canal, and running thence north thirty-four and one-half degrees, east eight perches and three-tenths, to a stone marked 2, thence, &c. After various courses to a red oak tree, on the division line between the land hereby condemned, and the land of Thomas Buchanan, thence north forty-five and one-half degrees, west four perches, to the Potomac River, thence down said stream with the meanders thereof, &c., and thence, &c., to the place of beginning, containing eight acres, two rods and thirty-five perches. And the jury aforesaid, upon their oaths aforesaid, do say, that they value the said land and all damages which the said Samuel Lynch will sustain, by Cutting the canal through the same, and by the' occupation thereof in perpetuity, at the sum of fifteen hundred dollars, which is accordingly hereby awarded to the said Samuel Lynch, his executors, administrators and assigns* In testimony whereof, the said sheriff and jurors have hereunto set their hands and affixed their seals, the day and year first hereinbefore written.</p> <p>William H. Fitzííugu, (Seal.)</p> <p> Sheriff of Washington County¡ </p> <p>Jacob Hollingsworth, (Seal.) &c.</p> <p>In Washington County Court, March Term 1834— Ordered and adjudged by the court, this twelfth day of April 1834,-that the foregoing inquisition be, and the same is hereby affirmed, no good cause having been shewn against the same, and that the same be recorded as the law directs.</p> <p>Test, O. H. Williams, Clerk.</p> <p>It was admitted, that the land so condemned, and the farm of which it formed a part, belonged at the time of said condemnation to Samuel Lynch, Sen., now deceased, by whose executor it was sold to the plaintiff early in year 1836.</p> <p>The defendants further offered in evidence by Charles B. Fisk, a competent witness, that the land so condemned lies' next the river, along the whole extent of the said bottom land of the plaintiff, and extends from the water line of the said river at low water mark, up the slope of the bank, and takes in a strip of the bottom or level land above the bank, about one perch in breadth along the whole length of the said condemnation. It was further proved by the said witness, that of the eight acres two rods and thirty-five perches so condemn* ed, about five acres lay between the top of the bank- and the low water mark of the said river, and was condemned by the Canal Company, because the same was to be covered by the part of dam No. 4, as aforesaid. It was further proved by the said witness, that the strip of level land above the bank, contained •in all something less than three acres, and was condemned by the said company as the site of a towing path; which was constructed thereon about the year 1837-, since the injury first complained of by the plaintiff. It was- further proved by said witness, that the quantity of arable land within the lines of said condemnation, was about three acres, the residue of the same being waste land unfit for cultivation-, but having timber on it useful for the protection of the bank- of the river.</p> <p>The defendants further offered in evidence by John G-. Stone, a competent witness, that at the time of the said condemnation, the said dam No. 4, though not erected, was nevertheless planned and projected, the site thereof had been condemned. The defendant further proved by one of the jurors who tried said, inquisition, (Benjamin height,) that the height to which the water at the ordinary height would be raised, along, the fends now in question, was shewn by the engineers of the company to the jurors who tried said inquisition; but he did not take much notice of it, except so far as it affected the spring. The defendants further proved by the said Benjamin height, that •he was one of the jury who found said inquisition, and that-in-estimating their damages, they valued the land and certain timber that was on it, and also the injury arising from the destruction of a spring, and the only spring on the land, but he- has- no knowledge or recollection of their having made any allowance . for, or having taken into their consideration, the probable orpossible damages that might arise to the owner thereof, from the floodings of fends not within the lines of the-land condemned for the use of said company, by the backing of the water of the Potomac River, by the erection or height of said dam. The defendants also proved by R. M. Tidball, J3sy.rthat-he was .the counsel of the- said Lynch, in the trial of said case of inquisition; that as the counsel of said Lynch, he claimed damages for the- destruction of a spring, and the only spring on said fend, by the making of said canal, but that he has no, recollection either that he did, or that he did not, offer any proof in. relation thereto,, or claim damages before said jury, on account of any supposed flooding of said land by the erection of said dam by the said defendants, that might thereafter take place by high water or otherwise. But he distinctly recollects, that he urged before the jury a claim for damages on account of the destruction of the spring and certain timber.</p> <p>The defendants thereupon prayed the court to instruct the jury, that in the trial of said inquisition, it was competent and proper for the said jury of inquest, to take into consideration the increased height of the water in the pool of the said dam, in times of freshets, and the liability thereby occasioned of the lands along and contiguous to the said condemnation, to be overflowed and injured by the water of the said pool in times of freshets; and to award to the then owner a compensation in damages for any abatement in the value of said lands arising from that cause.</p> <p>That the right and power of the said jury of inquest to take into consideration the increased height of the said water in times of freshets, renders their finding conclusive upon the parties as to all consequences of the said rise of the water, so as to preclude either party from again enquiring into or making the said rising of the water or its consequences, a subject of future litigation, and therefore the plaintiff is not entitled to recover. Which opinion and direction to the jury the court .(J. Buchanan, C. J., and T. Buchanan, A. J.,) refused to give. The defendants excepted.</p> <p>Second Exception. — The defendants upon the facts set forth in the first bill of exceptions, which are to be considered as forming a part of this second bill of exceptions, further proved by the evidence of Charles B. Fisk, that at the time of the trial of the said inquisition, it ought to have been known to the .engineers, and he has no doubt that they did know that the water of said dam or pool would in ordinary freshets overflow the said bottom lands.</p> <p>The defendants then prayed the court to instruct the j ury, that if they .should be of opinion from the said evidence in the cause, that the liability of the said lands to be overflown by the freshets of the said river, and injury to the said lands in consequence thereof, were both probable if not necessary re-suits of the flooding back of the said water, lhat such evidence affordspnma facie proof, that the said jury of inquest did take .the said subject of damages into consideration, and allow the plaintiff a compensation therefor; and that unless some other evidence than that heretofore stated is offered to the jury by the plaintiff, the said plaintiff is not entitled to recover. Which opinion the court refused to give. The defendants excepted.</p> <p>The verdict and judgment being for the plaintiff below, the Canal Company prosecuted this appeal.</p>

Keirle and Matthew J. Keirle, trading under the firm of John W. Keirle $' Son, assignees of John Barnard, against the appellee. The defendant pleaded non assumpsit and limitations, to which there were issues, replication and issues. At the trial of the cause there was a verdict for the plaintiff, and the defendant moved in arrest of judgment.

This was an action of assum/psit, brought on the 29th October 1838, by the appellee against the appellant, to which the defendant pleaded the general issue.- First Exception.- — -It is agreed by the parties, that the defendant (Law,) was appointed administrator upon- the estate of Stephen Waterman, late master of the ship Mentor; that-im that capacity, prior to the 14th May 1836, he had- received on account of said ship, under the late convention between The United' States…

This was an action of trespass upon the case, brought upon' the 16th April 1838,by Samuel Wyman and Samuel G. Wyman, merchants and partners trading under the firm of Samuel Wyman Co., against the appellee, to recover their damages,for that the appellee intending to deceive and defraud the said plaintiffs, did wrongfully and deceitfully encourage and persuade the said plaintiff, to sell and deliver to Samuel Rae, Jr.,. and Thomas W. Rae, partners in trade,- divers goods on…

The proceedings in this cause are partially reported ante, 137, upon the motion to dismiss the appeal; but the court having decided to retain the cause, it is now reported with reference to the final decree.

This was an action of covenant, brought on the 16th October 1838, by John Critcher against Francis D. Anderson.

This was an action of debt, brought by the' appellant on thé 9th April 1835. There was a verdict for the defendant below, after various exceptions taken by the appellant, at October term 1839, which term commenced on the 14th day of the month. The bills' of exceptions were dated--day of October 1839‘.

Appeal- from the equity side of Washington County Court. On the 18th December 1837, Alfred Kline, filed his bill alleging, that on or about the 12th of April 1836, a certain Joseph Newcomer of said county, applied to your orator to loan him the sum of $310; that your orator agreed to lend him the said sum-, provided the said Newcomer would give your orator his bond with good security for the same; that the said Joseph Newcomer thereupon applied to a certain John Stonebraker…

This was an action of trespass upon the case, brought on the 14th February 1829, by the appellee against the appellant.

346. The bill in this cause was filed on the 7th July 1841, and on behalf of the State of Maryland, Josiah Bayly Esq., Attorney General of the said State, at the suggestion of Michael McBlairand George Cooke, the State’s Commissioners of Lotteries, that by an act of Assembly passed at December session 1838, entitled an act in aid of the construction of a State Armory and Town Hall, in the city of Baltimore, and the re-building and iomprovement of the Hanover Market House in…