Volume 2 — Gill & Johnson's Maryland Reports

Appear from a decree of the Court of Chancery. The bill, which was filed on the 11 ill of December, 1821, stated that Dudley Poor, and Deborah, his wife, of the city of Baltimore, being indebted to tho complainants, James Brundige, Thomas Vose, and William Worthington, in a large sum of money; for tho purpose of securing the same, on the 12th day of June, 1819, conveyed to them, by way of mortgage, a lot of ground in the said city, with the buildings, &c. thereon, with a…

) The ease is fully stated in the opinion delivered by this Court. Held: that the remedy at, law was complete, and therefore the complainants could not be allowed to bring their cases into a Court of Chancery. Now in whatever way this case may be considered, either altogether or on any one branch, there are not accounts on each side.

decree of tlie Court of Chancery, dismissing the bill of the complainants, (now appellants.) The bill tiled on the oth of September, 1826, stated, that the complainants for a number of years were engaged as copartners In trade, in the City of Baltimore ; that while so engaged in business, Thomas Tongue and Thomas T. McPherson, of Anne Arundel County, also engaged in trade under the firm of Tongue and McPherson, became indebted to them in the sum of $5009 95, with interest;…

Appeax. from Baltimore County Court. This was an action of assumpsit, instituted on the 21st of April, in the year libM, bj the appellee, (the plaintiff in -the court below,) against the appellant, (the defendant in that court.) The declaration contained counts, for work and labor, and materials found; for use and occupation; for matters proper] y chargeablc in account; for goods, wares, and merchandise; for money lent, and advanced, money had and received; and. on an…

Ejectment for a tract of land called Widow’s Assistance.” The declaration contained a count on the demise of Philip Rogers, the lessor of the plaintiff, on the 1st of February, 1822, for fifteen years. The defendant, the appellee, appeared, entered into the common rule, took defence on warrant, and pleaded not guilty, to which issue was joined. A warrant of resurvey issued, and plots were returned. The defendant took defence for a tract of land called, “ Deep Point.” 1.

This was an action of Assumpsit, by the appellant, Philip Rogers, as surviving executor of Jeremiah Yellott, against the appellee, Ilezeldah Waters, docketted by consent on the 12th of May, 1823. The declaration contained a count on a promissory note for $211 62, dated December 17th, 1804, of which the appellee was the maker, and payable six months after date, to the plaintiff’s testator.

This was an action of Assumpsit brought by the appellant, as trustee of James Williams, against the appellees,, the President and Directors of the Union Bank of Maryland. The declaration contained a count, for goods, wares, and merchandise, sold and delivered; for money paid, laid out, and expended; money had and received; and on an insimul computassent. Non assumpsit was pleaded, and issue.

This was an action of assumpsit, instituted by the appellant on the 15th day of September, 1823, against the appellees, the President and Directors of the Union Bank of Maryland.

This was an action of Replevin brought on the 16th of July, 1823, by the now appellant, against the appellee, for certain goods and chattels, and negro slaves. The defendant (the appellee) pleaded non cepit, and property in himself. Issue was joined to the first plea, and general replication and issue to the second plea. 1.

A petition was filed by the appellees, Henry Siemer and Gesche, his wife, in the Orphans Court of Baltimore County, on the 3d of April, 1827, setting forth, that a certain John Siemer, late of Baltimore county, deceased, a native of Germany, did, when he was about leaving his country for the United States of America, execute a will, in the German language, which, by the order of that Court, was accepted as the last will and testament of the said Siemer, and admitted to be…

<p>An Insurance Company having elected to rebuild a mill destroyed by fire, which they were bound to complete within a reasonable time, contracted with S on the 15th October, 1824, who agreed to rebuild and complete it on or before the 1st June next thereafter, for which he was to be paid “ $800 in hand, and $1000 on the 1st December next, continuing as the work progressed, the payment of $1000 on the first day of each following month, until the 1st July inclusive, provided the work shall then be finished.” On the 16th December, 1824, S drew an order on the Company in favor of the Millwright, which authorised the Company to' retain $750 out of the last payment to be made to him, and to pay it over to the Millwright, as soon “ as he is completely finished, agreeably to his contract.” This order was accepted by the Company. In an action by the Millwright upon the order, it appeared that he had finished his part of the work according to his contract with S — that the owners of the mill were satisfied with the character of his work — that the mill, however, was not finished until January, 1826 — that the Company retained the last $1000, which they were to pay S, to answer a suit which the proprietors of the mill had brought against them, for an alleged violation of S’s contract. Held, that upon the true construction of the order, the plaintiff was entitled to receive the $750 from the Company, only in the event of S becoming entitled to his last instalment, out of which it was to be paid — and that although time is not generally considered to enter into the essence of a contract; yet, in this case, it oughffto have that effect, by reason of the Company’s liability to the assured to rebuild in a reasonable time.</p> <p>In an action against a corporation, the affidavit of the president thereof made for the purpose of procuring a continuance, in another cause than that in which it was offered as evidence, is not competent testimony against such corporation, though the subject matter of the affidavit be pertinent to the issue. He should be sworn as a witness, the defendant being entitled to a cross examination.</p>

Ejectment for a tract of land called the Rcsurvey on Pcmmure, lying in Frederick county. The declaration contained counts on the joint and separate demises of the lessors to the plaintiff, on the 2d of January, 1812, for twenty years. The defendant, Robinson Eastburn, whose heirs at law the appellees are, appeared after his death, and entered into the common rule, and took defence on warrants, and pleaded not guilty, to which issue was joined.

Action of Trover. The declaration stated that the plaintiff, (now appellant) on the 29th of June, 1824, was lawfully possessed, as of his own property, of the lease of two small brick buildings, and one frame building and shed, one steam boiler, &c. and sundry other articles then contained in the said brick and frame building and shed, of great value, &c. and being so possessed thereof, he after-wards, to wit, Sec. casually lost the said lease, and the above recited and…

This was an action of Covenant on a policy of insurance. It is the same case which was before the Court of Appeals at June Term, 1825, when the then judgment was reversed, and the record remitted to the Court below, with a writ of procedendo. 6 Harr, and Johns. 408. The death of the plaintiff below was suggested, and his administrators, (the now appellants,) made plaintiffs, &c. 1.

This was an action of Covenant on a policy of insurance brought by the appellees’ intestate against the appellants-The declaration stated, that the policy was made on the 22d of April, 1820, between the then plaintiff and the defendants, whereby the plaintiff, as well for himself as for' and on account of all and every other person or persons to whom the said did or might appertain, in part or in whole,, did make insurance, lost or not lost, at and from Rio de la Plata to…

<p>By the act of 1766, ch. 14, sec. 2, conveyances to pass an estate in lands for above 7 years, aro required to be enrolled within six months from their date. The enrolling officer is directed immediately, upon the receipt of any such deed, to endorse thereon the time of his receiving it — to enrol it, and, “on the back of every such deed, in a full, legible hand, make a certificate of such enrolment, and the time of making it.” An original deed of that character, cannot be read as evidence of title, without offering proof of the hand-writing of the officer who endorsed it.</p> <p>The common law restrains the assignment of an entry for a condition broken, where, after the forfeiture incurred, the estate may continue ; but it allows it where; the violation of the condition puts an end to the estate of the particular tenant.</p> <p>It is a case of constant occurrence, where a grantor, having a right of entry on land, conveys it to another, and therewith, necessarily, the power to maintain an Ejectment for it.</p> <p>Mere continuance in a possession, which originated under a lease from the Lord Proprietary of this State, created in conformity to the act of 1704, ch. 16, sec. 5, after the reversioner is entitled to re-enter for a condition broken, and before the original term had expired by lapse of time, is not adverse to the reversioner’s right to re-enter, nor will limitations begin to run under such circumstances.</p> <p>Where a possession commenced rightfully, and with the consent of the owner, nothing is to be presumed to make it adverse. Mere holding over, after the term ended, is not evidence of an adverse possession ; and the possessor will be regarded as The tenant at will of the landlord, unless he can show that, since the expiration^of the lease, he has held forcibly, or has acquired a title paramount to that under which possession was originally taken.</p>

This was an action of debt by the appellee, as administrator, d. b. n. of Elizabeth Dent, against the appellants, Joseph Edelen and Nicholas Sloneslreet, as executors of James Edelen, on a single bill, signed by the appellant’s testator, payable to the intestate of the appellee, for $ 1409 86, on demand, and dated on the 20th June, 1812. The defendants pleaded payment, on which issue was taken.

Trespass quare clausum fregil, instituted by the appellees, against the appellant, Thomas Mundell, on the 9th of April, 1818.

The bill in this ease was filed on the 18th of April, 1823, in Baltimore County Court, by Ann Patterson, the appellant’s intestate, against the appellee, James C. Gittings, as executor of James Gittings. Afterwards the proceedings were, at the instance of the complainant, transmitted to the Court of Chancery on the 5th day of October, 1825.

<p>I and P, were joint executors of W, who left a son, for whom I was also appointed guardian. In an action brought by the administrator of that son on the guardian’s bond, against one of I’s sureties, it appeared that many years before the commencement of the suit, the joint executors had received a considerable amount of assets, but had ijot settled any account with the Orphans Court, and that P was dead: Held, that I’s guardianship ceased with the death of his ward, and as it did not appear that he died after P, and after I became sole executor, the action could not be sustained.</p> <p>Where a sole executor sustains the two fold character of executor and guardian, the law will adjudge the ward’s proportion of the property in his hands, to be in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether a final account has been passed by the Orphans Court, or not.</p> <p>But where there is a joint executorship, this construction of law cannot consistently with principle prevail: because his co-executor is entitled to the possession of the assets equally with the guardian, and the property of his ward cannot be legally considered in his hands, until he has' actually received it.</p>

Assumpsit by the Vestry of Port Tobacco Parish, the appellee, against John T. Stoddert, the appellant, instituted on the 7th of March, 1825.

Assumpsit by the holders, the appellants, against the appellee, John Sellman, the endorser of an inland hill of exchange, commenced July 17th, 182G. The general issue was pleaded. At the trial the plaintiffs read in evidence the following bill of exchange: “ $550. Tracey's Landing, August 2d, 1823. Thirty days after date, pay to John Sellman, or order, five hundred and fifty dollars, for value received, and place the same to my account. T. Tongue. Messrs.

This was an action of debt instituted on the 4th day of September, 1823, in the name of the State use of George Mackubin, on the testamentary bond of William Warfield, executor of Thomas Warfield, bearing date on the 5th of April, 1819, against the appellant, James Iglehart, Junior, one of the securities in said bond.

The indictment in the first case stated, “that Samuel Scribner, late of the said city, a dealer in lottery tickets, on the 7th day of May, in the year 1828, with, &c., at, &c., did sell to a certain Nathaniel F. Downing, within this State, a certain ticket, being then and there part of a lottery ticket of a certain lottery, then and there called the Union Canal Lottery, fourth class, for 1828, and then and there numbered 11, 25 and 33, and which said lottery was not then and…

This was an action of debt, brought on the 23d of September, 1825, in the name of the State of Maryland, against Henry Wayman, on the following bond, which was duly certified by the Clerk of the Court of Appeals, to be a true: copy from the original on file in his office. The defendant, pleaded general performance — replication, non-performance and issue. Maryland, set.

<p>Upon a bill being filed to recover the value of certain negroes, which M held in trust for the complainant, and which had been sold through the intervention of an agent who considered himself entitled to the proceeds, it was agreed between M and the agent, that if M would delay settlement and permit the agent to retain the money, and defend the bill, he would indemnify him from all loss. A final decree having passed against M, in an action brought upon bis contract of indemnity, Held, it was competent for the defendant to give in evidence, that he had apprised the plaintiff in due time of the nature of the defence, which he desired should be made to the suit, and of the sources by which he meant to establish it, so as to enable the plaintiff, by resorting to such evidence, to ascertain if he could be justified in putting in such an answer as was desired; and also to show that the plaintiff had failed to comply with his contract, by refusing to permit him to defend the bill.</p> <p>If the defendant supplied the plaintiff with a proper answer, supported by such proofs as would furnish the latter with a reasonable ground to believe the facts stated in the answer to be true, he was bound by the spirit of his contract to have accepted and filed it, or put in answer containing in substance the same defence.</p> <p>Whether such answer was furnished, and such proofs given as would lay a reasonable ground for the plaintiff’s believing the defence set up by the defendant, was a question of fact for the jury, to be determined by an exhibition of the answer and proofs in support of it, as communicated to the plaintiff.</p> <p>If the plaintiff in his conscience could not put in the answer furnished him by the defendant, good faith on his part demanded that he should have pointed out his objections and difficulties to the defendant.</p>

Assumpsit, by the holder, the second endorsee, against the maker of a promissory note, dated March the 10th, 1819, payable four months after dale, for $188 87'. The writ issued on the 31st of July, 1824. The declaration contained a count on the note, and for money had and received. The defendant pleaded — 1st, non assumpsit. 2d, non assumpsit infra Ires annos — and 3d, actio non, tyc. to which issues were taken.

This was an action of Assumpsit commenced on the 28th of June, 1824, by the appellant, Ignatius Davis, against the appellee, Jacob Leab, on a guarantee. The defendant pleaded non assumpsit. 1.

<p>W, in March, 1827, filed a bill against the administrators of H, who died in 182G, for an account and distribution of his personal estate. After the coming in of the answers, and tile cause had been referred to the auditor, the administrators filed with the auditor, as a set off to W’s claim for a distributive share, a mortgage, from her to the deceased of personal property to secure the payment of a debt, containing a covenant for its payment on or before the 1st January, 1810. Held, that the plea of limilations was a bar to this mortgage.</p> <p>By the aet of 1715, eh. 23, the Act of Limitations of this State, the recovery of a debt due by specialty is barred after a lapse of twelve years.</p> <p>It is a settled principle that Chancery follows the law; and acting in obedience to the statute, the plea of limitations is as available in equity as at law, in relation to the same subject matter.</p>

The'bill, which was filed in this case by the appellee, on the 31st of January, 1825, sought to charge the appellants, John Purviance and John 11. Dorsey, administrator of Waller Dorsey, with the sum of §1,233 27, which it alleged the Said John and Waller owed to Selh Barton, the intestate of the complainant.

This was an action of Dower, commenced on the 2d of November, 1825, by James Grimes, and Catharine his wife, (the appellees) against the appellants, John McCauley and others, for one-third part of a tract of land called rt Conococheague Manor,” and of a tract called “ It is admitted that Charles McCauley, deceased, purchased in his life time, the land in the declaration mentioned, from a certain Frishy Tilghman, who, at his request, conveyed the same to his son, Charles…

This was an action of Assumpsit, commenced on the 11th of October, 1825, by Nicholas Watkins of Thomas, (the intestate oí the appellees,) in his life-time against, Joseph N. Stockett the appellant, for the use and occupation of land, and for the labor and services of certain negroes. U pon the death of the said Nicholas Watkins of Thomas, Rachel II. Watkins, and Benjamin Watkins, his administrators, (the appellees) appeared, and were made parties to the suit.

This was an action of Assumpsit, by the appellees, the endorsees, against the appellant, the drawer of a promissory note, for $2500, payable to Wilson, Williamson fy Co. and by them endorsed to the plaintiffs. The action was commenced on the 23d of March, 1826. The defendant pleaded non assumpsit. 1.

<p>K, whose vessel had been, with others, sunk in the harbor of B, in 1814, for its protection from the public enemy, in February, 1821, wrote to C, that “ it would be a source of gratification to me, if your exertions are crowned with that success they so justly merit, and I rest assured, that you will interest yourself equally as much for the T’s (the name of K’s vessel) business, as that of the other vessels entrusted to your management. “ C attended to the claim of the owners of the sunken vessels upon the government for indemnity; and on the 5th March, 1823, K enclosed him an order, (without date) on the Secretary of the Treasury, requesting him to pay C, out of the allowance for K’s claim, which had been retained at the Treasury on K’s account, a certain sum, being C’s proportion of said retained money, as stipulated to be paid him for his services and expenses in collecting the proofs relating to the application of the said vessel to the public defence.” It appeared that in 1817, K had been discharged from .his contracts under the Insolvent Laws of Maryland, and in December, 1821, his trustee agreed to allow C a commission for prosecuting the claim of indemnity for K’s vessel, in the event of his succeeding, provided the Court would permit the trustee so to do. The whole allowance was, however, retained by the government, and passed to the credit of K’s bonds, for duties then unpaid. In an action by C against K, to recover compensation for his services aforesaid: Held, there was evidence for the jury to find a contract between C and K, and they might as fairly infer that it was entered into a little anterior to the letter of 1821, as before the insolvency of 1817. — and that if the plaintiff was to be paid out of the sum to be allowed on account of the vessels, yet if he had been deprived of it by the defendant’s means, the defendant was personally liable— that the United States under the circumstances being authorised to retain the allowance in payment of the defendant’s bonds, their claim being a just one, and the plaintiff having no lien on the fund in the Treasury, the defendant still remained liable.</p>

This was an action of debt, instituted by the appellants, on the 26th of March, 1825, against the appellee, James P. Boyd, as one of the sureties in the testamentary bond of Margaret MlMechin and William M‘Mechin, Executors of David M‘ Mechin, bearing date July 21st, 1810.

This petition, which was filed on the 27th October, 1826, by the appellants, stated, that certain taxes due to them for the year 1821, upon certain real estate in the city of Baltimore, (and which was then in the hands of a receiver, appointed by the Court of Chancery, in the case of Hannah K. Chase, against the appellees,) amounted to the sum of $ 156.

Ai’pioal from Baltimore County Court. This was an action upon the case, brought upon the 26th of January, 1826, by the appellants, John Davis and others, constituting the firm of David Barnum Co. against John II. Barney, the appellee. The declaration contained three counts.

A fieri facias issued in this case, returnable in June term, 1839. At that term a motion was made on the part of the plaintiff, for a rule on the sheriff of Anne Arundel county, to whom the said writ was directed, to return the same, the said sheriff having failed so to do.

<p>A proved a settlement with C on the 1st March, 1820, shewing a balance due him of $1013, for building certain houses. C, under notice of set-off, established payments to the amount of $195; and to shew that A had no separate right of action, proved that he wás a- partner in two firms, one of which furnished the bricks, and the other did the brick work of the houses, and both of which rendered accounts in 1818 and 19-, amounting to $2850, for their respective claims. He also proved various receipts, during the same years, of the individual partners of those firms for payments made to them — some on account of such buildings generally — some for bricks, — some for brick work, amounting in the whole to $1310. A then offered to prove by one of his former partners, that his firm was dissolved about the close of 1819, and its debts assigned to A. The county court admitted the witness, and held that the settlement in 1820, was evidence of C’s-knowledge of the dissolution of that firm, and the transfer of its debts to A; hut no evidence of the dissolution of the other firm being given, that court also decided that the whole evidence did not furnish competent proof of any balance being due to A individually. Upon appeal, held that this was a question of fact for the jury.</p>

The bill of the complainant, Allen Thomas, (the present appellee,) which was filed on the 3d of July, 1826, stated, that William Gwynn, (the appellant,) and the complainant, were entitled to a tract of land lying in Anne Arundel county, called “ The Valley of Owen” as tenants in common, and being so entitled, the complainant for the purpose of acquiring a title to the whole tract in severalty, contracted with the said Gwynn for the purchase of his moiety of said tract, for a…

This was an action of .Debt, on an appeal bond, dated May 2d, 1S09, executed by the appellant, Peter A. Karthaus, on an appeal from a judgment in favor of the appellee, James Owings, as plaintiff in a replevin suit in Baltimore County Court.

The bill filed on the 16th of October, 1823, by John Sprigg against Robert Lyles and Juliet his wife, and Richard Lyles, stated, that the said Robert, being indebted to the complainant, in the sum of $2000, with interest from 21st July, 1817, for the purchase money of several tracts or parcels of land, sold by complainant to the said Robert, executed, together with his said wife Juliet, a mortgage of said lands to complainant, on the 3d December, 1819, for the purpose of…

<p>An action instituted by L, upon a single bill payable to “L, executor of B,” is an action in his own right, to which a debt duo from him may be pleaded, and proved as a set-off; and he cannot go into evidence of the consideration of the bill, to shew that it was given l'or a debt due B, in order to exclude the set-off as due in another right.</p>

In this case, a bill was filed on the 10th December, 1825, by the appellee, Otho B. Beall, as administrator of Richard B. Brashears, against the appellants, William Wells of George, and Jemima, his… Held: occupied, and enjoyed by the appellants, William Wells of George, and Jemima his wife. That no part of said rents had been paid the complainant’s intestate, in his life time, or to his administrator since, but the whole amount is now due.

The bill which was filed in this ease by the appellees, Otho B. Beall and Mary his wife, on the 10th of December, 1825, against William, Wells of George, and Jemima his wife, the present appellants, and William Wells, executor of Jacob W. Brashears, stated, that some time in the year 1797, a certain John W. Brashears oí Prince George County died, leaving five children; one of whom, Richard W. Brashears, the former husband of the complainant Mary, died in the year 1806,…

This was an action of Assumpsit, brought in Baltimore County Court on the 16th of September, 1815, in the name of John Price, (the appellant’s intestate,) against Nathan Tyson, (the appellee’s intestate,) and on the suggestion, &c. of the defendant, was transferred to Harford County Court, to March term, 1817. At August term, 1817,’the whole matter in dispute between the parties was by consent, referred to Lemuel Taylor and Robert Barry, in the usual manner.

This was an action of covenant upon a charter party of affreightment entered into on the 27fh July, 1822, between the plaintiff, now appellant, agent of the owner of the schooner Independence, and the defendant, the appellee, freighter of the said schooner.

This was an action of Trover, instituted on the I5th February, 1836, by the appellees, James Smith, as administrator de bonis jion cum testamento annexo, of William W. Haslett, against the appellant, Elias Glenn. The case has already been before this Court, and will be found in 7 Harr, and Johns. 17. The defendant pleaded not guilty, and actio non, §c. to which there were issues. 1.