Volume 2 — Gill's Maryland Reports

This was an action of ejectment, commenced on the 25th March, 1835, to recover all those tracts of land called 1 st Exception.

This was an action of Replevin, commenced on the 8th February, 1843, on the following warrant: Howard District or Anne Arundel county, to… Held: of which the following is a copy : “ July 30, 1842. The twelfth annual meeting of the taxable inhabitants of primary school district No. 30, Howard District, A. A. county, convened, and on motion, George Ellicott was called to the chair, and McLane Brown appointed secretary. On motion, the secretary read the trustees’ annual report.

This was an action of Trespass upon the case, commenced on the 21st December, 1839, by the appellees against the appellants. The declaration of the plaintiff alleged : 1st Count.

This was an action of Debt, commenced on the 13th January 1840, upon the bond of the appellants, executed 18th September 1838, with condition that Walter W. and Henry M. Hannon, should well and truly perform the office of executors of Walter W. Hannon, senior, late of Charles county, deceased, according to law.

Mary's county court. This was an action of Debt, commenced on the 25th June 1839, by the appellants. The plaintiffs declared on the bond of Mary E. Ford, and the appellees sealed on the 14th June 1836, with condition the that said M. E. F. should perform the duties of administratrix of Ignatius Ford, deceased.

This was an action of Debt, commenced on the 13th March 1828, by the appellee on the bond of the appellants, dated 29th December 1835, with condition that J. B. L., as sheriff of Charles county, should discharge the duties of that office.

This was an action of trespass upon the case, brought on the 18th May, 1842, by the appellant against the appellee. The plaintiff declarer! upon the sale of the house, &c., and the agreement of the defendant to take the property back, and a special assumpsit to repay, as mentioned in the bill of exceptions. The defendant pleaded non assumpsit, on which issue was joined. The verdict was for the plaintiff.

Mary's County Court. This was an action of debt, commenced on the 19th September, 1839, by the appellants, who declared upon the bond of the appellees, dated the 12th March, 1835, containing the following recital and condition: “ Whereas the above bound Garret Burke hath obtained his discharge from the common jail of St. Mary's county, by virtue of the provisions of an act of the General Assembly of the State of Maryland, passed at November session, eighteen hundred and…

The bill in this cause was filed on the 27th January, 1841, by Elisha Berry; Robert W. Brooke and Mary Ann, his wfe ; Louisa, William, JYancy and Eliza Berry, (the three last named being infants,) and alleged, that the said E. B., who is the father of all the other complainants, except the said R. W. B., being seized and possessed of considerable property and estates, both real and personal, lying, &c.; and being naturally of a feeble and weak mind and intellect, and…

The bill in this cause, which was filed on the 28th November 1838, by the appellee, alleged, that he is the owner in fee simple of a tract of land situated at the intersection of the Washington Branch of the Baltimore and Ohio Rail Road, and the turnpike road between Baltimore and Washington, at a place called Beltsville; that upon the said tract of land he has a house and improvements, occupied and used as a tavern stand, the value of which mainly consists in its being a…

The bill was filed by the appellee on the 9th October 1832, and alleged that John R. Plater, on the 30th November 1817, sold to a certain John Darnall, a part of a tract of land called “Great Elkton Head Manor,” containing 988| acres, more or less, at and for the sum of 9 per acre, as per exhibit A. That J. D. paid a part of the purchase money, and died. The appellants were his personal representatives.

This was an action of assumpsit, for goods sold and delivered.

The bill, in this cause, was filed on the 14th June 1842, by Thomas Keller, sheriff of Washington county, and alleged, that a judgment was rendered in W. county court, at March term 1839, against a certain Abraham Barnes and Melchior B. Mason, in favor of a certain David Ridenour, for, &c., which judgment, was afterwards entered to the use of Lot Ensey and Christian D. Fahnestock, late partners, trading under the name and firm of Lot Ensey and Company, who became, and are…

(See this case reported in 12 Gill § John. 285. December 1841.) At this court, the appellees moved to dismiss the appeal, which had been brought up under the act of 1843, chap. 343, viz : “An act for the relief of Jonathan Prout and others.

This was an action of assumpsit, commenced on the 12th October 1842, by the appellees, partners, trading under the firm of Etnyre and Besore, against the appellant.

The bill, in this cause, was filed on the 13th October 1839, by Peter, Daniel, and Frederick Bell, of, &c., children and administrators of Frederick Bell, late of Washington county, deceased, and alleged, that on or about the 1st February 1820, Daniel Berger being seized in fee of the lands, &c., hereinafter mentioned, proposed to mortgage the same to the said Frederick Bell, deceased, to secure a certain claim which the said deceased at that time, had against the §aid…

The appellees in their bill alleged, that Caspar Mantz, being seized and possessed of a large real and personal estate, did, on the 29th August 1832, publish his last will and testament; and about the 29th October 1839, died without having revoked, or in any manner altered or changed his said will.

This was an action of ejectment, brought on the 19th April 1841, by John Doe, lessee of the appellants.

This was an action upon the case brought to the April term, 1841, of said court, by the appellee, against the appellant, to recover damages for diverting a rivulet out of its ancient channel, through the land of the plaintiff, whereby the plaintiff was deprived .of the use, &c. The defendant pleaded non cul., on which issue was joined. 1st. Exception.

The bill, in this cause, was filed on the 16th February 1838, by the appellant, praying subpeena against Elizabeth Mitchell, claiming a discovery and account of the rents, and profits, and proceeds, of certain real and personal property, devised by Francis J. Mitchell, father of the complainant, and James D. Mitchell, testator of said Elizabeth Ji., to James D. Mitchell, in trust for Sarah E. Mitchell, and for an annuity under the will of James D. Mitchell.

On the 5th March 1844, the appellant, a minor, appeared in the Orphans court and prayed to have a guardian appointed, and asked to have Richard Barnes, esq, one of the justices of the said court, to be appointed, who retired from the bench.

This was an action of replevin, commenced by the appellee against the appellant, on the 4th September 1843, founded on the following warrant, viz :… Held: and this the said plaintiff is ready to verify; wherefore he prays judgment, &c. 5th. That on the 29th July 1843, there was no legally organised school district meeting, authorised and empowered to vote a tax on the inhabitants of said district, and this the said plaintiff prays may be enquired of by the country, &c. 6th.

The bill in this cause was filed on the 5th July 1841, by the appellant against the appellee, and alleged, that John Hoye of Allegany county, being seized of a tract of land in said county, called Flavia, held under a patent from the State, bearing date on or about the 7th September 1838, and one other tract called Rotunda, contiguous to which your orator supposed there was some vacant land, he did on or about the 5th September 1839, sue out a warrant to re-survey his…

This was an appeal from an order, dissolving an injunction. The bill was filed by the appellant, on the 22nd April 1844, and alleged, that about the month of December 1839, James Tongue, then of Calvert county, now deceased, purchased of John Parran, a tract of land, lying therein, called Elhton Head Manor, containing about 1231 acres, for the sum of $8000j that the said land when so purchased, was covered with large quantities of valuable timber and wood, with the proceeds…

<p>Upon the back of the notes of a corporation under its seal, payable to the order of K., he and (?., endorsed their names, over which D., an assignee for value, wrote as follows j “For value received, we jointly and severally promise Z>., to pay him the amount of the within, should the Company make default in the payment thereof.” On proof that the Company gave the notes in the course of their business, and G., their debtor, credit in account for their amount, demand of payment from, and refusal by the Company, and immediate notice to G., in an action of assumpsit by D. against C., Held, he was entitled to recover.</p> <p>The right of action was not on the sealed instrument, but on the endorsement, a collateral or distinct contract.</p> <p>Upon negotiable paper, the holder can only write over the signature of the endorser, such an endorsement as conforms to the nature of the instrument, viz : to point out the person to whom the bill or note is to be paid, •</p> <p>In actions upon notes not negotiable, the intention of the parties is to be considered, and effect is to be given to that intention, if no rule of law is violated.</p> <p>When a defendant, for a valuable consideration, agreed to become, and by endorsing a note or single bill, not negotiable in point of law, designed to become security for the money expressed in it, he is responsible for its payment.</p> <p>^Parties to contracts are assumed to know the liabilities imposed on them by the law, and juries are not from evidence to infer, their ignorance of such liability.</p> <p>Where a corporation executes a note which its charter does not authorise, the payee may, for value, stipulate with a third party that it shall be paid, and will not then be permitted to urge the invalidity of the Company to make it. Ho was capable to bind himself to pay the debt, if it should not be paid at maturity</p> <p>The rule of Baltimore county court, which requires that the whole testimony intended to bo produced by plaintiff and defendant shall he offered, before any question of law is raised, except objections to the competency of testimony, is such a rule as that court has power to make.</p> <p>When a party fails to offer any evidence, at the time he ought to have offered it, under the foregoing rule, this court will not assume that it was then out of his reach, or was afterwards discovered.</p> <p>The observance of such rule may he dispensed with, by consent.</p>

This was an action of debt, brought on the 8th February 1839, by Jane Dinsmore and Thomas H. Gillispie, administrators of Samuel Dinsmore, late of Harford county, deceased, against Jeremiah Bennington, in a plea that he render unto them the sum of $66.42, which he unjustly detains from them, &c. Another writ, like the first, was sued out same term, and both were returnable to the 3d Monday of May 1839.

This was an action of trespass upon the case, brought on the 25th November 1842, by the appellee against the appellant, who declared, that whereas the defendants, on the 1st January 1842, to wit, at, &c., were indebted to the said plaintiff, as one of the collectors of taxes for Harford county, duly appointed by the board of commissioners of said county, in the sum of $125, for taxes due the plaintiff, as collector as aforesaid, and being so indebted, they, the said, &c. The…

On the 29th February 1840, the appellee filed her bill, alleging that she was the widow of John Frey, deceased.

This was an attachment commenced on the 9th October 1840, by the appellees against the appellants, upon the following contract of insurance, viz : “Policy No. 31. Insured $3,500. Baltimore, 11th November, 1837.

This was an action of assumpsit, brought to September term 1844, of said court, by the State against the appellant, as collector of State taxes for the city of Baltimore, for money collected. The defendant pleaded non assumpsit.

On the 25th March 1841, the appellant, by her next friend, Thomas Tyson, with others, filed their bill in Chancery against the appellees, praying a sale of certain real estate. After answers filed, on the 18th May 1841, the Chancellor decreed a sale of the property for such part of the purchase money in cash and on credit, as the trustees appointed by the decree should decide upon.

1st Exception. At the trial of the cause, the plaintiff offered proof, by Lerew, that Mr. Charles Rogers said, he would not pay for any work done for him, unless he, or his partner, sent a written order, or came himself; the witness said he never saw any written order from Mr. R., or Marfield, he generally saw Mr. R. there, mostly, every day, which might be the reason he saw no orders.

Cross appeals from Baltimore County Court. This was an action of assumpsit, brought to May term of Baltimore county court 1842, by J. and G. Henderson against William E. Mayhew and others. The plaintiffs declared for goods sold and delivered, &c., and the defendants pleaded non assumpsit. The jury found a verdict for the defendants.

This was an action of assumpsit, commenced on the 31st December 1839, by the appellees against the appellants. The plaintiffs declared, The defendants appeared and pleaded the general issue. The jury found a verdict for the plaintiffs, $3,437.70, on which judgment was rendered. At the trial of the cause, the plaintiffs offered in evidence the following proposal for insurance, accompanied by the letter of John 1.

<p>Where the plaintiff’s demand is set forth in a general count, as for money lent, &c., the defendant may, at any time, before he has pleaded to the merits, call on the plaintiff to exhibit the particulars of his claim.</p> <p>After pleading to the merits, it seems to be too late to object to the want of a statement of the particulars of the plaintiff’s demand, or that the same is defective.</p> <p>At the term to which an action was brought, the defendant demanded a bill of particulars, which the plaintiff furnished; several terms afterwards, the defendant pleaded the general issue; at the next term, when the cause was called for trial, the defendant excepted to the sufficiency of the statement. This objection came too late.</p> <p>The motion, to direct an amendment of a bill of particulars, filed in due time, made after plea, pleaded to the merits, at the trial term, is addressed to the sound discretion of the court; and therefore is one from which an appeal does not lie, any more than it will on a refusal to grant a new trial.</p> <p>Where parties submit matters in controversy, for the purpose of a final determination, and the arbitrators make an award, the original contract or cause of action is merged by the submission and award; and there is no distinction, in this respect, between submissions by parol, and by bond.</p> <p>There is a distinction between a submission by parties to the judgment of two or more individuals who are to decide the controversy, and a reference of a collateral, incidental matter of appraisement, or calculation, or the submission of a particular question, forming only a link in the chain of evidence, not calculated to put an end to controversy.</p> <p>The recital in a mortgage executed and delivered by R. to G., that he stands indebted to G. in a large sum of money, for advances, the amount of which is to be ascertained upon examination of their accounts by J. and M., mutually appointed by R. and G„ for that purpose, is a reference of a mere matter of calculation, and ascertainment as to the amount of money advanced; an ascertainment in conformity to such recital does not merge the original contract.</p> <p>An ascertainment of the amount due, under such circumstances, is competent evidence, in an action of debt brought by G. against R., for money lent, advanced, had, and received, under the plea of nil debet, as an admission of the defendant of the amount due the plaintiff.</p>

This was an action of debt, brought to May term 1842, by the appellee. The declaration assigned a breach of the condition of a bond of Robert R. Richardson, dated 22nd January 1821, given as a trustee of the Court of Chancery, under a decree to sell certain real estate. The defendant pleaded nil debet.

This was an action of assumpsit, commenced on the 1st September 1840, for money had and received, by the appellee, for the use of the appellants. The defendant pleaded the general issue. Before tho jury was sworn, the parlies agreed, that the action was brought for the purpose of trying the following questions. 1st. Whether the wharf in the city of Baltimore, known by the name of Oliver’s wharf, or any, and if any, what part of it is a public wharf? 2nd.

This was an action of assumpsit, brought on the 3rd June 1841, by the appellants against the appellee. They declared upon the common counts, to which the defendant pleaded the general issue. The plaintiffs, to support the issue on their part joined, offered in evidence to the jury, that on the 3rd day of March 1841, they had sold and delivered to the defendant, a quantity of segars, to the amount of $494.25.

Appeals from Cecil County Court. The first appeal was in an action of trespass, q. c.f., brought on the 19th October 1835, by the appellee against the appellants, for a trespass upon a tract of land called “Dividing.” Upon the motion of both parties, a warrant of re-survey was issued, and the defendants pleaded non cul. The jury found a verdict for the plaintiff David Brown. 1st Exception.

On the 7th January 1845, the appellants filed their bill alleging, that a certain John F. Wilson, recovered a judgment against your orators, in, &c., at, &c., for the sum of $1500, &c.; that the said judgment was obtained upon a noffe, given by said John Hardesty to said J. F. W., with Matthew Hardesty as his security, for the purchase of a tract of land called “Sandy Point,” and for which he, the said John, bargained with a certain Zachariah McCeney, but understanding that…

This was an application for a writ of Mandamus, upon the petition of the State.