Volume 2 — Maryland Reports

This case is brought up by an appeal from a decree of the chancellor. The original parties to the suit were Moses Potter and Edward M. Kerr. The former filed his bill against the latter on the 8th September 1846.

This is an appeal from Washington county court, in an action on the case, against the appellant, late sheriff of that county, for a false return. The defendant pleaded actio non accrevit, <§rc., and to this plea the plaintiff demurred. The County court sustained the demurrer, and from that decision an appeal was prayed.

18th March 1843, the appeUant filed his bill of complaint in the court of chancery, asking a sale of mortgaged premises, for the payment of a claim which he had against Shipley, one of the appellees. The bill charges, that about the 7th May 1841, James Shipley, through the ag .ncy of Thomas Lister, purchased of the complainant lumber, for erecting a house at Ellicotts Mills, in Howard district.

THIS was a petition for freedom ; the petitioner claiming her freedom by reason of Her being a descendant from a free white woman. ¡ At the trial of the cause the following bill of exceptions was taken.

This is an action of assumpsit, brought by Schuberth against Bull, under the following circumstances, on December 26th, 1843. Bull being an eminent performer upon the violin, and Schuberth, a music dealer of Hamburg, in Germany, they agreed to make a musical tour through the United States, and accordingly executed a written agreement to that effect on the 10th of October 1843.

<p>EJECTMENT for two tracts of Land, called Salsbury, and Austin’s Delight, both lying in Washington county.</p> <p>It appears from the bill of exceptions, that the plaintiff, at the trial of the cause, produced to the Court, and offered to read in evidence to the Jury, a deed of bargain and sale, dated the 23d of September, 1778, setting forth to be “ between Jeremiah Warder, of the city of Philadelphia, merchant, of the one part, and Joseph Sim and Thomas Sim Lee, of Prince George’s county, and state of Maryland,” for the two tracts of land in question. To which deed was the following acknowledgment, viz.</p> <p>“ Maryland,. Cecil county, to wit: Be it remembered, that on the 24th day of September, 1778, Jeremiah Warder appeared before us the subscribers, two of the Justices of Cecil County Court, and acknowledged the.. ■within instrument of writing to be his act and deed, and the lands and premises therein mentioned, to be the right and estate of the within named Joseph Sim and Thomas Sim Lee, their heirs,” &c.</p> <p>To which was annexed a certificate of the clerk of Cecil County Court, that the subscribers to the acknowledgment were Justices of Cecil county.</p> <p>And it was proved, that the grantor, Jeremiah Warder, at the time of executing the deed and making the acknowledgment endorsed on it, was a subject and inhabitant, and resident, of the state of Pennsylvania; and it was also proved, that the said Jeremiah Warder, at the time of the executing and acknowledging of the deed, was personally present in Cecil county; and that he acknowledged the same in Cecil county, before two magistrates of the said county, and that the lands mentioned in the deed, lie in Washington county. The defendant’s •counsel objected to the reading of the said deed in evidence to the Jury.</p>

EJECTMENT for all that tract of land called Cole’s Harbour, lying in Baltimore county, containing 350 acres. The defendant took defence for Lunn’s Lot. The Jury found a verdict for the defendant. At the trial of the cause nine bills of exceptions were taken. First exception.

This was an attachment, issued 19th May 1851, upon a judgment by a justice of the peace, in favor of the appellees, and which, on the same day, was laid in the hands of the appellant, as administrator of Swann.

This, is an appeal from Baltimore county court. The suit was instituted by the appellees, to recover from the appellant a sum of money, claimed as the amount of compensation due them for their agency in effecting a sale of some property, known- as Eastern Fountain, in the city of Baltimore; the same being the amount which defendant agreed to pay them. The declaration contained various counts, but concerning the suitableness of some of them to the case, no question was made.

<p>.Instance of a prayer made to the court liable to the objection, that it took from the jury a fact which was to be found by them, and cannot be assumed by the court.</p> <p>Whether a wharf, in the city of Baltimore, was a public wharf, or not, is a question of fact, which the court ha3 no right to take for granted, although the testimony, if credited, may seem clearly to establish it.</p> <p>The cases of Regan vs. Gaither, 11 G. Sf J., 479, and Grove vs. Brien’s Exc’r, I Md. Reports, relied on as explaining the law.</p>

This is an appeal from Anne Arundel county court, in the case of a petition for freedom, filed ll.th. August 185Í. The appellee is the daughter of Caroline, named in the will of Ignatius Bright, and claims to be entitled to her freedom under that will.

This appeal was taken from a decree of the orphans court of Charles county.

<p>THIS was an ejectment for a tract of land called fiar wood, lying in Anne Arundel county.</p> <p>It appears by the special verdict found in this case, that Abel Brown, the grandfather of the lessor of the plaintiff, was seised of the tract of land in question, and being so seised, some time in the year 1698, he executed Ms last will and testament, in which was contained the following devises :</p> <p>“ I give and bequeath unto my dear and well beloved son, Robert Browne, and to the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland or elsewhere, (to say,) all that tract or parcel of land whereon I now live, called and known by the name of Harxvood, situate, lying or being, in or near Road River, in Anne Arundel county, which is laid out by survey to contain 150 acres, be the same more or less. But if my said son Robert Browne shall die without heir or heirs of his body lawfully begotten, then it is my will and desire, that Samuel and James Browne, the sons of my brother James Broxvne, who dwelt in the island of Bermuda., may have the aforesaid tract of land called Harwood, to them and their heirs, male or female, for ever, equally to be divided into two parts, that is, one moiety to Samuel Browne and his heirs, and the other moiety to the said James Browne and his heirs ; and for want of heirs male, then to females, or their or her heirs lineally descended, to the longest living heir or heiress of that my said brother James, his female heirs or issue. And likewise I give and bequeath to my son Robert Browne, his heirs and assigns for ever, all my tract of land called Abel's Lot, lying in Baltimore county, near Bush River, containing by survey 300 acres, more or less.”</p> <p>After declaring his debts to be paid, the testator says, il And as for all other my personal estate, goods and chattels, I hereby clearly and absolutely give and bequeath unto my said son Robert, that is, all of my personal estate that shall be found in this province of Maryland or elsewhere, after debts paid and funeral charges defrayed as aforesaid, the remainder to be to my said son Robert, his heirs, executors, administrators and assigns, and to his and their only proper use and behoof, j,y t0 disposed of as to him shall seem good and requisite after my decease.”</p> <p>■ “ And my will and desire is, that if my said son Robert Browne shall or do die the death before he is married, or before he cometh of lawful age to dispose of the aforesaid estate lawfully which I have here given and bequeathed to him, or if he should be suddenly taken away out of this mortal life without wife, issue, or will, that then all and singular the before-mentioned personal and real estate, to my said son Robert bequeathed, shall fall, go, and be to, and for, the proper use and behoof of my above-named brother Ja?nes Browne, his children Samuel and Raines Browne, and their issue, or the issues of that family as above meant and expressed, on lineal descent; and it is my will and desire, that if my son Robert should marry before he cometh of lawful' age, and should have no issue by his said wife during his nonage, and should die and depart this world before he is of ripe years to dispose of his land before bequeathed, that shall not hinder his said wife (if at such time any he hath) from her peaceable enjoyment of the said personal estate before given, neither from her lawful dowry in the before-mentioned lands, and during her natural life, any thing in this my last will and testament to the contrary in any wise notwilhstanding.”</p> <p>The testator appoints his son Robert, “ his whole and. sole heir and executor, to pay just debts,” &c. and after the death of the testator, “ the aforesaid' given lands, premises, into his hands, possession and management, to take, and without any removal or change of property to be máde, the same to have, hold, possess and enjoy, and according to his discretion the same to husband and manure, to Iris and for his own use, property and inte-» rest and advantage, at his will and pleasure, except what is before excepted.”</p> <p>The testator died seised of the land in question, some time in the year 1702, when, in virtue of the said devise, Robert Browne the devisee, entered and was seised of the land, and on -the 8th of December, 1719, conveyed the same in fee-simple to fames Mount, who died in the year 1763, having first devised the land to the defendant and his heirs.</p> <p>Robert Broxvne, the devisee mentioned in the will, died in the year 1769, leaving Abel Browne the lessor of the plaintiff, his eldest son and heir at law, who in the year 1773, entered upon and made a demand of the said tract of laud of the defendant, claiming the same to him and the heirs of his body, under the will of his grandfather.</p>

This is an appeal from an order or' decree of the orphans court of Baltimore county, in which the appellees were the petitioners, and the decree being in their favor, an appeal was taken by the defendants therein.

This is an appeal- from Plarford county court, in an action upon a policy of insurance, in which the appellant was the plaintiff. Verdict was rendered for the defendant. The policy of insurance was dated 6th January 1845.—A mill situated in Harford county and which was thereby insured, was accidentally destroyed by fire 21st April 1847. Allen had paid the interest on his premium note, and the plaintiff insists that the policy remained in full force at the time of the fire.

THE General Court determined in this case, that a witness might be asked if A. was in possession of a tract of land ; but not whether he was in possession of a particular part, or of a house, unless located on the plat.

<p>THIS was an indictment for murder. In the course of tjie trial the Court gave the following opinions.</p> <p>Question. Whether the declaration of the prisoner, antecedent to the fact, is admissible, when it tends to explain and reconcile his conduct?</p>

EJECTMENT for a tract of land called Kelly's Fortune, containing 182 acres, lying in St. Mary's county, and described and located upon the plats in the cause as the plaintiff’s pretensions.

This is an appeal from the court of Howard district of Anne Arundel county, in an action on the case brought by the appellee, in whose favor a verdict was found.

<p>To sustain a decree in equity for the sale of lands to satisfy the vendor’s lien, it must appear that the vendee, was either insolvent or that the complainant had exhausted all his other remedies before he filed his bill.</p> <p>Where no exceptions are taken to the averments of the bill in the court below, the omission of the complainant to aver that he had exhausted his remedies against the defendants, will not, since the act of 1832, ch. 302, prejudice his case before the appellate court.</p> <p>Where a bill refers to and makes an exhibit of a former proceeding in equity, but the record of such proceeding is neither proved under the commission nor certified to under the seal of the clerk of the court, it is not evidence in the cause. The answers being silent in regard to it, this silence imposes on the complainant the obligation to establish the verity of the record.</p> <p>A short copy of a/i./it., with the entry of nulla bona thereon, was found in the record, but it did not appear when or how it was introduced into the cause. Held, that such a paper was not proof, though no objection was urged against it in the court below; to such a case the act of 1832, ch. 302, does not apply.</p>

<p>THIS was an appeal from Charles County Court. It was an action of replevin brought in the County Court by the appellee against the appellant for a negro man named Jacob. Pleas. Property, and actio non accrevit infra tres annos. General replications and issue joined. Verdict for the appellee.</p> <p>At the trial of the cause in the County Court, two bills of exceptions were taken. The facts stated in the first bill of exceptions are also set forth in the second., which is as follows :</p> <p>In the trial of this cause the plaintiff gave in evidence from the repeated declarations of Hester Harrison, who is now deceased, and under whom the defendant claims, that a certain Thomas Smallwood being possessed as in his own right, of a negro girl slave called Judah, gave and delivered the same to his daughter Hester Harrison, in the life-time of her husband Richard Harrison.</p> <p>, The plaintiff also gave in evidence, that the said negro girl was carried home to the said Richard Harrison, and remained in his possession till the time of his death, which happened on the 28th of Marchr 1734. That the said Richard Harrison being in possession of the said negro, by his last will and testament, bearing date the 25th March, 1733 — 4, in due form of law executed and proved, devised the said negro girl and her increase, to his two daughters, Mary and Elizabeth, and to the survivor of them; and by the said will constituted and ap-. pointed Hester Harrison, his wife, sole executrix of his will, and died shortly after making the said will. That. Hester Harrison shortly after took upon herself the execution of the will, took out letters testamentary thereon, and appraised the personal estate of said Richard Harrison, amounting in the whole to the sum of 121/. 16i. 6d. current money, and among other things inventoried and appraised the said negro girl called Judah, to the sum of 12/. current money in the said estate, and soon after returned the said inventory to the their deputy commissary of Charles county, and kept the possession of the said negro as executrix under the said will. That at the time of making the said will, the said Mary and Elizabeth, daughters of the said Richard and Hester Harrison, were infants: Mary about the age of three years, and Elizabeth about the age of one year, and lived and resided with their mother until their respective marriages. That Mary intermarried with a certain Richard Robins Reeder, about the 15th June, 1752, and Elizabeth with a certain William Elgin, about the 15th September, 1753. That frequently between the death of Richard Harrison and the marriage of Elizabeth, Hester Harrison acknowledged and declared that negro Judah and her increase, belonged to her daughters, according to the will of their father, and never set up any claim in her own right to the negroes or any of them, until her daughter Elizabeth was married; shortly after which time, she perused her father Thomas Smallwood'1s will, which was produced in evidence, and is dated the 14th of April, 1/34, by which he devised as follows s Item, I give unto my daughter Hester Harrison, one negro girl now in her possession, called Judah.” That said Smallwood died on the 4th of May, 1/34, and that the said negro girl was not inventoried nor appraised as part of his estate. It appeared also in evidence, that the said Hester Harrison, having the said negro Judah and her increase in her possession, did, after the marriage of her daughter with Elgin, and the sight and perusal of her father’s will, finding the same, as she said, was dated subsequent to her husband’s death, claim the same as her property in virtue of her father’s will.</p> <p>That in or about the year 1/54, the said Richard Robins Reeder and William Elgin, took counsel upon tlieir right to the said negro and her increase, and proposed to sue for the same. That there was no legal demand made by the said Reeder and Elgin, or either of them, of the said negro and her increase. But the said Hester claimed them as her own, and declared to the said Reeder and Elgin that she would not give them up. That no suit or action at law was brought by the said Reeder and Elgin, or either of them. That the said Hester always claimed the said negroes as her own, under the will of her father, from the time the said Reeder and Elgin took counsel as aforesaid, and from the time that she saw and perused the will of her father, and never after the said Reeder and Elgin took counsel, and after she saw and perused the will of her father, acknowledged the right of said Reeder and Elgin, or either of them,, to the said negroes, and was in quiet possession of, and used the same, until the time of her death, which was about the 19th of August, 1776, and gave a negro named Tom, one of the increase of the said Judah, to her son Richard Harrison, who was in quiet possession of him till the time of his death, and devised him by his will, dated the 11th December, 1771, to Hester Harrison aforesaid.</p> <p>That negro Jacob, for the recovery of whom the present suit is brought, was one of the increase of Judah, and was born about the 1st of October, 1749, and always remained in the possession of Hester Harrison until her death, and was claimed by her under the will of her father, after the marriage of her daughter with Elgin, and after she saw and perused her father’s will. That she devised negro Jacob 'to Thomas Harrison her son, and appointed Richard Robins Reeder her sole executor, and died about the 9th of August, 1776. That the said Reeder, soon after the death of said Hester, about the 1st January, 1777, took upon himself the execution of the will, and got possession of the said negro Jacob in eonsequence of his being executor, and inventoried and appraised the said negro and all the other negroes the increase of the said Judah, and also the said Judah, in the possession of the said Hester at the'Time of her death, as in the estate of the said Hester, and shortly after returned the inventory to the then commissary of Charles county. That Elizabeth the wife of Elgin died some time before the said Hester, and that her husband survived her. That the said Reeder, after having obtained the possession of negro Jacob, and the other increase of Judah, as executor of said Hester, claimed them as his own under the will of Richard Harrison, and retained dispossession of them until some time about 1st of April, 1779. That Hezc-Uah Reeder the plaintiff, claims the said negro in virtue of a deed of division and mutual releases between the said Elgin and the said Richard Robins Reeder, of Judah and her increase, in which the said Jacob is released to the said Richard Robins Reeder, and severed as part of his share of the negroes. And in virtue of a deed from Richard R. Reeder and Mary his wife, to Hezekiah Reeder the plaintiff their son, transferring the said Jacob to the said Hezekiah.</p> <p>That the said William Ward the defendant, some time in the year lff8, was duly appointed and admitted by the Orphans’ Court for Chai les county, guardian to the said Thomas Hariison; and afterwards, about the 1st of April, 1779, the said negro Jacob accidentally came to his possession, and, as the guardian of the said Thomas, he retained them against the consent of the said Richard Reeder and Mary his wife, and the said IIeze= kiah who claims under them. That the said Richard and Alary are still living. That the said Hezekiah the plaintiff, demanded the said negro Jacob of the said William. Ward the defendant, on the 2d of April, 1779 ; and that, afterwards, on the 6th of April, 1779, the original writ in this causé was first sued.</p> <p>Upon the evidence in the first bill of exceptions, the defendant, by his counsel, prayed the Court to direct the Jury, that upon the evidence given of the said Hester Harrison perusing her father’s will, and making her claim upon the grounds declared by said Hester, no confession or declarations of said Hester before the time of her making her claim to the said negroes as her own, and while she had the care of her said children, and the possession of the said negroes for their use, undei the circumstances of being widow and executrix to the said Richard, was legal evidence against the defendant in this cause, because this evidence, as the counsel conceived, arose upon hearsay írom a person, who, at the time the declarations were made, considered her-» self interested in supporting the claim of the present plaintiff.</p> <p>But the Court were of opinion, and so directed the Jury, that such declarations and confession of the said Hester, under the circumstances aforesaid, were legal evidence against the defendant in this cause. The weight and influence of which evidence, under all circumstances and proof aforesaid given on the other side, to be considered by the Jury. To which opinion the defendant excepted.</p> <p>Upon the evidence stated in the second bill of exceptions, it w;as agreed by the counsel on both sides, that the Court should give the opinion and direction to the Jury, whether the act of limitations barred the plaintiff’s recovery ; and the counsel for the defendant thereupon prayed the Court’s direction to the Jury, that the plaintiff was barred by the act of limitations, from recovering the negro aforesaid, upon the evidence and case aforesaid.</p> <p>But the Court were of opinion,, and so directed the Jury, that the; act of limitations did not bar the plaintiff’s recovery; to which opinion the defendant excepted.</p> <p>The General Court reversed the judgment of the County Court. But whether upon both or only one of the exceptions, does not appear on the record.</p> <p>The appellee in the General Court, appealed to the: Court of Appeals j where, at May term, 1788, it Was argued.</p>

<p>The following opinion of Tuck, J., dissenting in part from that of the court in the case of Glenn against Gill, page 1, being mislaid, was not found until it was too late to insert it in the proper place.</p>

This appeal was taken by the appellants from a decree of the chancellor, dismissing their bill, passed on the 16th of July, 1849.

THIS was a certiorari to the County Court of Baltimore, to remove the proceedings on a motion, that Samuel Johnston, Esquire, be admitted an attorney of the said Court.

<p>THIS was an action of trover. At the trial of the cause, a bill of exceptions was taken, by which it appears, that the plaintiffs, to prove the issues in the cause, produced to the Court, and offered to read in evidence to the Jury, the deposition of John Evans, to which the defendant, by his counsel, objected, because it did not appear that proof of notice to the defendant was lodged with the clerk of the county," where the said deposition was taken to be recorded, nor did it appear that any notice of taking the deposition was recorded by the clerk of the said county. That the plaintiffs proved to the Court, that notice was given by them to the defendant, of the day and place of taking the deposition, twenty days before it was taken, and that it was taken on the day and at the place of which notice had been given, and that the defendant attended when the deposition was taken, and examined the said Evans, and that the said Evans was, long before, and at the time of taking the deposition, and ever since hath been, and still is, an inhabitant and resident of the state of Virginia, and could not be had, by process from this Court, to attend the trial of this cause.</p>

THIS was an action of ejectment, brought to May term, 1785, and at May term, 1786, a judgment was confessed for possession and costs. A writ of haberi facias possessionem issued to October term, 1786, and the sheriff returned “ possession delivered.”

This appeal is taken by the appellant, the defendant below, from an order of the chancellor overruling a demurrer to an amended and supplemental bill, filed by the appellees. The original bill was filed in the equity side of Baltimore county court, and then removed to the court of chancery. This bill the defendant answered, and exceptions were filed thereto by the complainants. The defendant also excepted to the sufficiency of the bill.

<p>THIS was an action of debt, upon a writing obligatory, bearing date the 14th June, 1785, executed by the defendants to the State of Maryland, and conditioned for the payment of 157/. 3s. 9d. current money, or in specie certificates, bearing interest, issued by the State, on or before the 1st of January, 1790, and legal interest on the same, payable as aforesaid annually and punctually at the end of every year, according to an act of assembly, passed at November session, 1784, entitled, “ an act to establish funds to secure the payment of the State debt, within six years, and for the punctual payment of the annual interest thereon.” The writ issued the 5th January, 1787, and was endorsed, that the suit was brought for one year’s interest being 9/. 8s. 7 1-2d. specie.</p> <p>The following case was submitted for the opinion of the Court, viz.</p> <p>The defendants bring into Court the whole costs in this suit amounting to 3/. 14s. 6d. current money of Maryland, and they -also bring into Court a certificate, granted by the State of Maryland to a certain T. Williams, for the payment of 60/. specie, with interest from the 1st of August, 1780, which certificate was granted and issued according to the act of assembly, to settle and adjust the accounts of the troops of this state, in the service of the United States, and for other purposes therein mentioned, (the sum of 9/. 8.v. 7 1-2d. being one year’s interest due on the bond, on which this action is brought,) and lodge the same in Court, and pray that the state may receive the same, and that they may be discharged of this suit, and go thereof without day. And the state refusing to receive the same, judgment is given for the State, subject to the opinion of the Court, whether the defendants are entitled to bring into Court and pay the interest aforesaid, in manner aforesaid; and if it shall be the opinion of the Court, that the defendants have a right so to do, then judgment to be entered for the defendants.</p>

<p>EJECTMENT for three tracts of land, called Delph, ;ontaining 600 acres; DelplCs Neglect, containing 120 acres; and Goldsmith’s Hall, containing 800 acres, lying in Harford county.</p> <p>It appears from the special verdict, found in this case, that Aquila Paca was seised in fee-simple of the said tracts of land, and devised them to John Paca, his son, in tail, remainder over to his nephew Aquila Paca, in tail. By virtue of which devise, after the death of the devisor, John Paca, the son and devisee, entered into the said lands, and, being seised thereof, died leaving issue, Aquila Paca, who entered and was seised as tenant in tail, by virtue of his grandfather’s will.</p> <p>That Aquila Paca, the grandson, being seised of the land in question, signed, sealed and delivered a deed, in writing, not indented, in the form following: “ This indenture, made this sixth day of November, seventeen hundred snd eighty-three, between Aquila Paca of Harford county, of the one part, and Henry Johns of the same county, of the other part. Whereas the said Aquila Paca is seised, as tenant in tail, of the following tracts or parcels of land, &c. which entails the said Aquila Paca is desirous of barring by this present indenture, under an act of assembly in such case made and provided, and that he may be enabled to dispose of and limit the same to the uses in his last will to be declared, hereby conveying to the said Henry Johns an estate in fee-simple, for the use, intent and purpose, that the said Henry may reconvey to him, the said Aquila Paca, an absolute estate in fee-simple, thereby to dock and bar all estates in tail in the premises, and that the said Aquila Paca may fully and absolutely be seised of an indefeasible estate in fee-simple therein. Now this present indenture witnesseth, that the said Aquila Paca, for and in consideration of the premises, and also for and in consideration of the sum of five shillings, current money, to him in hand paid, &c. hath given, granted,” &c. [/« common form.]</p> <p>Which deed was acknowledged in the form followings u Be it remembered, that on the 6th day of November, 1783, came the within named Aqüila Paca, before us the subscribers, two of the state of Maryland's justices of the peace for Harford county, and acknowledged the within instrument of writing, to be his act and deed, for the uses therein mentioned, and the lands and tenements there described, to be the estate of the within named HenAy Johns, his heirs and assigns, according to the true intent arid meaning thereof, and according to the fortn of an act of assembly, in such case made and pro» vided,” Sic.</p> <p>On the 7th of November, 1783, Henry Johns, by a deed of bargain and sale, not indented, recoriveyed the said land to Aqüila Paca, who entered into the said land* arid on the 8th of November, 1783, devised it to the defendants in this cause, iri fee, after which devise the said Aqüila Paca died, leaving no issue.</p> <p>The plaintiff in this cause is the nephew of Aquild Pácá the grandfather, and claims the land as the remainder-man in tail, under the will of the said Aquila Paca.</p> <p>Note. At May term, 1786, there was an entry on the docket of “ notice to produce the original deeds from Aqüila, Paca to Henry Johns, and from Henry Johns to Aquila Paca, for the lands for which this ejectment is brought.</p>

THIS was an appeal from a decree of the Court of Chancery, vacating a patent, and making perpetual an injunction on a judgment at law.

The appellant was- indicted for a violation of the act of 1817, ch. 227.

PETITION for freedom by Mary Butler, claiming her freedom as a descendant from a free white woman. At the trial of this cause, two bills of exceptions were taken.

This was an action of assumpsit brought, at the January term 1848, of Baltimore county court, by the appellee, against the appellant, upon a policy of insurance for the sum of $9000, upon the cargo of the barque Commerce, from Baltimore to Rio de Janeiro and back. The plea was non assumpsit. Exception. At the trial, the plaintiff offered in evidence the policy upon which the suit was brought.

EJECTMENT for a piece or parcel of land, called Wharton Manor, distinguished by Lot No. 1, and Lot No. 2. lying in Kent county. The suit was brought to April term, 1775.

THIS was an appeal from a decree of the Court of Chancery, vacating a grant.

This was an action of trespass, quare clausum fregit, brought by the appellant as executrix of Caleb Kennerly, deceased, to recover damages for injuries to the real estate of the testator, committed in his lifetime. The declaration concluded by alleging damages to the testator in his lifetime, but omitted to allege damage to the executrix.

THIS was an action of assumpsit on a promissory-note. Plea, non assumpsit. Verdict for 34/. curient money, and judgment thereon.

THIS was ’ a writ of .partition for the partition of Timber Neck, part of King's Neglect and Betty’s Dowry. lying in Talbot county. The defendants pleaded non tenure insimul. (See the pleas in 2 Har. Ent. 485.) The plaintiff, in deducing his title as tenant in common to the land in dispute, produced in evidence the certificate of Betty’s Dowry, surveyed for John King, the 1st October, 168/; but produced no patent for the same, as none could be found.

THESE were attachments on judgments after returns of non est. The following case was stated in these actions by the counsel on both sides, for the opinion of the Court, viz. In the year 1786, Benjamin Eyre, of the city of London, who always resided in Great Britain, consigned to Messrs. Forrest and Stoddert, two several parcels of goods for sale.

This was an action of trover, brought by the appellee against the appellant, to recover the value of a negro slave, Ann, alleged to be the property of the plaintiff. The plea was non cul. Exception.

The cause of action in this case was the same as in the preceding, and the facts are also the same, except that in this case the1 appeal was taken directly from the order of the court consolidating the causes.

This was a petition for freedom, filed by the appellants on the 9th of October 1847, in Prince George’s county court, at that time forming part of the first judicial district. Upon the suggestion of the appellants, supported by the affidavit of their counsel, that they could not have a fair and impartial trial in that county, that court removed the cause to Anne Arundel county court, which was at that time a part of the third judicial district, for trial.

EJECTMENT for Anne Arundel Manor, in the county of Anne Arundel. The ejectment was brought to April term, 1773, and a special verdict was found at September term, 1774. The following is an abstract, to wit. That King Charles the 1st. granted the province of Maryland to Cecilius Calvert, his heirs and assigns, which, is inserted in hcec verba.

This was an action of- covenant by the appellee against the appellant, upon the instrument of writing set out in the opinion below. The- defendant filed a general demurrer to the declaration, which the court overruled. The parties then agreed that the cause should be tried upon the following pleas:-—1st. Payment by John L. Benjamim 2nd. Payment by defendant. 3rd. Non infregit conventionem.

This was an action of debt instituted in the name of the State, for the use of Jeremiah Ducker, against the appellant and Geo. G. Belt as sureties in a trustee’s bond of one John Scott, who was appointed by Baltimore county court, as a court of equity, trustee for the sale of certain real estate mentioned in the proceedings in a cause in said court. The plaintiff declared generally for the penalty of the bond without assigning breaches.

<p>Appeal from the orphans court of Charles county.</p> <p>In this case a petition was filed by the guardian stating, that he had received the sum of $200, part of the proceeds of certain real estate belonging to his ward, which had b.een sold by a decree of Charles .county court as a court of .equity, under the act of 1816, eh, 154, and praying the said orphans court to pass an order directing him in what manner to invest the same. The petition also suggested that the State stopk was selling for so much above par as not to nett six per cent, per annum on the amount investéd. The .court being of opinion, that they had, under the law, discretion to direct the guardian to invest the said proceeds of sale in any permanent funds which yield six per cent, per annum, less the State taxes, upon the face of the stock or bonds, and that they are not restricted to direct such an investment in such stock or funds as yield six per cent, per annum upon the amount of the money invested, passed an order directing the investment to be made in State of Maryland six per cent, stock, being of opinion that such stock was the best investment for said money, though it was selling for seven or eight per cent, above par, said stock paying six per cent, on the face of the bonds. From this order the guardian appealed.</p> <p>The fifth section of the act of 1816, ch. 154, enacts, “That the proceeds of the sales made by and in virtue of this law, shall be paid over by the trustee or trustees to the guardian or guardians of such infant or infants, to be by such guardian or guardians invested in such public stock or other permanent funds as will at least nett six per centum per annum, at the time of the purchase, and as the orphans court of the county by whom such guardian or guardians shall have been appointed shall direct.”</p> <p>The fifth section of the act of 1831, ch. 315, enacts, “that the orphans court of the several counties of this State be, and they are hereby authorised and empowered in their discretion, and whenever to them it shall seem proper, to order any executor or administrator, to whom they may have granted letters testamentary or of administration, or any guardian whom they may have appointed, or whose bond they may have approved of, if it be a natural or testamentary guardian, to bring into court, or place in bank, or invest in bank or other incorporated stock, or in any other good security any money or funds received by such executor, administrator or guardian, and the court shall direct the manner and form in which such money or funds shall be placed in bank or invested as aforesaid, and the same shall, at all times, be subject to the order and control of such court, and if such executor, administrator or guardian shall not, within a reasonable time, to be fixed by the court, comply with the order of the court, the letters testamentary or of administration granted to such executor, or administrator, or the guardianship as the case may be, may be revoked by the court.”</p>

This was an action of debt, instituted by the appellant, Whitehill, as guardian of Worman, against the appellee, upon the bond of his testator, who was appointed a trustee by Frederick county court, as a court of equity, for the sale of certain land. The declaration was for the penalty of the bond, and after plea of general performance, the plaintiff filed a replication assigning breaches.

This was an action of assumpsit instituted on the 16th of May 1846, by the appellee against the appellant. The declaration contained the usual indebitatus assumpsit and the common money counts. The defendant pleaded non assumpsit, and the case was submitted to the court below on a statement of facts in substance as follows.

The defendant in error was indicted for suffering card playing and betting on cards in his tavern on the sabbath day. The indictment and pleadings are sufficiently stated below in the opinion of this court.

This was an action on' the case by the appellee against the appellant. The writ commands the sheriff to arrest the appellant to answer unto the appellee “in a plea of trespass on the case, and so forth.” The declaration contained two counts, one in trespass, vi et armis, for taking and carrying away two negro slaves of the plaintiff, the other in trover for the same property. Damages laid at $2000.

The bill in this case was filed on the 20th of March 1844, by the appellants, the complainants below, against the appellee, and alleges that the complainants on the 10th of June 1843, confessed two judgments in favor of the appellee, before a justice of the peace, each for the sum of $92.11^, that the complainant David, was a surety of the said Joseph in said judgments, and was induced to become such in consequence of the representations of the appellee, that the debts for…

<p>Appeal from Montgomery county court.</p> <p>This was an action oí covenant by thenppellee against the appellant, upon the agreement set out in full below in the opinion of this court. The breaches of the covenant alleged in the declaration were:—1st. That the defendant “did dig for, get and remove” chrome ore from the land of Lyde Griffith in his lifetime, it being the land formerly occupied by Benjamin King, and mentioned in the articles of agreement, and did not pay to the said Lyde Griffith in his' lifetime, or to the plaintiff, his executor, “five dollars per ton for each and every ton of chrome ore or mineral dug, gotten and removed” by defendant, according to the form and effect of the articles of agreement. 2nd. That defendant, after digging and getting twenty thousand tons of chrome ore, did fail to sell and dispose of the same and to pay five dollars for each ton thereof. The defendant pleaded that he had paid to (he plaintiff the sum of $5 for each and every ton of the chrome ore or mineral which “ he had removed from the said land,” and on this plea issue was joined.</p> <p>1st. Exception. The plaintiff offered in evidence the agreement referred to, and then offered to prove, that there was lying at the mines on the land referred to, about three hundred tons of chrome ore or mineral, dug and thrown out of said mines by defendant, under said contract, and lying on the margin thereof, but not carried away from the land. The defendant objected to the admission of this evidence, but the court, ('Brewer, A. J.,) overruled the objection, and permitted the evidence to go to the jury, and the defendant excepted.</p> <p>2nd. Exception. The defendant then offered in evidence the following receipt: “1838, January 30th, Received of Washington Waters, $50 in full, for the entire right to search for, dig, and remove, as he may think proper, chrome ore or mineral from the lot of ground marked out for him, upon the terms specified in a contract between him and myself, dated, October 18th 1837. Also for the use of the house, except the cellar, in said lot, so long as he may wish it, for the use of the hands he may emplby in digging for chrome upon said lot.”’ Signed, “Lyde Griffith, Washington Waters.” The plaintiff then on- his part offered the following letter of the defendant. “Dear Sir,—I received a letter this morning from yourself and' Mr. Tyson, per one of his hands, requesting me to-go'ovér to your house, which request I would willingly comply with would my engagements permit, but situated as I am to-day, and supposing there can be no urgent business with you I must decline, but will go over the first opportunity I shall have. The object of Mr. Tyson’s visit to you, I suppose must be to make a contract with you for chrome, but as I have already made a contract with you I hope you will make no contract with him which will in any manner interfere with the one I have made with you, or that you will decline making any with Mr. Tyson until I shall see you.-</p> <p>In haste, yours, &c.,-</p> <p>January 16th, ®838. Washington Waters.”</p> <p>: The plaintiff then asked the court to instruct the jury, that if they believe from the evidence that defendant entered upon . the. lands of Lyde Griffith, deceased, under the contracts proved to have been made between the said- Griffith and defendant, one dated the lSth of October 1837, and the other the 30th of January 1838, and dug for’, found and removed chrome or minerals from the land mentioned in said contracts then the plaintiff is entitled to recover $5 for each and every ton of chrome ore or mineral the plaintiff has proved to have been taken out of the mines by defendant, whether the Same has been carried away from the land or whether the same' now remains on the surface of the earth near the mines. The court granted this instruction, and the defendant excepted. The jury rendered their verdict, that the defendant had not observed, performed, fulfilled' or kept the covenants in the articles- of agreement mentioned,, and' assessed the damages at $2056.25. Upon this verdict the court rendered judgment for the plaintiff, and the defendant appealed.-</p>

This was an attachment by the appellant under the act of 17&5, ch. 56, to aflect the property of the appellee as a nonresident, issued on the 24th of May 1851. The cause of action was a draft by the appellee in favor of the appellant, for $87, dated 1st of June 1848, with interest from- date.

The appellant filed his petition in the circuit court for Anne Arundel county, at the October term 1852, stating, that by virtue of art. 2, sec. 11, and art. 9, sec. 2, of the new constitution of this State, the governor, during the last session of the legislature, nominated the petitioner to the senate as Adjutant General; that the senate passed resolutions in reference to said nomination, (copies of -which are filed wilh the petition,) and took no further action in the…

This was an action of assumpsit, instituted on the 3rd of July 1849, by Renwick the appellant, against the appellees, as executors of Hannah K. Chase, upon the following promissory note executed by the said testatrix in her lifetime, and endorsed by the payee to the plaintiff: “$2000. Baltimore, July 30th, 1844. Two years after date I promise to pay William Chase Barney or order, two thousand dollars for value received.

The hills in these cases were filed originally on the equity side of Baltimore county court, the one on the 2nd and the other on the 3rd of July 1849. The causes were afterwards removed to the court of chancery and consolidated by the chancellor.

- The plaintiff in error was presented and'indicted for burning a stack of My. The indictment and verdict are sufficiently stated in the opinion of this court. The traverser moved in arrest of judgment. 1st. Because the indictment charges the act to have been done feloniously, and' the act charged is'not a felony. 2nd. The indictment contains no allegation of place where the property charged to have been burned was situate. 3rd.

EJECTMENT. In this case the defendant had taken defence on warrant, and plots were returned. He after-wards moved to amend the plots, which was granted. In making the amendment he lessened his defence byT confining his pretensions within narrower limits.

<p>APPEAL from Charles County Court. It was ai ac - don of assumpsit on an account.</p>

<p>EJECTMENT for a tract of land1 called Elizabeth’'s Diligence, lying in Baltimore County.</p> <p>It appears by the bill of exceptions taken at the trial, that the defendant, to prove the issue on his part, and to make title to the land in question, produced in evidence to the jury, the will of John Frazier. And the plaintiff offered to prove, by parol evidence, that one of the three subscribing witnesses to the will was a convict, and transported into the province of Maryland in the year 1750, from Great Britain, agreeably to certain statutes for the transportation of felons.</p>

THIS was an appeal from Charles County Court. The defendant’s counsel prayed the Court below to direct the jury, that if they found any article in the account falsified, that then no part of the account was evidence. The Court refused to give the directions prayed for, whereupon a bill of exceptions was taken. The appellant’s counsel contended that no part of the account was evidence, on the construction of the act of 1729, c. 20. s. 9.

This case originated in a bill filed in chancery by the appellant, Doub, on the 17th of January 1846, against the appellees and others, and has been several times brought into this court by the appeals of the different parties having distinct interests therein. The cases of Boub vs. Barnes, etal., 4 Gill, 1. Barnes, et al., vs. Bodge, et al., 7 Gill, 109. Thomas vs. Boub, el al, 8 Gill, 1. Bodge vs. Boub, et al., 8 Gill, 16, and Thomas vs. Boub, 1 Md.

By the record it appears that this was an action of covenant brought by the appellant, the plaintiff in the court below, against the appellee, the defendant therein, upon an identure of lease executed by Richard Moale (whose devisee the said John is) to the said Tyson. The declaration states a breach for non-payment of one year’s rent, amounting to 20/. lli. sterling money, &c. ending on the 1st of April, 1786.

IT appears that on the 22d of May, 1788, a writ of at«• htckmcnt founded upon a j udgment on two non sunts issued, directed to the Sheriff of Prince George’s County, in the usual form, and that the said attachment was laid in the hands of Robert Toung, attorney in fact; that the said Toung appeared and pleaded several pleas.

A CAPIAS AD RESPONDENDUM in debt having issued out of the General Court on the 3d of March, 1788, by the present plaintiff against one Joseph Chap line, and a declaration filed, and copy thereof sent to be served on the defendant with the writ; at the return day of the said writ, viz. at May terra, 1788, the defendant in this cause, being then Sheriff of Washington County, and to whom the said writ was directed and delivered, to be served on the said Chap line, who resided…

THIS was an action on the case, against the defendant, a late Sheriff, for the escape of William Duvall, arrested upon a capias ad respondendum. The defendant (by S. Chase, his attorney) pleaded non ad. infra tres annos, and actio non accrevit infra tres annos.

THIS was an action of debt on a bond given to the Lord Proprietary by Jerom and Isaac Canned,, as administrators upon the estate of Abraham Canned, dated the 9th of November, 1772, with Henry Trulock and Robert Peacock, securities in the said bond. The writ issued in this case on the 31st day of July, 1787.

In-a cause pending in chancery between Joseph and Thomas White on the one side, and the Okisko Company and the Elysville Manufacturing Company, and others, on- the other side, a decree was passed on the 9th of July 1849, for the sale of the whole property of the Okisko Company, real, personal and mixed, and the appellees were appointed trustees for that purpose.

EJECTMENT, for lots numbered 548, and 549. in Howard’s Addition to Baltimore town.

EJECTMENT for a tract of land called Timber Neck. lying- in Baltimore County, containing 200 acres of land, one undivided moiety whereof Henry Griffith demised, &c. At the trial of the cause four bills of exceptions were taken.

The appellants, the complainants below, are the children of Greenbury Lark, who died in ] S26, leaving a will duly executed, dated the 22nd of December 1821, and admitted to probate on the 20th of December 1826, whereby he bequeathed all his property to his wife Amelia Lark, during her single life, and after her death to be equally divided among his said children, share and share alike, and appointed his wife his executrix, who took upon herself the execution of the trust,…

The appellee was divorced from the appellant, her husband, a vinculo matrimonii, by the act of 1849, ch. 428, passed on the 8th of March 1850, and instituted this action of ejectment, to recover her real estate from the possession of the appellant, who continued to hold it after the divorce. The cause was tried in the county court, upon a statement of facts set out in full in the opinion of this court.

THIS was a special action on the case by the consignor, against the common carrier, for damages, for not delivering thirty hogsheads of tobacco, shipped on board of the schooner Diligent, for transportation. At the trial, the plaintiff’s counsel produced the bill of lading, in which it was stipulated to deliver the thirty hogsheads of tobacco, shipped on board the Diligent'j to Mr. Hollings'worth, or at the head of Elk.

This was an attachment upon a judgment in favor of the appellants, (the plaintiffs below,) against the appellee, Sprigg, rendered in Prince Georges county court. The attachment was laid in the hands of Robert Bowie and Robert W. Bowie, wTho were summoned as garnishees.

<p>THIS was an action of assumpsit on a bill of exchange drawn by the defendant’s testator on the 7th of September, 2775, directed to West £5? Hobson, of London, payable, thirty days after sight of that the first bill, (the second and third unpaid,) to the plaintiff’s testator, and Abraham Usher, by the name of Thomas Usher £s? Co. the sum of 200/. sterling. The bill was endorsed by Thomas Usher £s? Co. and by Penington & Biggs. The bill was presented for acceptance on the 25th oí December, 1775, and was not accepted. It was afterwards presented for payment on the 23d January, 1776, and was not paid.</p> <p>Three bills of exceptions were taken at the trial of the cause.</p> <p>1. By the first it appears the plaintiffs, to maintain the issue on their part, produced, and offered to give in evidence to the Jury, a duplicate protest of the first bill of exchange, and the third bill of the same tenor and date drawn by the said Edward Gaither. To which the defendant objected, and insisted that the original bill mentioned in the said protest ought to be produced, and evidence given that the same was drawn by Edward Gaither.</p>

THIS was an attachment with a clause of scire facias„ issued the 8th of May, 1787, on a judgment rendered (after two non ests returned) for attachment at May term, 1787, for 1,544l. 2s. 7d. current money, damages and costs.

THIS was a special action on the case, brought in Saint Mary’s County Court, lor erecting a dam and overflowing and drowning land, parts of tracts called Brehon’s Purchase, Beaverdam, and Indian Bridge, lying in Saint Mary’s County, and for diverting an ancient water course.

<p>THIS was an action of debt on an award brought in Balthnore County Court.</p>