Volume 21 — Maryland Reports

3?5, for the illegal transportation by the appellants, (who were the defendants below,) 'of the negro slave of Davis, from Annapolis to Baltimore, on board the “ John T, Barber,” a sail vessel owned by the defendants. The declaration contained three counts, laying the ownership of the negro, and the manner of transportation, in different forms.

Appear from the Orphans’ Court of Howard County. This is an appeal from an order of the Orphans’ Court of Howard County dismissing the appellants petition? upon the following state of case: George Stinchcomb, father of the petitioner, Mrs. Mary Ann Brown, died in 1858, leaving a will, by the first item of which the testator manumitted all his negro slaves at the period of twelve months after his decease.

And the complainant charges the defendant with misconduct in drawing out (>9,000, to buy certain land of one Merrill, intended for the benefit of the firm, but for which the defendant took a deed in his own name, and refused to convey title to one-half to the complainant, and that nevertheless the defendant never posted this money in tbe ledger, or in any maimer charged it to himself; and further, charges misconduct in the defendant in drawing out large sums of money for his…

Motions to dismiss appeals from the Superior Court of Baltimore City, in equity : This case was instituted in the Circuit Court for Baltimore City, and afterwards removed to the Superior Court of that City.

The principal allegations of the bill were as follows: “That your orator is the owner of forty-five thousand and fifty shares of the capital stock of the Baltimore and Ohio Rail Road Company, a corporation chartered by the State, for which said Acts of Assembly and the several supplements thereto, and for other Acts hereafter referred to, your orator prays leave to refer to the statute book of Maryland, and prays that so far as is necessary they may be deemed as part of this…

a pro forma order of the Circuit Court for Baltimore city, overruling a motion of the defendant, now appellant, to dissolve an injunction which had been previously granted, enjoining the appellant from constructing, grading, or laying with rails, their branch railroad or way, upon, along or across certain streets in the city of Baltimore, or from altering the grade of any of said streets, or from proceeding with the work of building the said road, except with the consent,…

paid by his executors, he devised and bequeathed as follows: “I give, devise and bequeath- to my wife, an undivided third of all my estate and property, to be held by her for and during tbe term of her natural life or widowhood, whichever shall terminate tbe soonest; and from and after the death or second marriage of my said wife, I give, devise and bequeath said undivided third to such of my children and descendants as may be then living, to take per stirpes and not per…

The United States, under tbe circumstances detailed in tbe opinion of this Court, having located tbe site of au Aqueduct dam at or near tbe Great Falls in tbe Potomac River, and upon tbe soil of tbe State of Maryland, tbe Great Falls Manufacturing Company afterwards, and witb knowledge of this fact, obtained a common warrant from tbe Land Office for a tract of land which included and was bisected by the proposed dam; whereupon the United States filed a caveat against the…

On the 26th of October 1854, the appellee obtained a special warrant to resurvey a tract of land called “Upton Court,” contiguous to which, he represented that, he had discovered some vacant land which he was desirous to add thereto.

the appellant to recover damages for having been shot at and wounded by him, while riding in his carriage over a road passing tkroiigh. the defendant's land. By leave of the Court the plaintiff filed an amended declaration, and upon further leave filed an amended declaration to his amended declaration, which contained five counts, the 2nd and 3rd of which were afterwards by leave of the Court withdrawn.

Appeal 'from the Circuit Court for Anne Arundel County, in Equity: The'bill in this cause was filed on the 22nd of December 1856, against the appellants, as executors and trustees of Eliza Miller, who-died in 1855, by Alice Weedon, an infant, by her next friend, Wm.

This was an action brought April 16tb, Í863, by the appellee against the appellant, to recover damages for a negro woman named Hester, sold by tbe defendant to the plaintiff, with warranty that she was sound and healthy, but found to be unsound and unhealthy at the time of the sale.

44, on a lot of beef, shipped from Baltimore to London, by the barque ‘Emelia/ for sale; and the defendant, at the time of said advances, agreed with the plaintiff that if the amount yvhicli they should realize from the salo of said beef was less than the amount o.f said advances, that he, the said defendant, would, on the receipt of the account of said sales, refund the amount of said deficiency to the said plaintiff; that said sales were less than said advances, and though…

Beall and Norah Digges, upon their single bill in his favor, and passed to him by them. Pending the suit, William Z. Beall, died, and Washington J. Beall (the appellee) was made a party defendant as his executor, and judgments were obtained against him as such executor, and also against the said Charles Digges and Norah Digges.

Appeal.from the Circuit Court for Prince GúoígéV County: The appellant sucd’thc appellees an sureties on the bond ©fD. C. Digges, trustee for the sale of the real estate of William Boteler, under a decree of the Equity Court for Prince George’s County. The breach is assigned in the-?mr., which shews that the1 trustee sold the land, and reported the sales; and that sc-counts were stated', distributing the proceeds,- of which* Susan Boteler, as widow, was entitled to $222v24.

<p>Annuity — Apportionment op: Devise. — A testator devised an annuity to his sister, charging its payment upon the whole of his real estate, which consisted of two tracts of land of equal value, one of which was specifically devised, and the other, under the provisions of the will, became vested in the sister by descent as the heir at law of the testator. On a bill filed by the ánmiitant seeking to have one-half of the annuity paid to her out of the land specifically devised. Held:</p> <p>That the land despended being amply sufficient for that purpose, was charge-, able with the whole annuity, in exoneration of the land specifically devised.</p>

<p>Scire Facias: Pleading: Accord and Satisfaction is a proper plea to a' scire facias on judgment. — A plea to such scire facias which distinctly avers’ an agreement to compromise a suit then pending in the Court of Appeals,for valuable considerations, in satisfaction and discharge of the judgment appealed from, and the performance of all the conditions on the part of thé judgment debtor, including the payment of the money agreed on, is a sufficient plea of accord and satisfaction. And the omission of an averment " that the acts done on the part of the judgment debtor in satisfaction,- were received' and accepted in satisfaction and discharge, is the omission of what is necessarily implied in the preceding averments of the plea.-</p>

<p>Will: Devise — Construction or: Extrinsic Evidence. — Where a testator devised a “lot of ground lying on the east side of Leadenhall street in Ridgely’s Addition to Baltimore Town,” Held:</p> <p>That it was competent to show, by testimony derived from other parts of the will, and by extrinsic evidence explaining the sense in which the testator used the word lot; — that it embraced a larger pal-cel of ground, and was not intended to refer to the small sub-divisions designated as town lotion the plat of Ridgely’s Addition to Baltimore Town.</p> <p>Practice in Court op Appeals. — Where a question proper for the Court to decide, is submitted to the jury, this will be no ground for reversal, if . the appellate Court on examination of the evidence shall cometo the same conclusion reached by the jury.</p> <p>Construction op written. Paper-s: Province op Court and Jury. — It is the general rule that the construction of a will or any other written paper, is for the Court and not the jury.</p> <p>-: -: Latent Ambiguity: Parol Evidence. — That the construction' of written documents is a matter of law, and is not in ordinary cases to be submitted to the-jury as a matter of fact, is true; but where the doubt is produced by the existence of collateral and extrinsic facts, not appearing upon the instrument, its consideration ceases to be a matter of mere legal construction, and the intention of the parties is to be sought for by a recurrence to the state of facts as they existed when the instrument was made, and to which the parties are to be presumed to have reference. The ambiguity in such case is a latent one, which may be explained by parol evidence, and submitted to the jury.</p>

The case is very fully stated in the opinions of the several Justices of this-. Court by whom the case was heard. The Court below erred in substituting its own instructions for those asked for by the defendants. The first inquiry is as to the difference between the two sets of instructions. The difference, it is contended, is this fundamental and vital one.

The facts of the case are sufficiently stated in the opinion of this Court. This is an appeal to the Court of Appeals from an order of the Superior Court of Baltimore City, refusing an injunction.

<p>Vendors’ Lien: Waiyer. — Where the agreement of sale of land was, that the vendor should receive the cash payment, and the balance as soon as the vendee could raise it by mortgage, to enable the vendee to do which the vendor agreed to and did convey the property, taking in lieu of his lien the note of the vendee with an endorser; Held.</p> <p>That whether the surety’s relation to the note was that of endorser, copromisor, or guarantor, is immaterial. The lien was expressly waived, and independent collateral security accepted instead; and the right of the vendor under such circumstances to pursue the land was extinguished.</p>

<p>Appeal, from the Superior Court of Baltimore City :</p> <p>This action was instituted on the 8th of September 185^ by the appellees against the aj>pellant, on two policies of insurance, one on the steamer E. J. Dupont, and the other on her freight and cargo, that steamer having been lost while hound on the voyage insured for. The facts are fully stated in the opinion of this Court. The appeal is taken by the defendant from the rulings of the Court below, (Lee, J.)</p> <p>The counsel for the appellant will limit themselves to the discussion- of the following propositions:</p> <p>1. As to tbe construction and effect of the steamboat clause, endorsed on the policy on steamer, dated June 4th, 1856, which they will contend absolves the defendant from responsibility, under the facts set forth in the defendant’s fifth prayer; see 2 Western Ins. Co. vs. Cropper, 32 Penn. State Rep., 351. Geni. Ins. Co. vs. Sherwood, 14 Howard, 366. Copeland, d a'L, vs. Ins. Go., 2 Metcalf, 437. 1 Phillips on Ins., 431.</p> <p>, 2. That the limitation as to the course' of the voyage contained in the body of the first policy, restricts both contracts,, and is not affected by any parol evidence as to intent, but relieves tbe defendant from liability because of deviation. 2 Philips on Ins., 2119. Clageli & Hill vs. Hall, 9 G. & *J., 81. 1 Greenlf. on Ev., 277, 278, 281. Creery vs. Holly, 14 Wend., 25. 36 Eng. Law & Eq. R., 113. 2 Parson’s Maritime Law, 34, 35, and cases cited.</p> <p>3. That if parol evidence went to tbe jury as to the character and circumstances of tbe contracts, the seventh prayer of the defendants should have been granted.</p> <p>1. The plaintiff’s second prayer, as offered, ought to have been granted. It embodied tbe hypothesis of. the plaintiff’s first prayer, and excluded all fraudulent conduct on the part of tbe master and crew. This was conceding more than the defendant had a right to ask, for tbe policy expressly assumed the risks of “barratry of tbe master and mariners, and all other perils, losses and misfortunes, whereby the said vessel, or any part thereof, shall he lost.” The object of the prayer was to prevent the jury from speculating as to whether the master and crew might not have pursued, after the bursting of the feed-cock, a more judicious course than stranding the vessel. But, with the addendum of the modification by the Court, the plaintiff’s were bound to satisfy the jury, that not only was there no fraud, hut no negligence on the part of the master or crew. The plaintiffs might well have complained of the instruction as given by the Court; but the defendant, clearly, has no just cause for doing’ so. Bush vs. The Boyal Exchange Ins. Oo., 2 Barn. & Aid., 82. Walker vs. Maitland, 5 Barn. ’<& Aid., I'll. Bishop vs. Pentland, 7 Barn. (& Ores., 219. The Palapscb Ins. Oo. vs. Coulter, 3 Peters, .222. Columbia Ins. Co. vs. Lawrence, 10 Peters, 517. Waters vs. Merchants’ Louisville Ins. Co., 11 Peters, 220. Gen. Ins. Co. vs. Sherwood, 14 Mow., 366.</p> <p>3. The defendant’s fifth prayer relates to what is called, “the steamboat clause,” and presents the appellant’s theory of its construction and effect. The prayer was properly rejected. It could not have been granted, without declaring, that, by force of this clause, the operation of the rule, “próxima causa, non remota, spectatur,” was excluded in this case; nor without declaring, that by force of this clause, loss by stranding of the vessel is within the ■exception; nor without giving to the language of the clause (the insurer’s own language) a broader meaning than the words used naturally import, and a more extended operation than the object and the spirit of the exception .require. A clause of this hind- is, for the first time, how presented to this Court. It has, however, been before the Courts of Pennsylvania, and the decisions have been against the theory of this prayer. Western Ins. Co. vs. Cropper, 32 Penn. State Bep., 351. .</p> <p>The sixth prayer of the defendant was framed on the notion, that because the particular voyage, originally insured, was described in the policy as “via the Chesapeake and Delaware Cañal to Delaware Bay, and from thence by sea to New York,” ex consequenti, the second voyage must be restricted in like manner, although the voyage described in the memorandum is “from Baltimore to New York,” without any restrictive words. The memorandum is not a continuation or renewal of the former insurance, but is a new and independent contract, endorsed on the old policy, (which was functus officio, as the voyage therein mentioned had been performed in safety,) instead of being endorsed on a blank policy. It was a new contract, because for a new voyage and for a different amount, and the, “ steamboat clause,” which was not in the original contract, is here introduced. Where the course of the voyage to be taken by the vessel is intended to be restricted to a prescribed track, it must be so inserted. But whore the terminus a quo, and the terminus ad quern, are merely given, the Her navis is left free, except that there must be no deviation from the voyage (viagium) insured. Steamers are made to navigate the seas, and an insurance “from Baltimore to New York,” covers the perils of the sea, from port to port, unless otherwise expressed. 1 Arnold on Ins., see. 133, p. 336. 1 Phillips on Ins., sec. 192,p. 552.</p> <p>If the underwriters intended to confine the steamer to “ the Chesapeake and Delaware Canal to Delaware Bay,” as in the former voyage, it ought to have been so expressed in the memorandum. The absence of such restriction is very suggestive of an intention to impose no restriction on the course of the second voyage, except the restriction imposed by commercial usage. Such a memorandum as this is equivalent, in America, to a formal policy, embodying tbe contract expressed in the memorandum-. 1 Phillips on Ins., see. 13, p. 11. 1 Duer on Marine Jns., 107.</p> <p>The evidence of Mr. Rhodes, however, expressly established that a larger premium was exacted, because of the increased risk of an outside passage. His evidence was clearly admissible to shew, if there was any ambiguity, the intended track of the steamer. It does not add to, vary or-contradict any part of the memorandum. It cleared a supposed ambiguity. 'Vide, for illustration, Slorer vs. Elliot Fire Ins. Oo., 45 Maine Hep., 179.</p> <p>The defendant’s seventh prayer related to the second insurance, namely, on freight and cargo. That insurance was by a formal policy, and it described the intended voyage “ at and from Baltimore to New York.” This prayer assumed the correctness of the defendant’s sixth prayer, and, of course, was properly refused if the sixth prayer ■was erroneous. Besides this, without any reference in either instrument to the other, it sought to control the construction of the policy on freight and cargo by the supposed meaning of the insurance on the vessel.</p>

<p>Inn-Keeper: Liability op por Goods Lost or Stolen. — Inn-keepers are liable for goods of a guest which are brought to him within the inn.</p> <p>Á delivery of the goods of a guest into the custody of the inn-keeper, is not necessary to charge him with them; for although the guest does not deliver them, or acquaint the inn-keeper with their whereabouts, still, the latter is bound to pay for them if they are stolen or carried away, even though the person who may have stolen them, or carried them away, is unknown.</p> <p>íhere are exceptions to the liability of inn-keepers, — as inevitable accidents — the acts of public enemies — and the acts of the owners of property or their servants. This last exception must be construed to mean a discharge of liability where the owner takes control of his property, though it be still infra hospiiivm, and its loss or injury may be attributed to his own neglect.</p> <p>--: Evidence: Negligence. — it is not necessary, when the goods are proved to be lost, to prove negligence in the inn-keeper to make him liable for the loss.</p> <p>The evidence of neglect on the part of the guest must he confined to the period while he was a guest at the inn; and evidence is inadmissible fending to show the neglect and inattention of the guest previous to his becoming such, or his subsequent conduct after leaving the inn.</p>

<p>Resulting Trust. — A resulting trust must arise at the time of the purchase' of the land sought to he affected with it. It cannot arise from subsequent payments.</p> <p>Lapse op' time: Limitations in Equity. — The bar of-the statute of limitations in equity, in cases of fraud or mistake, begins to run from the time of the discovery of the fraud or mistake, and not before.</p> <p>Where G. purchased land and took a bond of eonveyance in his own name, and P., the father of G., and for whom the land was alleged to have been purchased, was mad'e acquainted in 1835 with the facts of the bond of conveyance and the deed in conformity therewith having been taken in the name of his son,- and in 1856 the heirs of j|j?]iled a hill to have a resulting trust established in their favor, as against G., who had held the land adversely during that period, he, his heirs and assignees, Held:</p> <p>That the claim was barred by lapse of time.</p>

- The bill states, that in the month of March 1849, and for a long time'previous, the appellee owned a house and lot in Sharpsburg, Washington County, and that she resided, in another house owned by her, in which also her son, George Stiffler, resided with her.

Rep., 255. The question now presented, which is stated in the opinion of this Court, was submitted to the Court without argument:' — Bowie, C. J., Bartol, G-oldsborough, and Cochran, J.

Price, (now appellant,) to the Circuit Court for Baltimore County. On tbe 6th of May 185?, tbe said John O. Price filed in tbe Orphans’ Court of Baltimore City, a writing purport-.. ing to be the last will of Charcilla C. D. 0 wings, of Baltimore County, then lately deceased. A caveat against granting probate to this paper was filed by the said Francis T..

.Frances T. D. Taylor, in the Orphans’ Court for Baltimore City, contesting the validity of the will of Mrs. Char-cilia C. D. Owings, which two days before had been offered for prohato by John O. Price, the appellant in this case. On the same day Price filed an answer to the caveat, and the attesting witnesses to the will were examined and cross-examined before the Court, by tho counsel for the respective parties, and their evidence committed to writing.

The declaration charged that the defendants had broken and entered upon the plaintiff’s laud called ‘ffi’he Anderson Farm,” and then and there “took possession of tbe same, an I then and there trod down, trampled upon and destroyed the plaintiff’s grass and crops,” &e. The defendants pleaded separately. The Cumberland Coal and lion Company pleaded the general issue, and also that at the time of the alleged trespasses the land in question belonged to it.

The material allegations of the bill of complaint are set forth in the opinion of this Court. The prayer of the bill was for a conveyance of the lands referred to, and a specific performance of the contract alleged in the bill, and that the Canton Company be forever enjoined from prosecuting the aforesaid suits at law, and for further relief. The following are the complainant’s exhibits Nos. 1 and 2, filed with the bill: .

The declaration stated, “that the defendants wrongfully deprived the plaintiff of the use and possession of the plaintiff’s goods, that is to say, one hundred barrels of flour.” To this the defendants pleaded “that the flour mentioned therein was taken hv the sheriff of Baltimore City, under and by virtue of an attachment on warrant issued out of this Court, commanding him to take the goods and chattels of certain parties trading under the firm and style of Howard & Poor;…

• This was an action of replevin, brought by the .appellees against the appellant, on the 22nd day of January 1857, to recover possession of one hundred barrels of flour. The facts are fully ¡.stated in the opinion of the Court.

On the 6th day of J uno 1862, the mother of an illegitimate child appeared before a magistrate of Allegany County, and made oath that she was delivered of said child on the 19th day of June 1861, and that the appellant was its father. On the 16th of June 1862, the magistrate issued his warrant .against the appellant, who, on the same day, entered into a recognizance before the magistrate to answer the charge at the.ensuing term of the Circuit Court for the. county.

Coulson; clearly the executor could not pay it to the appellee. The appellant submits, that upon the appellee rests the burden of proof, that the executor received interest or made use of the money for Ms own profit or advantage. Upon the hearing of the appellee’s petition in the Orphans’ Court, no allusion was made to the question, of interest in the argument of the case.

Akpeaíj from the Circuit Court for Prince George’s County. Action upon a constable’s bond, brought October 28th, 1859, by tlie appellant, against tbe appellees, as sureties upon said bond. Tlie defendant pleaded limitations, to which plea the plaintiff demurred. The Court below, (Crain, J.,) overruled the demurrer, and the judgment being for tbe defendant, the plaintiff appealed. The facts of this case are more fully stated in the opinion of this Court.

Cross-Appeals from the Equity side of the Circuit Court for Prince George’s County: Bill in Equity filed by Jones and others against Hall and. others, November 9th, 1857. - These appeals are taken from an order of the Court below, (Grain, J.,) passed June 9th, 1860: the appeal of Hall and others from that part of the decree directing a conveyance of the legal title to the land in question to the complainants; and the appeal of the complainants from so much of said decree as…

Writ or Error from tbo Circuit Court for Harford County. Tins was the case of an indictment for obstructing a public road. The facts of the case are fully stated in tbo opinion of tbe Court. 1st. That the county commissioners have full power to •open any new roads, as in their opinion may be most to the advantage of the public, and whether a road be a cul de sac, •or a thoroughfare, they have equal power to open it. Act of 1822, ch. 18.

Swearingen, a parcel of land in Washington County, in the State of Maryland, of about fifty-seven acres, for §22.25, or §22.75 per acre, and that lie paid thereon about $500 or $600. Held: until a repayment. Why hold the deed until the money was repaid? 6th. As to the mutuality of the contract. The cases in 8 Md. Gh.

Appear from the Circuit Court for Charles County : Action of Ejectment by tbe appellant against the appellee. Mrs. Anne R. Saxton by her will made in 1858, devised certain land to her son and only child, Joseph A. 'Posey, “and the heirs of Ms body lawfully begotten,” with a void limitation over. Joseph A. Posey died without ever being married and intestate, leaving the appellant John Y. Posey, his paternal half brother, and the appellee John L. Budd, his maternal uncle.

“For and in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, we have this day purchased from John W. Beall, and agreed to receive from tbe 10th to the 20th days of January next, at his option, one thousand barrels of Ohio Super flour and one thousand barrels Howard Street flour, we paying for tbe same at the rate of nine dollars per barrel, on the day said flour is ready for delivery. 1.000 Ohio, ) S. O. Oelrioiis & Lurman, 1.000 How.

<p>Kvidence; Contract; 'Parties. — Upon a contract for the sale of Hour deliverable at a future day, a valid tender of the flour was made’ on the day contracted for, and acceptance refused on the ground that the contractivas at an end; and this tender was proved by a witness at the trial of an action brought upon the contract for the non-acceptance of the flour. Another witness testified to a tender made by him on the proper day, and being then asked by the plaintiffs’ attorney, if he knew the flour tendered to be the plaintiffs’ flour, said he did not know any thing of it himself, but he was informed by one of the firm in whose warehouse the flour then was, that it was the plaintiffs’ flour, and was told by him to tender it as such. The defendants objected to the admissibility of this evidence of the statements made to said witness, but the Court overruled the objection and permitted the evidence to go to the jury. On appeal, Held:</p> <p>1st. That although the objection to the evidence would have been well taken, if this evidence had stood alone, yet, as the previous evidence showed a tender and refusal which was equivalent to a waiver of any further tender, the evidence objected to was immaterial, could do no harm, and its admission was no ground for a reversal of the judgment.</p> <p>2nd. Where the original promisees in a contract, assign part of their interest, after the contract is made, it would he a mis-joinder to make the assignee of such interest a plaintiff, jointly with the original promisees in an action on the contract.</p>

The.facts of this case are stated in the opinion of this Court. That the witness was incompetent, and the objection to his examination well taken, is supposed to be a settled question in this State.

Axxpeal from the Circuit Court for Washington County: This suit was instituted by the appellee against the appellants, on the 20th of June 1850, in the Circuit Court for Allegany County, whence it was removed to Washington County. The plaintiff sued in assumpsit for wheat sold by him to the appellants as partners, and also for wheat sold to them as.partners by Amon Wilson, who assigned his claim to the plaintiff.

1th. of June 1860. The facts of the case &re sufficiently stated in the opinion of this Court. The judgment in this case was Iriíerlocútory in its character, and such “whereby the right of the plaintiff was established, but the damages sustained by him” could not be ascertained without the intervention of a jury. Act of 1794, ch. 46, sec. 2.

Appit.au from the Circuit Court for Howard County : Tbis suit was instituted by the appellee against the appellants, on the 26th of August 1862, upon a collector’s bond,-which, as well as the evidence, are sufficiently set forth in the opinion of this court. The defendants first pleaded in abatement, that the action was not instituted by the State’s Attorney for Howard County, which was overruled by the Court. The defendants then filed the following pleas: 1st Plea.

Mary’s County : This is an appeal from an order quashing a writ of attachment, issued out of the Circuit Court for St. Mary’s County, (Brent, J.,) upon a judgment recited in the writ to have been rendered in the Superior Court of Baltimore City. The facts of the case sufficiently appear from the opinion of this Court. In support of the appeal it will he insisted.: 1. That the short copy is sufficient in form to sustain the fieri facias to St. Mary’s .County.

vondor’s lien against certain leasehold estate sold by her to tbe appellant. The facts of the case are fully stated in the opinion of this Court. The appellant contends that the decree is erroneous, upon the following grounds: 1st, That tho appellee has no lion against the leasehold property sold by lior to tho appellant ibi; the purchase money, or any part thereof. Winchester vs. Brooks, 2 H. & J., 1. Lupin vs. Marie, 6 Wend., 11. James vs. Bird, 8 Leigh, 510.

Mitchell, (reported ante p. 244, &c.;) and after the decree of affirmance passed in that case, she filed this petition, asking that the decree might be rescinded and the cause remanded, in order that an account might he taken of the rents and profits of the Myrtle Grove estate.