Volume 2 — Harris & Gill's Maryland Reports

The appellants filed their petition, (claiming their freedom,) against the appellee, as administrator with the will annexed of James Corse. The appellee pleaded that the petitioners were not entitled to their freedom, and issue was joined. At the trial the following facts were admitted, viz. That the petitioners were owned and possessed by James Corse on the 13th of January 1824, and also at the time of his death, which, was in October 1825.

Appear from the Orphans Court of Baltimore county. The only question in the ease was, whether or not, in the distribution of the personal estate of a deceased intestate, under the act of 1798, ch. 101, among brothers and sisters, the half blood were entitled to share with the whole blood; or that the same was to be distributed among the whole blood, to the exclusion, of the half blood?

Action of assumpsit. The first count in the declaration stated, that on the 29th of July 1817, in consideration that the plaintiffs, (the appellees,) at the special instance and request of the defendant^, (the appellant,) would lend and advance to Mijah Fenn such sum of money as he should have occasion for, and require of the plaintiffs not exceeding $500, he the defendant undertook and promised the plaintiffs to stand security, and be accountable to them for such sum of…

Ussumpsit for money had and received. The case, as agreed upon, was this: James H. Causten issued an attachment out of Baltimore county court against Monte Verde, for the recovery of a debt due to Causten before the 15th of April 1818, and the attachment was laid in the hands of Peter H. Guestier. At March term 1821, of said court, a verdict and judgment was obtained against the garnishee.

This was an action on the case for slander, brought on the 9th of December 1822.

This was an action of replevin, brought by the appellant, (the plaintiff below,) against the appellee, (the defendant in that court,) for a mare and colt, and certain negro slaves. The defendant pleaded, 1. Non cepit. 2. Property in Barton Hagan. 3. That the defendant had recovered judgment against Barton Hagan, upon which a writ of fieri facias issued, and was levied of his goods and chattels, viz. one mare and colt, and negroes Charity, Rachel Samuel, Henry and George.

) The bill stated, that Sally Jinn Lowry, (late Sally JlniLooris,) the wife of James Lowry, the other complainant, on the iSth of September 1824, they then being single, and contemplating a marriage, and the said Sally Jinn being possessed of, and entitled, to the sum of 08,200, bearing interest at six per cení per annum from the 1st of July 1824, inclusively, payable quarter yearly, being stock created in pursuance of an act of congress, as per certificate, &c. That the…

This was an action of replevin, brought on the 1-ith of September 1816, by the appellee, (the plaintiff in the court below,) against the appellant, (the defendant in that court,) for a slave named Nathaniel. The declaration stated the property of the slave in question to be in the plaintiff as administrator. The defendant pleaded property in herself as administratrix. To this plea, there was a general replication, and issue was joined. 1.

Action of assumpsit for work and labour, Sic. The defendant, (now appellant,) pleaded the general issue. 1.

Mrs. Deborah Sterett on the 28th of July 1812, duly made and executed, according to law, her last will and testament, whereby (among other things,) she gave and bequeathed to her -four daughters, to be held for them in trust for their sole and separate use and disposal by her trustees, or the survivor of them, all the money that might be due to her from her son Charles, at her death, for the land that she had agreed to sell him, except $4000, which she gave to Charles’s son…

This was an action of debt, brought by the appellee, (the plaintiff in the court below,) against the appellant, (the defendant in that couit,) on articles of agreement dated the 2Sth of February 1822, for submitting certain matters to arbitration, &c. The defendant pleaded nil debet, with leave to each party to give the special matter in evidence. A ease stated was agreed upon by the parties; and all errors in the pleadings were released.

Arpear from Baltimore County Court. This was an action of debt upon an appeal bond dated the 25th of October 1816, executed by Thomas L. Savin, and others, with the defendant below, (whose executor the now appellant is,) as one of their sureties, to the plaintiffs, (the appellees,) reciting, that by a decree passed on the 6th of September 1S16, in a cause wherein the said Fulton 4’ Starch were complainants, and the said Thomas L. Savin, and others, were defendants, the said…

This was an action of debt on a bond for the payment of money. The defendant below, (the now appellee,) pleaded payment, and also the act of limitations, in the manner hereinafter stated.

This was an action ot debt, brought on an appeal bond executed by the appellant, and others, on the 5th of February 1822, to the appellee’s testratrix, reciting that Charlton Waltham, and Hester his wife, administratrix of James H. Taylor, for the use of Elizabeth Saunders, obtained judgment in Harford county court at August term 1821, against the said Elizabeth Birckhead, and others, for the sum of, &c. from which judgment the said Elizabeth Birckhead, &c. have prayed an…

It appears that a writ of fieri facias issued out of that court on the 12th of August 1822, on a confession of judgment, by way of supersedeas, entered into on the 1st of May 1820, by the defendants, to stay execution On a judgment rendered at March term 1820, in the name of the plaintiff, against Joseph P. Floyd— which fieri facias was endorsed for the use of William Floyd, and made returnable to March term 1823.

Appear from Prince-George’s County Court. This was an action of assumpsit for work and labour, care and diligence, of the plaintiff, (now appellee,) as a physician, performed for tbe defendant, (the appellant,) on the 25th of November 1821, and a quantum meruit for the like services, &c. The writ was issued on the 6th of August 1822. Non assumpsit pleaded, and issue joined.

Appear from a decree of Calvert County Court, sitting as a Court of Equity.

This cause was argued before Buchanan, Ch. J. and Earle, and Martin, J. and is fully stated by the chief judge,-who delivered the opinion of the court.

<p>To entitle the collector of the county tax to recover in his own right, from a taxable inhabitant,, the amount of his assessment, such collector must show that the taxes placed in his hands for collection, had been paid over to the persons in whose favour levies had been made, or adduce some proof, showing that he had furnished such evidence to the proper tribunal for adjusting his accounts.</p> <p>The circumstance, that an account presented by a collector to the levy court, was by that court, filed in the clerk’s office, is no evidence that the Levy Court adopted it.</p>

into by the defendant, (the now appellant,) as administrator of John C. Steivart, deceased, on the 13th of October 1822. The following case was stated for the judgment of the county court thereon. It is admitted that John C. Steivart died in 1822; that the defendant was appointed his administrator, and gave bond for the faithful performance of his trust.

This was an action of assumpsit. The declaration of the plaintiff, (now appellee,) contained sundry counts. 1. For divers goods, wares and merchandizes, sold and delivered. 2. Quantum, meruit for the goods, &.c. so sold and delivered. 3. For other goods, &c. sold and delivered; and that such goods, &e. were reasonably worth, &c. 4. For money paid, laid out, and expended. 5. For money lent and advanced. 6. For money had and received. 7. On an insimul computassent. 8.

Appear from Dorchester County Court. This was an ae lion of de.tinue, brought by the present appellants, (the plain - tiffs in that court,) against the appellee, (the defendant therein,) to recover sundry negro slaves.

Appear from Kent County Court. This was an action of assumpsit on a promissory note, brought in the name of the surviving payee, (the now appellant,) against the executor of one of the drawers, (the appellee ) The defendant pleaded non assumpsit testutoris, and issue was joined. At the trial the plaintiff offered in evidence the following note: il$G6G 66. Baltimore, 4th May, 1819. Ninety days after date, we promise to pay II.

Arpead from the Court of Chancery from an order of the chancdlor, dissolving an injunction obtained by the appellant. .against the appellee, enjoining him from proceeding on a judgment at law. Motion on the part of the appellee to dismiss the appeal; and it was ruled by the court that the appellant show cause, &c on or before, #c. Before which day the appellant, in person, dismissed his appeal.

Action of replevin for certain negro slaves, brought in the lifetime of the appellee’s intestate, against the appellant. The death of the then plaintiff was suggested, and the appellee, as his administrator, was made plaintiff. The sureties in the replevin bond entered into by the plaintiff before the issuing the writ of replevin, were George G. Jlshcom and John C. Jlshcom. The, defendant pleaded property in himself, to which issue was joined.

This was an action of debt, brought on the testamentary bond entered into on the estate of Kenelm Blackistone, by his executor Deni Blackistone, the defendant, (now appellee,) on the 8th of February 1821. The defendant pleaded general performance.

The plaintiffs In tbo court below, (now appellants,) brought an action of assumpsit against the defendant, (the appellee.) The declaration (having been twice amended,) contained two counts.

This was an action of ejectment for the recovery of two tracts of land called Rotterdam and William and James. The defendant, (the appellee,) took defence on warrant, and plots were returned. 1. At the trial the plaintiff, (the appellant,) produced William Wheeler Lewis, who gave in evidence, that about thirty-five years ago there were some peach trees at the place marked on the plot ®.

Appear from Baltimore County Court This was an action of assumpsit to recover the sum of $552 97, brought by the appellant, (the plaintiff in the court below,) against the appellee, (the defendant in that court.) The declaration contained Jive counts.

This was an action of trover for a negro slave named William, brought by the intestate of the appellant against the appellees. The death of the original plaintiff was suggested, and the appellant, as his administrator, made plaintiff. The defendants pleaded not guilty, and issue was joined.

This was an action of assumpsit, in which the declaration of the plaintiffs below, (now appellants,) against the defendant, (the appellee,) contained sundry counts. Two for sundry matters and articles properly chargeable in account, as by particular accounts thereof, therewith in court exhibited; and the others were the ordinary money counts.

The plaintiff in that court, (now appellee,) brought an action on the case against the appellant, (the defendant therein,) on the 17th of July 1822. The declaration contained two counts — 1.

The bill in this case was filed on the 25th of February 1817, in Baltimore county court, by the appellees, (the complainants in that court,) against the appellant and John Rogers, (the defendants… Held: null and void. It follows therefore, as a consequence of this decision, that an account of the rents and profits should now be ordered, and that directions' should be given, as to the time for which the account is to be taken, and as to the manner of taking it.

<p>A sheriff returned a fieri facias “laid per schedule, and property sold to B for $750. Resold to II for $725, and sale not complied with, and of course on hand.” The schedule showed a levy on several parcels of land— Held, (on the plaintiff’s motion to quash the return,) that the officer might well return those facts, and if they were according to the truth of the case, which prima facie must be presumed, he was certainly justified in .returning them in a special manner, instead of returning in general terms, that the property was unsold, and on hand for the want of buyers.</p>

Appeae from Harford County Court. This was an action of covenant, brought on the 6th of June 1821.

This was an action of replevin for a negro slave. The defendant, (the now appellant,) pleaded, 1. Non cepit; and 2. Property in himself. Issue was joined to the first plea, and the general replication and issue joined, to the second. A jury was sworn at the trial, and after having retired, returned to the bar to give their verdict, when the plaintiff, (the appellee,) being called, made default.

This was an action of debt, brought the 20th of May 1818, against Elizabeth B. Laidler, (the intestate of the now appellant,) on a bond executed to the state on the 23d of November 1815, by her, as executrix of John .Laidler, with Catharine C. Laidler and.Mary Jinn Laidler, as her sureties.

Debt upon the same testamentary bond as that mentioned in the preceding case of Laidler’s Admix, v 'The Slate, use of Haiukins, (ante 277,) brought against Catherine C. Laidler, (now appellant,) one of the sureties therein. This case, like that referred to, was continued for several terms under a rule on the defendant to plead to the declaration; and at August term 1819 the cestui que use filed the same account and proof as stated in the before mentioned case.

Action of replevin for a bay colt, brought by the now appellant, against the appellee, on the 19th of January 1824.

Ejectment for a tract of land called Calvert’s Hope, containing 1000 acres. The defendant, (the appellee,) took defence on warrant, and plots' were returned. The general issue was pleaded. 1.

<p>One partner cannot maintain an action against his co-partners, for work and; labour done on account of the partnership.</p> <p>Where the plaintiff was associated with the defendant and others, in a par» ticular concern not rendering it the duty of any of them to leave their place of residence, and at a meeting of the association, when the plaintiff was not present, it was proposed to employ him, to go to a distant place, to look after the property of the concern; the plaintiff was then sent for, accepted the employment for a fixed compensation, performed the services required, and brought an action of assumpsit against one of the partners to recover the sum' agreed to he paid him. The party sued pleaded the general issue. This agreement was held to be an undertaking on account of the concern; that the same engagement entered into with a stranger, would have been binding on the firm; and that the plaintiff as a member of that firm, must have contributed his proportionate part of the sum contracted to be paid, and, therefore, could not sustain; his action.</p> <p>With respect to debts for work and labour, or other personal services, it is a rule that however special the agreement was, yet if' it was not under seal, and the terms of it have been performed on the plaintiff’s part, and the remuneration was to be in money, it is not necessary to declare specially, snd the common indebilafm count is sufficient — Pe» S-raraxH, Judge,</p>

The petition of the appellee to . that court stated, that on the 23d of November 1818, a decree was passed by the court for the sale of the real estate of Richard Waters, deceased, (the ancestor of the appellants,) and a trustee appointed to make such sale; who, in pursuance of the said decree, sold the said real estate for @4000, which sale was duly reported and ratified by the court at November term 1819, when the auditor was directed to state an account of the said sale,…

The general issue was plead» ed. At the trial the plaintiff, (the now appellee,) offered in evidence, that about the 1st of September 181.9, he was possessed, as owner of the brig called Strong, then lying at Jackson’s wharf in the city of Baltimore, and that there was a stern-boat belonging to the said brig worth $60; and that the defendant, (now appellant,) then was the harbour-master of that part of the port of Baltimore where the said brig lay at her moorings; that the…

<p>Upon a case stated, as upon a special verdict, the court are not at liberty to infer facts from the evidence therein, but the fact relied upon must be stated.</p> <p>Where the defence relied upon, was that the goods replevied were in the custody of the law, and the parties stated a case which showed, that the goods .replevied had been levied on, but was silent as to the time of seizure, or whether at the time of the replevin from the officer who had levied on them, they were in his hands under a fieri facias — Held, that this might be aH true, and still the goods not in the custody of the law.</p>

<p>C and his wife, made a gift of a sum of money to J, their eldest son, which was deposited with W, who undertook the trust of purchasing a tract of land therewith for J’s use. In 1792, he purchased the land and took a conveyance to himself. J diet! without issue, under age, and his rights devolved on his brothers and sisters, the eldest of whom attained the age of 21 in 1805, and died during that year. In November 1815, the heirs of J, the cestui que trust in fee, filed their bill against ’he heirs of W, for 9 conveyance of the land in conformity with his undertaking — 'Held, (the trust having been fully established,) that the lapse of time, between the time of purchase and filing the bill, formed no bar to the proceedings.</p> <p>The cause, however, having been 12 years in the court, from its commence» ment to the final decree, and many of the parties on each side of the docket, having died during that period, the court, under the circumstances, determined to say nothing of the rents and profits received, or the improvements made by the trustee, (who was in possession for a part of the time,) or his representatives; but only to decree a conveyance in fee.</p> <p>The county court, as a court of equity, having expressed an opinion upon the law and facts in the cause, in favour of the complainants’ right; and as they were to be relieved, the only subject was, the extent of such relief. But as in the then stage of the cause, full justice could not be done, in order, therefore, that a final decision should be made— Ordered, that the auditor state an account between the parties, etc. Such account was stated by the auditor. After which that court overruled the opinion before expressed upon the law and facts, and dismissed the bill. On appeal, the appellate court examined the whole case, and decided that the decree dismissing the bill be reversed.</p>

<p>From the earliest period to this time, tobacco has been considered in our judicial proceedings as current money, and actions of debt on bonds for the payment of it, have been constantly brought in the debet and detinet, without averring its value in the current coin of the state.</p> <p>It has been the practice in actions of debt, to join tobacco and money counts, and the invariable course to render judgments in debt for tobacco, and costs in current money, or for costs in tobacco at a fixed and established value in current money.</p> <p>In an action of debt, the plaintiff having, declared on two obligations, one for the payment of tobacco at a given day, the other of money on demand, the defendant craved oyer “of the writing obligatory aforesaid,” and of the writ, (a blank for the insertion of which was left,) and then pleaded the statute of limitations in two distinct pleas, neither of’ which referred expressly to either obligation, and in both of which, the date of issuing the writ was omitted. On a joinder on a special demurrer by the defendant, assigning the above as a cause of demurrer, the court held the pleas faulty in not ascertaining the time of the commencement of the action, nor discriminating between the obligations, to one of which limitations was no bar.</p> <p>When a plea is only' intended for a part of the declaration, the rule is, it must not cover the whole, but ascertain the part to which it is applied, or the plaintiff may demur.</p> <p>Under a rule to plead issuably, such uncertain pleas would be deemed no plea, and the plaintiff might take judgment as for want of a plea.</p>

This was an action of trespass q. c. f. — for breaking and entering the close of the plaintiff, (the appellant,) called Charles and Benjamin. Held: and considered as a part of the dwelling plantation of the plaintiff, until the said sale. That after the said Thomas had cut down the said trees, the plaintiff called upon him to know by what authority he had so cut them, and Thomas replied on the authority of the defendant. The plaintiff replied that was all he wanted to know.

At March term 1822, a decree of the court of chancery was passed in a cause, then, depending in that court, between Andrews and Williams,mmplainants, against Asher Foulke, and others, defendants,… Held: that although the statute requires the party who sues out a commission of bankruptcy to give bond, with surety, to answer to the party who may be injured thereby, it does not deprive the party injured of any remedy at common law, other than upon the bond.

' Appeal from Prince-George’s County Court. On the 7th of May 1816,, the plaintiff in that court, (now appellant,) sued forth a writ of scire facias on a judgment therein rendered at April term 1807, in favour of the plaintiff, against the defendant’s intestate, for $600 damages, and $7 28 costs.

Dorsett, administratrix of Fielder Dorsett, on the 5th of October 1815, with John II Brown and the defendant, (now appellee,) as her sureties. The defendant having been served with the writ, appeared by an attorney of the court, and pleaded general performance of the condition of the bond by the administratrix.

The bill of the complainant (the now appellee,) stated that his testator on the 9th of August 1820 made his last will, and appointed the complainant his executor; that he did in April 1834 institute a suit in Frederick county court against Mary Wolf, (the appellant,) widow of the deceased, for money of which the deceased died possessed, and which the said Mary took and retained from the complainant, and refused to pay over to him as the executor of the deceased.

Cross. Appeals from the Court of Chancery. On the 9th of September 1824, the appellant in the first, and appellee in fbe second of these appeals, exhibited his petition to the chancellor, in which he stated, that in a cause commenced by bill filed in the court of chancery, on the 1st of October 1819, in the names of William W. Conner, John Franklin, and Harriet his wife, Sabritt Tr.ott, and Nancy his wife, against Jlbrali&m Fulhart, and Matilda his wife, Marmaditke W. Con*…

, The indictment was as follows: ‘.‘State of Maryland, city of Baltimore, to wit. The jurors of the state of Maryland for the body of the city of Baltimore, do on their oaths present, that John Cassei, late of the said city, yeoman, otherwise called Thomas Baker, together with Jacob IV.

The bill of the complainants, W. Warner and W. Vance, (now appellees,) stated, that on the 4th of February 1830, having lent to and endorsed for J. and T. Vance divers promissory notes to considerable amounts, which were negotiated for the use and benefit of the said and T. Vance, in consideration thereof, and for the purpose of securing the payment of the said notes, and of other notes which might thereafter be lent and endorsed by the complainants, or either of them, to…

The appellee, (the plaintiff in the court below,) brought an action of replevin against the appellant, (the defendant in that court,) to replevy a negro boy named Isaac, and sundry other personal property, which were replevied and delivered to the plaintiff The defendant being summoned appeared, and by his avowry stated, 1* That, as the bailiff of Henry Shade, he acknowledged the taking the said goods, &c. because the plaintiff for one year, &e. held and enjoyed the premises…

<p>Appeal from the Court of Chancery. This case is sufficiently stated by the appellant’s counsel, and the judge who delivered the opinion of this court.</p>

Appe \l from Charles County Court. Action of trespass for breaking and entering the close of plaintiff, (nowappellee,) called Jordan. The defendant, (the appellant,) pleaded not guilty, and liberum tenementum. Issue was joined to the first plea, and general replication and issue to the second plea. At the trial, the plaintiff offered in evidence the plots and explanations returned under a warrant of resurvey issued for that purpose.

A petition was filed in this case on the 10th of June 1825, by John Palmer, (now appellee,) George L. Frazer and Charles D. Robinson, Jos the sale of part of a tract of land called Foxe’s Hole, being part of the real estate of George Lanham, deceased.

Arpead from the Court of Chancery. On the 24th of March 1812, certain real estate, conveyed to Charles Penn and JOfe* -than Waters, was by the court of chancery decreed to be sold, or so much thereof as would raise the sum of £’934 10 9J, With interest from the 1st of May 1802 till paid, and the costs ’of the suit, and the amount of the trustee’s commission as far as the same could be estimated; and in determining on the quantity of each part to be first sold, the trustee…

<p>Where matter of defence arises after the institution of a suit, it must in ge» neral be specially pleaded, and cannot be given in evidence under the general issue.</p> <p>defences arising after the commencement of the action, should be pleaded puis damn continuance, or against the further maintenance of the suit.</p> <p>When the defendant pleads the general issue in assumpsit, he asserts that at the time of the commencement of the suit, some reason existed, which should have prevented the plaintiff from bringing his action,</p> <p>where in the trial of an action of assumpsit by a chartered company, under the general issue, the plaintiff having given a charter in evidence, E»y which it appeared that Ihe duration of the company ta limited to ?< period subsequent to '.he eoaraioneeuient of tlio suit, yet anterior to the time of trial, the defendant ernnot avail himself of that fact to nonsuit the plaintiff.</p> <p>Under the general issue in a suit by a corporate body, it is necessary for the plaintiff to shew its charter.</p> <p>'Set where such charier h a public law, which judicial iribimafc are bound to notice e.x officio, it is not .mcessnry to give it in evidence to make ouS the plaintiff’s title.</p> <p>A bank charter granted by the governor of one of tne United States, reciting liis authority by the laws of that state to make such grants, and authenticated by the great seal thereof, in the absence of proof that it® Jaws did not warrant, such an exercise of authority on the part of th© governor, is sufficient evidence per se to prove the existence of such bank.</p> <p>Sills of exceptions are no part of the pleadings, and It is alone on the pleadings and verdict, that the court pronounce judgment.</p> <p>The demand of payment of a note, payable at a particular place, by one having it in possession, at such place, and oil the day it fell due, is presumptive evidence of his authority to demand and receive paj’ment.</p> <p>When a note payable at the town of G, fell due on Saturday, and notice oS' Its dishonour on that day was delivered to the endorser a resident at Rs on the ensuing Monday, and no evidence was offered of any mail between those towns on Saturday or Sunday, such notice is sufficient.</p>

This was an action on the case brought on the 27th of March 1822, by the appellants, (the plaintiffs iti that court,) against the appellee, (the defendant in the said court.) The declaration contained four counts.