Volume 12 — Gill & Johnson's Maryland Reports

On the 4th December, 1841, Samuel Lucas, William Gvnjnn, Charles G. Ridgely, Oliver Holmes, George G. Bell and Chas.

On the 18th February, 1840, the State of Maryland exhibited its bill of complaint alleging, that heretofore, to wit, by an act of Assembly, passed at December session 1816, and entitled “An act to authorise a lottery or lotteries to raise a sum of money for the purpose of repairing, and raising a sum of money for the use of Washington College,” and by two several supplements thereto, the one passed at December session 1821, and the other at December session 1823; and also by…

On the 22nd day of March, 1833, Nathaniel Clary filed his bill on the equity side of Baltimore county court, alleging, that Henry Howard of John, was on the 18th October, 1832, seized in fee of a part of a tract of land called Head Quarters, as described in the bill of complaint, and that he agreed with Philemon Welsh for the sale thereof, gave and delivered him his bond of conveyance, binding himself upon the payment of one hundred and fifty dollars to him Henry, before the…

Hall and Robert Evans on behalf of themselves and such other creditors of John Creswell the elder, as might come in, against his executor, heirs and devisees, to subject his real estate for .sale, on the ground of the insufficiency of his personal estate to pay his debts. Hall claimed a debt due him arising from his endorsement of notes for CreswelPs accommodation; and Evans as his security on a sheriff’s bond entered into by Creswell.

This was a proceeding in attachment commenced by the appellants, on the 17th April, 1837, viz: “Slate of Maryland, Baltimore city, to wit: Be it remembered, that on the seventeenth day of April, in the year one thousand eight hundred and thirty-seven, before me the subscriber, a justice of the peace of the State of Maryland, in and for the said city, personally appeared Philip Thomas Dawson, a citizen of the State of Maryland, and made oath on the Holy Evangely of Almighty…

<p>In an action brought upon an administration bond, for the use of S., who claimed as the assignee of the obligee of the intestate, it is necessary to prove the assignment of the bond to the equitable plaintiff, but an objection to the admissibility of the bond in evidence, does not raise any question about its assignment; for the bond may bo proved as a part of tho chain of evidence without proof of the assignment, and if no such proof was eventually offered, tho proper objection would be to the plaintiff’s right to recover.</p> <p>Since the act of 1825, chap. 117, upon an exception, this court can only look to the point decided.</p>

This cause had been before the court at December, 1839, and is reported in 10 Gill if John. 480, as the case of Luclcett against White, et al. On the 29th June, 1840, the Chancellor, (Bland) upon the opinion of this court, 10 Gill if John. 497, passed the following order: On consideration of the foregoing petition and of the opinion of the judges of the Court of Appeals therewith exhited, it is ordered in pursuance of the said opinion, that the said petitioners have leave to…

Choss appeals from Chancery. On the 21st December, 1832, William L. Weems, and Mary his wife, filed their bill in Chancery, alleging that Henry Hat-ton, father of Mary, departed this life in the year 1824, having devised to his son, the appellant, one hundred and fifty acres *• of land, whereon the testator then dwelt, a number of negroes by name, and also one half of his stock, plantation utensils, household and kitchen furniture, all which were so devised in trust for the…

Appeals in the tax causes under the act of March session, 1841, ch. 23, By the act of 1841, chap. 23, an act for the general valua - tion and assessment of property in this State, and to provide a tax to pay the debts of the State.

This was a scire facias sued out on the 2nd December, 1833, reciting a judgment of November term, 1832, recovered by John McPherson and John Brien, against the appellant, for as well the sum of $742.37 debt, as the sum of $2,000 damages, &c., suggesting the death of John McPherson, and that execution in favor of John Brien, as surviving obligee of John McPherson, remains if, &c., returnable on the 4th Monday of March, 1834.

This was an action of Ejectment brought by the appellee on-the 21st day of January, 1835, to recover a tract of land called Palmer’s Forrest. The defendant pleaded not guilty and took defence on- warrant. The case was submitted to the county-court on the statement of facts.

Caveat by the appellees against the admission to probat of the nuncupative will oí'Hezekiah Coberth. The appellant moved the court to admit the testimony of the subscribing witnesses to a paper or instrument of writing, purporting to be the nuncupative will of H. Coberth, deceased, and which paper was as follows: uWe, the undersigned, certify, that Mr. Hezekiah Coberth, “ on the morning of the 28th October, 1841, said in our pre= “sence, that he wished Hr.

On the 31st August, 1838, John Steyer filed his bill alleging, that being seized of a tract of land called “the Plains ofMoab,” contiguous to which it was supposed there was to be found much vacant laud, he did on or about the 28th day of December, 1835, sue out of the land office a warrant to resurvey his aforesaid tract of land called “the Plains of Moabf with liberty to include contiguous vacant lands; that said warrant was shortly afterwards placed in the hands of the…

<p>Appeal from the Court of Chancery, and from a refusal to dissolve an injunction upon motion.</p> <p>The appellee in this case, on the 1st March, 1836, filed his bill on the equity side of Harford county court, praying an injunction and subpoena against the appellant.</p> <p>The bill alledged, that about the year 1815, the late Thomas Hope departed this life, leaving a considerable real and personal estate, and that the deceased made his last will, which haSj been admitted to probat; by the Orphans’ court of said county, by which he devised and bequeathed among other things, one-third of his personal property, after payment of •debts and legacies, to his widow Hannah Hope, the mother of your orator; and bequeathed to three of his daughters the sum of $600 each, and the residue to your orator, and made your orator his executor; all which will more fully appear by reference to a copy of said will herewith exhibited as part of this bill, and marked exhibit A; that your orator obtained letters testamentary from said orphans court on said will, and being residuary legatee, gave bond for the payment of debts and legacies; that the said Hannah, the mother of your orator, being devisee for life under the will aforesaid, of one-third of the farm which was devised to your orator, continued to reside with him after the death of his father, and he cultivated the entire farm under an agreement to allow her a reasonable rent; that sometime after the death of your orator’s father, the said Hannah was anxious to have her share of the personal estate devised to her, and she and your orator agreed that the whole should be valued, and that articles of property at such valuation should be delivered to her, and in pursuance of this agreement, two gentlemen of the neighbourhood, to wit, Abel Alderson and William JYelson were selected, and they valued the entire personal estate left by the father of your orator, at the sum of $3,306.04|; and the mother of your orator being anxious and desirous to have four of the negroes, two of the cows, and a horse, your orator delivered the same to her, although the aggregate value of said articles so delivered, according to the valuation set upon them by the gentlemen aforesaid, and according to their real and fait value, was equal to one-third of the whole personal estate left by the said Thomas, deceased, without any deduction for the legacies left to his said daughters, by which the said Hannah was overpaid her legacy under said will, $600, without making any deduction' for funeral expenses, debts, or the expenses of the administration ; that at the time this was done, and, the said Hannah was so over paid, it was done through inadvertence and mistake by your orator, and your orator is satisfied that the said Hannah was not conscious that she was over paid, she being at the time an old and infirm woman, and as your orator believes, incapable of adding together the value of the articles she received, or' knowing wrhat proportion the amount bore to the value of the whole property. So matters remained, and the mother of your orator continuing to reside with him for several years, when she demanded payment of your orator for the rent of her portion of the farm. When she made'the demand of rent, your orator was fully conscious that he did not owe her anything without reference to the claim arising from over paying her legacy, but the trouble and expense to which your orator had been subjected in keeping her, and her negroes and stock, was more than equivalent to the use and rent of her interest in the land.- The mother of your orator, however, being as before stated, very far advanced in age, and very infirm in body and mind, and being peevish and fretful and incapable of understanding her rights, your orator, in mere indulgence to her caprices, to sooth and comfort her, gave her his three several bills obligatory, two for one hundred and sixty dollars each, and one for two hundred dollars, payable one year after the' death of the said Hannah, without interest, which said bills-obligatory all bear date on the 12th of August, 1822; and your orator expressly charges, that when he gave the said notes, his motives were solely to pacify and quiet his aged? and infirm parent, and not from any consciousness of his indebtedness; and he felt assured too, that the debt would be extinguished by boarding and keeping his mother, her negroes, and stock, for the residue of her life, and with that view he made the notes payable after her death; this arrangement satisfied and quieted the old lady at that time, and as your orator knew it was his sacred duty to take care of and keep his mother, whether she had his notes or not, and as he always intended that she should want no aid or comfort which he could give, he felt little or no concern about the matter. Your orator further shews, that his mother continued to live with him, sometimes as one of his family, and sometimes keeping a separate establishment in part of his house as suited her therein for the time, and sometimes keeping thereon four cowrs and several negroes, all of which was kept and supplied by your orator from the time the said notes were given up to the death of said Hannah, which occurred about the 12th February, 1833; that during the period from the dale of said notes or bills till the death of said Hannah, your orator paid her taxes, and the various items of charge against the said Hannah for boarding hqrself, paying her taxes, and keeping her servants and stock, as will more fully appear by a particular account thereof herewith shewn as part of this bill, and marked exhibit B, which account your orator avers to be just and true. Your orator further shewTs, that during the time the said account was accruing, your orator never urged the said Hannah for any adjustment of their accounts from motives of kindness to her, as she was incapable of settling or adjusting accounts, and any demand made upon her would, in her state of infirmity, have rendered her unhappy; but your respondent was wrell aware that she owed him a large sum of money, but was also under the belief that her property, at her death, w’ould go to indemnify him as far as it was sufficient for that purpose, and if insufficient, it would not place him in any worse condition, in as much as he would have kept his mother, and indulged her in the same manner that he did, if she had had no property at $11. Your orator further shews, that to his surprise he learned? after the death of his mother, that she had assigned the said three bills obligatory to one Thomas Hutchins, of said county, without any valuable consideration, and since the death of said Hannah, the said Thomas Hutchins hath instituted suits on said bills obligatory, and at the August term of Harford county court 1835, recovered three judgments thereon against your orator, as will more fully appear by short copies of said judgments herewith exhibited as part of this bill, and marked exhibit C. Your orator further shews, that at the time the said notes or bills were given, the said Hannah was indebted to your orator in the sum of six hundred dollars, for and on account of the over payment of her legacy by your orator as executor of his father, but that he could not plead this as a set-off to the suits brought on said notes at law, by reason of the character of the claim, it being a claim exclusively cognizable in a court of equity; and your orator also charges, that before he had any notice of the assignment of said notes or bills obligatory, that the said Hannah was indebted to him in twice their amount for boarding and keeping her and her negroes and live stock, and money paid for her taxes, and that he could not on account of technical difficulties, make the said account available as a set-off, in the action at law. Your orator also charges, that the said assignment of said bills obligatory, were made without any valuable consideration being paid for the same by the said Thomas Hutchins, and at the time they were made, the said Hannah was indebted to your orator in a sum greatly exceeding their amount; and also charges, that the said Hannah did not leave property sufficient to pay the claims due to your orator; that your orator is the administrator of the said Hannah, and the estate which came to his hands is insufficient by a large sum to pay her debts. Your orator further shews, that the said Thomas Hutchins, although he knows that nothing was due to said Hannah on said notes, and that the claims on the same had been extinguished thrice over by over paying the legacy as aforesaid, and by the account aforesaid, yet he still threatens to execute the judgments aforesaid against your orator, all which is contrary to equity, and tends to the wrong and injury of your orator in the premises.</p> <p>With this bill the appellee filed the exhibits mentioned in it, with an injunction bond, in the penalty of $1,200. By the short copies of the judgments, one was upon verdict and the other two by default.</p> <p>The county court, (Archer, C. J.,) granted an injunction, which was issued and served.</p> <p>The defendant answered the bill and alleged, that it is true that Thomas Hope, Senior, the father of complainant, departed this life, having made his last will in manner and form as in said bill is stated; that he thereby devised to the late Mrs. Hannah Hope, (his widow who is since deceased,) an estate for life in the one undivided third part of the plantation whereon he resided, and which he devised to complainant in fee, subject to said life estate ; that he also devised to the widow, during her life, the use of part of the dwelling house, and one-third part of all his personal estate, after payment of his debts, (which were very trifling,) and the legacies of six hundred dollars each, bequeathed by him to his three daughters; that he bequeathed the residue of his personal estate to complainant, whom he appointed his executor, and that said will, of which exhibit A is admitted to be a correct copy, was duly admitted to probate, and that the complainant took the whole estate into possession, and gave bond to pay debts and legacies. Respondent admits, that on the distribution of the estate of complainant’s testator, the widow received the specific articles mentioned in said bill, and therein charged to have been delivered to her, but he denies that she received any more in value than her just proportion, or more than she was legally entitled to have. Complainant’s testator died seized of a large quantity of real estate, besides the plantation in which as aforesaid, he devised his widow a life estate for one-third, to wit: the farm devised by him to his son Ezra Hope, containing, &c., and the farm devised by him to his son William, containing, &c., as by the will will appear; in all which she was entitled by law to her right of dower, (provided she renounced all interest under the will,) and also to the one-third of the personal estate before payment of the legacies, so that her interest in the estate of the deceased under the will, was much less than it was independently of and in opposition to it. Mrs. Hope, as this respondent knows and avers, had intended to renounce all interest under the will, and take all that the law would allow her, and in order to induce her to change this determination, complainant, as executor and residuary legatee, did as respondent alleges, offer and agree, that if she would stand to and abide by the will, she should have the one-third of all the personal estate of the testator, before payment of the debts and legacies; accordingly and in order to carry this agreement into effect, Abel Alderson aud William Nelson, the gentlemen mentioned in said bill of complaint, appraised all the personal property of the testator, and complainant delivered over to Mrs. Hannah Hope the articles specified in said bill and charged to have been delivered, with a full knowledge of their real value, and of the proportion they bore to the value of the whole personal estate, and not under any mistake whatever by the complainant or the said Hannah, who was not at that time very old and infirm, and unable to ascertain the value of the property she got, but on the contrary, very well understood her own rights and the responsibility of the complainant to her, and they settled the same as a strict business transaction, and acted upon it as finally adjusted from that time, being not long after the death of her husband in 1815, up to the period of the death .of said Hannah Hope. Eighteen or twenty years have now elapsed since the above mentioned distribution of the estate of Thomas Hope, deceased, was made, and during all that time (until of late,) complainant has acquiesced in the settlement which was made by himself, and never sought or demanded t.o have any part of the property so delivered, or its value returned or refunded, although in his settlement with Mrs. Hope for the rents of her lands, he had frequent opportunities of correcting the mistake, if any such had existed. But on the contrary, he gave her his notes under seal for the full amount of the rent due her, without making any deduction on account of the alleged over-payment of her legacy, and now attempts to #void the payment of said notes by an averment that he never-intended to pay tSiem when he gave them. Respondent submits to this honorable court, whether complainant should be permitted now, after the death oí Mrs, Hope, and without any allegation of fraud, and without having discovered any new fact of which he was not before conversant, to open a transaction on which he has slept for eighteen years, to the prejudice of a third party to the settlement. Respondent claims the benefit of the act of limitations, passed and enacted by the General Assembly of Maryland in the year seventeen hundred and fifteen, and relies upon it as barring forever all demands of complainant for the alleged over-payment to Mrs. Hannah Hope of her legacy, and as also a full bar to the whole of the pretended account exhibited by the complainant with his said bill. Further answering respondent admits, that complainant and his mother, Mrs. Hannah Hope, lived together in the house which was owned by them jointly under the will, and that complainant occupied and cultivated the entire farm, including the part devised to his mother, which was never laid off, but was an undivided third of the whole, and that the three several bills obligatory referred to in said bill of complaint, were given by complainant to Mrs. Hope, in payment of the rent due by him for the use and occupation of her portion of the farm, from the death of complainant’s father to the year eighteen hundred and twenty-one, comprising a period of about six years ; for the twro first of which he allowed her the rent of one hundred dollars per annum, and for the other four years eighty dollars per annum. But respondent denies that at the time of giving said bill obligatory, complainant had any claim or demand against Mrs. Hope for the trouble and expense of boarding and providing for her, (as he alleges in his bill,) or on any other account whatsoever, which he "was then entitled to deduct from the money rent reserved for the use of her lands, or which he can now set-off against said bills obligatory. He denies that any debt or claim for the boarding of Mrs. Hope, has accrued either before or since the execution of said bill8 obligatory, which has not been fully adjusted and satisfied. For -in point of fact respondent says, that the boarding of Mrs* Hope was taken into consideration in the settlement for the rent due her, he having agreed to furnish her with boarding in addition to the annual rent reserved in money, as the consideration for the use and occupation of her lands, and then said notes or bills were given by him for the nett balance due her in money, over and above the expense of her board, and that the said notes were not given as is falsely alleged, to gratify the caprice of a peevish and fretful old woman, but on payment of a just and honest debt, which the complainant then owed to his mother, and sought by all his artifices to reduce and diminish,, as the relinquishment of interest shews, as well as the indulgence in time. As conclusive evidence whereof, respondent begs leave to refer your Honors to articles of agreement entered into between said Hannah Hope and complainant, in-April eighteen hundred and eighteen, at which time the terms on which complainant farmed and occupied her third of the plantation were first reduced to writing, and he herewith files a copy of said articles marked respondents exhibit A, which he prays may be taken as a part of this answer. Prior to this time complainant had rented of Mrs. Hope by parol, and there is no written evidence of their contract. But these articles contain and shew the terms on which the complainant had farmed the premises previously to the year eighteen hundred and eighteen, and in every way correspond with the verbal lease under which he held from the death of the late Thomas Hope, until the. date of these articles of agreement, excepting that the rent reserved in money was then reduced from one hundred dollars per annum to eighty dollars. From these articles of agreement, it appears that complainant was to occupy and farm the whole of the plantation of which as aforesaid, Mrs. Hope owned an undivided third, and was to pay her eighty dollars in money, and was also to furnish her amongst other things, particularly specified, with “house room> flour, meal, meat and fowls, for the use of her table, and a horse to ride on, &c.” And respondent avers, that these articles though only originally intended, as would appear from their face, to have effect for three years, remained as a continuing and subsisting agreement until Mrs. Hope’s death, excepting as altered in some trivial particulars by the writing annexed thereto, bearing date August eighteen hundred and twenty-two, a copy of which is also herewith filed as part of this answer. As regards the boarding of the negroes belonging to Mrs. Hope, with which complainant has charged her in the account filed by him marked exhibit B, respondent denies that it is a just and proper charge, and says,that during all the time for which she is charged with their boarding, these negroes were almost constantly in the employ of complainant, and were used by him as his own; that the value of services rendered by them was far more than equivalent to the expense of keeping them, and if there was an indebtedness on either part in regard to said negroes, it was an indebtedness on the part of complainant for their hire; but as he was her son, Mrs. Hope never made any charge against him for their services, unless she may have taken it into consideration in the final distribution of her property among her children. Further answering respondent says, that he married one of the daughters of Mrs. Hannah Hope, and he admits that in less than a year after the execution of said bills obligatory, she signed and delivered them over to respondent as a gift to him and his wife, without any other consideration than the natural love and affection she bore them, and her wish to make, what she claimed, a fair and proper distribution of her property before her death, and of which said distribution the complainant was not only fully apprised, but as party thereto, and accepting gifts and bounties under the same ; against the fairness of this distribution, the complainant, Thomas Hope, should be the last to make complaint, for, independently of his mother’s right to dispose of her properly as she pleased, respondent avers, that she gave complainant the use of her negroes during her life, without hire, one hundred dollars in money and a valuable horse, and released him from the payment of interest on the bills obligatory, referred to by complainant, from their date until one year after her death. These furnish a fund sufficient to discharge all his fancied claims against Mrs. Hope, and until it is exhausted, he can have nc pretext for demanding payment from her assignees. But respondent denies, that the assignment was made to him without the knowledge of complainant, who, as he avers, had' notice of the fact either at the time or within a very short period afterwards, and less than a year after it was made, and before then, of her intention to make said assignments. ' He denies-the allegation, that Mrs. Hope did not leave sufficient properly to pay her just debts, and states his belief, that she left no debts unpaid except perhaps her shoemaker’s bill, to the1 amount of a few dollars, or some such trifling matter. And he denies and resists the right claimed by complainant in his bill to set-off against or deduct from said bills obligatory, or from the judgments which respondent as assignee has obtained thereon in Harford county court, any debt, claim or demand, which he either has or claims to have against Mrs. Hope, accruing subsequently to the assignment, and respondent refers to the solemn oath of the complainant’s mother annexed to thesaid bills obligatory, as shewing that no just discounts, off-sets- or payments in regard to them, existed at the time of the said assignments. But as a full and conclusive answer to all said bill of complaint, other than and except such parts thereof as relate to the alleged over-payment to Mrs. Hannah Hope of the-legacy bequeathed to her by Thomas Hope, Senior, and complainant’s right to set-off said alleged over-payment against the bills obligatory, referred to in said bill of complaint, and which is itself barred by the statute of limitations and the lapsei of time, herein before relied on as a part of this answer, respondent saith, that he instituted suits at law in Harford county court on the three several bills obligatory, mentioned in said bill of complaint, and at the August term of said court,, in the year eighteen hundred and thirty-five, obtained judgments thereon, and that at the trial of said suits at law, all and singular the matters and things and circumstances in said bill set forth, and on which complainant grounds his prayer for relief in the premises, except, as aforesaid, so much of said bill as relates to Mrs. Hope's legacy, were presented by the' pleadings and issues joined by the parties, and were fully weighed, considered and determined, as by copy of the record thereof herewith filed as part of this answer will more fully appear. Respondent denies, that complainant was prevented by technical difficulties from availing himself of said circumstances as a defence to said suits at law, but on the contrary avers, that all and singular said matters and things, except as herein before excepted, being the pretended claim for over-payment of legacy, were fully brought before the court and jury, and said suits at law were decided, and said judgments were rendered in favor of this respondent, upon the true and substantia] merits of the cases, and agreeably with the law's of the land and the equity and right of the matter. Respondent thereupon submits to this honorable court, whether the said questions having been once decided in suits between the same parties, by a court of competent jurisdiction, complainant can again put the same matters in issue, and whether he is not forever barred of the relief prayed in his said bill of complaint in relation to said matters.</p> <p>The exhibit A, referred to in the answer, was not filed in the Court of Chancery.</p> <p>The defendant filed with his answer a transcript of the record in his action at law against the complainant, upon the complainant’s bond to Hannah Hope, assigned to the defendant, in which the said Thomas Hope had pleaded payment, and account in bar filed ; the plaintiff at law replied, non-payment and issue; account in bar denied, and issue ; limitations to account in bar, rejoinder and issue ; accord and satisfaction to account in bar, general rejoinder and issue. The account in bar filed by Thomas Hope, the defendant at law, wras from 1823 to 1833, for the boarding of Mrs. H. Hope, her servant woman and child, and keeping two cows, taxes, &c., crediting her annually with rent of her land ; and also charged her with $600 over-paid in the distribution of Thomas Hope, Senior’s estate. It appeared by the bill of exception, that the defendant Thomas Hope, at the trial of the action at law, had offered proof that Mrs. Hope was indebted to him in the sum of six hundred dollars for money over-paid her on account of a legacy bequeathed to her by her late husband, of whose will the defendant was executor, and that upon the objection of the plaintiff at law, Thomas Hutchins, to the admissibility of the evidence so offered, it was rejected by the county court.</p> <p>Upon the suggestion of the complainant, this cause was removed to the Court of Chancery, where the defendant moved for a dissolution of the injunction. On the 26th of April, 1841, the Chancellor (Bland) continued it until final hearing or further order. The defendant in equity appealed to this court.</p>

Writ of Error to Baltimore City Court. Indictment against the appellant for an assault and battery, found at February term, 1841, At June term, 1841, the traverser suggested to the court in writing and upon oath, that he could not have a fair and impartial trial in Baltimore city court, and prayed a removal of the record to some adjoining county court.

This was an indictment charging that the appellee on, &c., at &c., “ unlawfully did keep a certain gaming table called a faro table, at which said gaming table, unlawfully kept as aforesaid, the game of faro was then and there unlawfully played for money, against the act of Assembly in such case made and provided, and against,” &c. The traverser demurred to the indictment, in which the State joined, and the county court sustained the demurrer.

This was an action of Covenant commenced on the 18th December, 1838, by the appellant against the appellees. The plaintiff declared, as follows— lsf Count.

On the 5th April, 1837, the appellant filed his bill in Chancery, charging a partnership between his intestate and the appellee, the surviving partner, who took possession of the effects of the partnership, and proceeded to sell the same, collect its debts, compromise and extinguish claims against it; and that a large surplus was in his hands; that the appellee had refused to come to a fair and final settlement, or to render any account of the partnership; that he was in the…

<p>Appear from the Court of Chancery,</p> <p>On the 2nd July, 1833, James A. Magruder and wife filed their petition on the equity side of Prince George’s county court, praying for the appointment of a trustee, to sell real estate under the will of William Beanes, deceased, exhibiting with it the will of the said Beanes. The trustees appointed' by the will were dead. Another trustee was appointed, who gave bond, and reported several sales, which were ratified. The case was then referred to the auditor, who reported accounts, and distributed the balance to John H. Beanes and Melicent Magruder in moieties. This account was confirmed on the 14th November, 1835. On the 11th July, 1837, David Crawford, as trustee of Melicent Magruder, filed his petition, suggesting that she was entitled to certain sums under the said will, and requiring the trustee, John B. Brooke, through whose hands they were to pass, not to pay them over, except to the petitioner. This petition was demurred to, the demurrer overruled, and the trustee in the cause ordered to retain in his hands the amount allowed to J. H. Beanes, out of the proceeds of the property decreed to be sold until the further order of the court. The petition was then answered by the appellant, and the cause removed from Prince George’s county court to the court of Chancery, where, after various proceedings, that court (Bland, Chancellor,) passed the following order:</p> <p>Ordered, that this cause be and the same is hereby referred to the auditor, with directions to state an account from the proceedings and proofs now in the case, and from such other proofs as may be laid before him, shewing how much, if any, of principal o.r interest yet remains unsatisfied or uninvested, of the legacies dqe to Melicent Magruder and others, under the will of William Beanes, deceased. The auditor will observe,, that the proceeds of the sale directed to be made by the testa; tor of certain portions of his real and personal estate, constitutes an aggregate amount of personal estate, which can only pass as such ; and that, so considered, the bequest to Philip Key passes only a life estate to him ; and thence, on the happening of the specified contingency, a similar estate to Melicent Magruder, remainder to her children absolutely; and ponsequently those tenants for life could take no more than the annual interest or dividends of the specified legacy. The Phaqcellor conceives that his opinioq accords with that which must have been the opinion of the county court, as indicated by the decree of the 2nd July. 1833, and the order of the 11th July, 1837, confirming the auditor’s report. Taking this view of these bequests, it follows, that the petition of Philip Key, filed on the 2nd of April, 1831; and the petition of James A. Magruder and wife, filed on the 2nd of April, 1833, with that of David Crawford, as trustee of Melicent Magruder, filed on the 10th of July, 1837, together with the proceeding under each of them, must necessarily be treated as one entire and blended course of judicial proceedings in the same court, in relation to the same subject, to which all who claim any portion of the sum so directed by the testator to be raised by the sale of portions of his real and personal estate, must be considered as having been, and now being parties. From all which it clearly follows, that no one of such parties can have awarded to him any thing, until he has made good all that, the safety of which he had become bound to assure to his co-distributees or co-legatees, so that neither Philip Key, Colmore Beanes, nor John H. Beanes, or either of their representatives, can be allowed to receive anv thing, either principal or interest, until Melicent Magruder has obtained a full satisfaction of her share, or so much thereof as has been in any way lost by the misconduct of James A. Magruder, who, as trustee, must be regarded as an officer of the court, for whom Philip Key, Colmore Beanes and John H. Beanes, were sureties in his trustee’s bond. For although an action at law might have been sustained against them on their bond, yet as it forms a part of these proceedings, and the nature and extent of their liability to Melicent Magruder has been thus placed upon the record, they cannot be allowed here lo clear themselves from it, to her prejudice, or to the prejudice of those who may claim after her. The auditor will further observe, that although it is true as a general rule, that where money is directed to be invested on good security, it cannot be put out on mere personal security of any kind, yet here, as the testator has recognized the propriety of making an investment in stocks, bonds, or other securities, any such securities which had been received by the trustee, James, A. Magruder, may be considered as a proper investment, for which he may be allowed, unless it should appear, that they had been since lost by his misconduct or negligence ; but that he is to be held accountable, as for so much money, for all mere simple contract evidences of debt, below the grade of specialty securities, which have been received by him ; the order of the 10th of April, 1888, as connected with the subsequent proceedings in relation to this matter, not appearing to have been a final allowance to him of any such simple contract evidences of debt as an investment.</p> <p>The parties are hereby authorised to take testimony in relation to the said account, before any justice of the peace, on giving three days notice as usual; provided, that the said testimony be taken and filed in this case in the Chancery office, on or before the first day of January next.</p> <p>The administrator of John H. Beanes, one of the legatees, appealed to this court, where the appellee moved to dismiss the same. The motion to dismiss was argued before—</p>

At this term Pratt, Alexander and Bowie, moved to dismiss this appeal, upon the ground, that the record was not transmitted within the period required by the act of 1826, ch. 200, sect. 6. The motion was resisted by Tuck and Randall for the appellants.

JT. Pindle and wife, praying subpoena against the executors of Stephen Lee,Elizabeth Ann Lee, the appellant, and others. The object of the bill was to procure a distribution of certain slaves, devised by Stephen Lee to his wife for life, remainder to certain of his children, possessed by the appellant at the death of his mother, and for an account of profits and increase.

The bill in this cause was filed by the appellant on the 25th August, 1837, and prayed subpoenas against Walter B. Brooke, Jllexander H. Boteler, and Edward W. Belt, and commenced— “ The supplemental bill of complaint of J. B., shows, that upon a bill of complaint filed in Prince George’s county court as a court of equity, by Lucy S. Brooke, complainant, against Walter B. Brooke, such proceedings were had, that on or about the 27th July, 1830, a decree was passed in the…

The bill in this case was filed on the 6th April, 1835, by the appellant, and alleged, that in a suit in equity in Prince George’s county court, between Lucy S. Brooke, complainant, and Walter B. Brooke, defendant, such proceedings were had that on the 27th July, 1830, a decree was passed for the sale of certain mortgaged premises; that E. M. D. was appointed trustee to make said sale; gave a bond with A. H. B. and E. W. B. as his securities, which was approved and filed in…

The bill in this cause was filed on the 26th September, 1838, by Henry Repp, Senior, Jacob Repp, Susanna Long,.

This was an attachment cause, commenced on the 22nd June, 1841, upon the following proofs : The State of Mississippi, Hinds County, Set: Be it remembered, that on this 2nd of June, 1841, personally appears before me, Isaac R. JYicholson, one of the Judges of the Circuit Court of the State of Mississippi, fully commissioned and qualified as such, William II Washington, a resident and citizen of said State, and made oath on the Holy Evangely of Almighty God, that John T.…

This was an action of debt, commenced on the 3rd January, 1839, by the appellant against James JYaylor of George, and James JYaylor of Isaac, surviving obligors of Charles L. Boteler. The plaintiffs declared upon a bond of the defendants for $1,000, dated 4th December, 1827, payable when thereunto required.

The bill in this cause was filed on the 27th April, 1837, by the appellants, and alleged, that sometime in the year 1832, a certain Richard B. Gardiner, the husband of your oratrix, departed this life without a will; that letters of administration on his estate were granted to your oratrix and William F. Bowling ; that to March term of Charles county court 1835, two suits were instituted by Richard B. Hardey, use of Edward Simms, against your oratrix and orator, W. F. B., as…

On the 1st of November, 1842, the appellants, as the next of kin of Aaron Offutt, deceased, filed their petition in said orphans court, alleging, that they have by their petition filed this day, prayed the court to amend the record in the case of William C. Gott, libellant, against the appellants, respondents, that they may appeal from said decree when the same is amended, or whether the same is amended or not, which petition is now pending and undecided; that they have been…

The proceedings in this case were first commenced in Prince George’s county court, and subsequently removed to the Court of Chancery.

This was an action of Debt, instituted by the appellants on the 1st February, 1841, in the debet and detinet, for the sum of one million of dollars.

This was an action of Ejectment, brought on the 28th January, 1834, by the appellee against Eleanor Ellis, fora tract of land called Penerine. At August term, 1834, she appeared, pleaded not guilty, and took defence on warrant, on which issues were joined. Her death being suggested, the appellant, her tenant in possession, was summoned, and appeared to the action.

This was an action of Covenant, brought by the appellants against the appellees, on the 27th April, 1841. The plaintiffs declared upon the policy mentioned in the bill of exceptions, and the defendant pleaded they had not broken their covenant, with leave to both parties to give any matter in evidence which might be given under any other plea. Errors of pleading were waived.

On the 29th May, 1841, Michael Stillinger filed his bill on the equity side of Baltimore county court, alleging, that on the 6th October, 1840, he sold to William Richardson a lot of ground in the city of Baltimore, fyc., for the sum of $3,560, to be paid one-third in cash, two-thirds in six and twelve months, with interest; that Richardson made the cash payment, and executed his two obligations for the credit payments; that the note at six months is long since due and…

This was an action of debt to recover the sum of $200, brought by the appellees on the 9th April, 1841, who declared, that whereas, on the 1st day of October, in the year eighteen hundred and forty, at the county aforesaid, a certain William Doebaker, and a certain John Crandall, did bet and wager each the sum of one hundred dollars, upon the result of the election of Electors of President and Vice President of the United Slates, in the State of Pennsylvania, to take place…

. This was an action of Assumpsit, brought by the appellant to January term 1840, against the appellee, who pleaded nonassumpsit.