Volume 3 — Gill's Maryland Reports

Appeals, &o. The first of these appeals was from the Orphans court of Baltimore county, and arose upon the application of William Burton, for letters of administration on the estate of Ephraim Sims.

This was an action of assumpsit, docketted by consent to September term 1844, between the State as plaintiff, and die appellant as defendant, who pleaded non-assumpsit.

This was an action of assumpsit, commenced on the 3rd September 1842., by (lie appellee against the appellant. The plaintiff declared for work done, materials found, goods sold, for money had, and upon an insimul computasset. The defendant pleaded non assumpsit, on which issue was joined. 1st Exception. The plaintiff to support the issue on his part, offered in evidence the following depositions, viz: 1.

This cause was before the court at December term 1840, 11 Gill Sf John., 342; after it was remanded to the court of chancery the complainants filed their amended and supplemental bill, in which it was alleged, by E. 8., Samuel S., William B., and Robert S. Buchanan, children and heirs at law of James A. Buchanan, and sister and brothers and heirs at. law of Eliza S. Buchanan, complainants, that heretofore Eliza S. B. purchased of a certain George Torrance, one undivided…

This was an appeal from the court of chancery. On the 2nd July 1833, James A. Magruder, and Millicent, his wife, filed their petition on the equity side of Prince George's county court, having reference to the will of Wm.

This was an action of assumpsit, docketted by consent to January term 1840, by the appellees against the appellants. The general issue only was pleaded. At May term 1840, the parties filed the following statement, signed by counsel: Joel Vickers, on tho 20th September 1839, deposited in the Marine Bank of Baltimore $762, and received therefor the annexed certificate of deposite, which, it is admitted, is the usual form of certificate of deposite in the banks of this city.

<p>In 1828, a trustee, under decree, made a sale of land to II, who lie reported as the purchaser, and the sale was ratified. The purchase money was in fact, paid by S, who went into possession, and so remained, //was his agent, and bought for him. In 1834, // executed a lease of 14 acres of land to W, for the purpose of raising iron ore, and agreed, that should tho ore run out on the 14 acres, W should have four more, whenever he saw propel', adjoining the samo. The ore running out, W claimed to have tho four acres on the land in tho possession of S, adjoining the leased premises. Held : that >S'. liad an equitable estate in the land in controversy; th.it W had constructive notice sufficient to put him on enquiry ; and that H could not convey to him, or his assigns, any estate in the adjoining part claimed.</p>

The bill was filed on the 3rd January 1837, by John S. Gittings and Eleanor A., his wife, and James C. Gittings and Rebecca N., his wife, and alleged, that Cumberland Dugan was in 1798, seized and possessed of a veiy large real and personal estate.

<p>In 1807, G conveyed to S and others, two lots, on which a church had then lately been erected, in trust; "that the grantees upon being reimbursed all sums which have been, or may hereafter be paid and applied in and about the building of such church, release to such person or persons as shall or may be legally authorised to receive the same, all their estate in, &c. in trust for the said church. Jl, the surviving grantee, laid out a large sum upon the building, and devised the debt to the appellants, who, in 1837, filed a bill to sell the lots for repayment .of their claim, against the vestrymen of the church; no person had been authorised to receive a release from the grantees. The vestrymen answered the bill, assented to a sale, but disclaimed knowledge of the amount of S's expenditures. Held :</p> <p>1. The act of limitations was not a bar.</p> <p>2. The right of the complainants rested upon the equitable implication of a lien.</p> <p>3. The non-appointment of persons to receive a release, could only be accounted for by imparting to the vestry a knowledge of the fact, that the building of the church had not been paid for.</p> <p>4. The only proceeding by which a recovery could be had, was in rem.</p> <p>5. The assent of the appellees was a waiver of the objection, that the claim was a stale one, and abandoned by lapse of time.</p> <p>Where one and the same person is both cestui que trust and trustee, and the right to recover rests on a mere equitable implication of a lien, not recognised at law, and there is no adverse or uninterrupted possession relied on in bar, the act of limitations constitutes no defence.</p> <p>To entitle a party to the benefit of the act of limitations, the claim must be such that, if exempted from that plea, it could be recovered by an action in a court of law.</p> <p>The act of limitations to be available, must either be relied on by plea or answer.</p> <p>By the act of 1798, ch. , sec. 29, “No vestry can sell a lien, or transfer any of their estates or property belonging to the church, without the consent, at least, of five of their body,”—rector, church wardens, and bishop of the P. E. Church. The assent of vestrymen, to a decree for the sale of church property, in this case must be regarded as implied admission, that the debt claimed was due, as they have no power to make a voluntary sale of the property.</p> <p>A notice entitled in another cause to produce books in. evidence, merely filed in this, without proof of service, raises no inference against the party to whom the notice is addressed.</p> <p>Primary proof in equity, stands in the place of full proof, until full proof is demanded. Such a demand dispenses with and invalidates primary proof.</p> <p>It is a settled rule of evidence, that if a debtor defendant, seeking to discharge himself from a claim preferred against him, relies on the entries on the credit side of the account, rendered or exhibited by his creditor, he thereby admits in evidence against him, the entries on the debit side of the account; and such debits not being discredited nor disproved by testimony in the cause, establish the claim according to the account.</p> <p>In a controversy upon an account for work and labor, materials furnished, and money paid, after a lapse of twenty-four years, suit commenced, general proof of the nature and extent of the demand being in evidence, and free from suspicion, much less detailed proof should bo exacted from the claimant; than if, immediately after its origin, a controversy in relation to it had arisen.</p> <p>Signatures to receipts for money paid, being in the possession of the party and his representatives claiming under him, for more than thirty years, need not he proved. They are presumed to he genuine, when they relate to transactions, which are established as having occurred in conformity to the receipts, by general and collateral proof.</p>

This was an action of covenant upon a policy of insurance against fire, brought on the 12th Noyefnber 1842, by the appellant against the appellee, who pleaded non infregit conventionem. The plaintiff, to support the issue on his part, gave in evidence his application for insurance. Baltimore, Sept. 28th, 1839.

Mary's county court. This was an action of assumpsit brought on the 11th July 1843, by the appellee, who declared, that the appellant, on the 23rd January 1838, in consideration that the said E. TV., then administratrix as aforesaid, inhabiting in this State; that is to say, at, &c., had a settlement by which she paid to the said Philip all his right, title, claim and interest to the personal estate of Henry Turner; he, the said P., undertook and faithfully promised, that…

Mary's county court. This was an action of debt, brought on the 17th August 1840, by the appellant against the appellees. The plaintiff declared on a bond, executed 2nd May 1838, with condition, that Philip Clarke do, and shall prosecute, with effect, the writ of replevin recited in the bond, against the appellant, and shall well and truly return, &c., and pay and satisfy all damages.

This was an action of Ejectment brought on the 15th May 1838, by the appellees against the appellant. Held: possessed, cultivated and used up to the edge of Potomac river; that he never heard or knew the said land to be called Aspinall’s Hope until the day of survey; to'which evidence, for the purpose aforesaid, the defendant, by her counsel, objects; but the court were of opinion, that the evidence above offered, was admissible to go to…

This was an action of assumpsit brought by the appellant on the 16th December 1842, against the appellee, for articles sold and delivered by the appellant to him, to amount of $212.50. The defendant pleaded non assumpsit, and payment, on which issues were joined.

<p>Appeals from Prince George's county court.</p> <p>The record in No. 8, showed, that on the 13th August 1841, Thomas Baldwin, for the use of J. Owens, sued out a writ of ca. sa. against Robert Wright and Dewit Kent ', upon a judgment rendered in October 1838, for the sum of $360, and costs, returnable to the 2nd Monday in October 1841. The writ was returned cepi., as to R. TF., who moved to quash it.</p> <p>1st. Because the defendant had, subsequently to the rendition of , the judgment above recited, recovered a judgment in the same court against T. B., and sued out an attachment thereon, prior to the impetration of the said writ of ca. sa., and laid it in the hands of the said R. W, as will appear, &c.</p> <p>The county court quashed the writ, and discharged the defendant. T. B. appealed to this court.</p> <p>The record in No. 11, showed that on the 11th June 1840, Robert Wright sued out an attachment on a judgment rendered at April term 1840, against Thomas Baldwin. This writ not being returned, a second writ was issued on the 23rd November 1840, and returned, not attached; but was amended by the deputy sheriff, the high sheriff being dead, and returned, laid in the hands of Robert Wright, to amount of $355, and summoned, &c.</p> <p>The defendant,, Thomas Baldwin, moved to quash this attachment.</p> <p>1st. Because the amended return is made in the name of a sheriff, and purports to be made by a sheriff who died before the amended return, or motion therefor, was made.</p> <p>2nd. Because the writ of attachment was returned, not attached, to April term 1841, by the sheriff, and was renewed, by the order of the plaintiff, to the present term, who has thereby admitted the truth and validity of the said return.</p> <p>3rd. The return is not made on the oath of any person authorized by la,w to return such process.</p> <p>4th. The writ in this case, issued, when another writ of attachment, on the same judgment, was outstanding.</p> <p>At April term 1843, Robert Wright, the .garnishee, filed a short copy of the j udgment, of October term 1838. T. Baldwin use of J. Owens vs. R. W. and D. K., and motion to condemn that judgment under his attachment.</p> <p>The county court overruled the motion of Thomas Baldwin, to quash the amended return to die writ of attachment. The garnishee then filed a deposition shewing, that Joseph Owens, the c. q. use of the judgment aforesaid, had declared toR. W., that he, Owens, had no interest in the said judgment, and no knowledge of the said entry for his use.</p> <p>At April term 1844, Thomas Baldwin offered to file a plea, that R. W. had no goods of his in his hands, to be condemned, &c., and prayed judgment accordingly.</p> <p>On motion, the county court refused to receive this plea, and rendered judgment of condemnation of the goods, &>c., of T. B., in the hands of R. W. From this, Thomas Baldwin appealed.</p> <p>The facts of No. 9 and No. 12 are sufficiently stated in the opinion of this court.</p> <p>The record in No. 14 was an action of debt commenced by Thomas Baldwin, use of J. Owens vs. Wrighl and Kent, on the 23rd April 1836, returned non sunt, and renewed on the I3tli May 1836, returned cepi, as to R. W. The defendants both appeared. The cause of action appeared to be assigned by endorsement of the 1st February 1836, to J. Owens by Thomas Baldwin, and the plaintiffs recovered j udgment.</p> <p>At April term 1843, the defendants, W. and K. moved the county court for a rule in./. Owens, to show cause why the use to which the cause had been entered should not be stricken out, which was granted to the following term. The rule was served on J. Owens, and upon showing cause, he offered to swear to this court, Thomas Baldwin, the legal plaintiff, to prove the consideration of the original assignment. The county court (Key and G. Dorsey, A. J.,) refused to hear him, and the said J. Owens excepted.</p> <p>The court then ordered the use to be stricken out, and the said J. Oiuens prosecuted this appeal.</p>

This was an action of assumpsit, commenced on the 28th April 1841, by Samuel Fowler, in his life time, against the appellant. The pleadings are sufficiently stated in the opinion of this court. The declaration claimed damages in the sum of $1000. The jury found a verdict for $63. The defendant moved for a judgment of nonpros., which the court overruled, and rendered judgment for the damages claimed, to be released on payment of the verdict, interest, and costs. Exception.

This was an action of debt, commenced on the 9th September 1842, by the appellee against the appellant. The plaintiff declared upon the single bill of John F. Chesley and W. G. Sanders, Jr., dated 5th August 1841, payable nine months after date, to Eli S. Baldwin or order, for $100, with interest, assigned by him to the plaintiff, by assignment in writing, for value received, and then delivered to the plaintiff.

The claim in this cause, arose under the following deed: “This indenture, made the 11th October 1816, between William Warren and William B. Wood, managers of the new theatre, on, Ac., of the one part, and William Gwynn, Fielding Bucos, Jr., John Friclc, Jonathan Meredith, and George Hume Stewart, all of, Ac., trustees on hehalf of the subscribers to the stock in the said theatre, of the other part.

On the 3rd October 1842, Samuel Hamilton sued out a writ of scire facias, to revive a judgment recovered by him against the appellant, at April term 1828.

This was an action of assumpsit brought by die appellant against the appellee, and the whole cause is sufficiently stated in the opinion of this court. The plaintiff below appealed.

This was an action of replevin instituted on the 23rd March 1841, by the appellant against the appellee, for a negro woman named Harriet, and her four children, Washington, Mary, Joseph and John. The defendant pleaded non cepit, and property in herself, and property in another, and not in the plaintiff. The plaintiff joined issue on the first plea and replied property in himself, on which issue was also joined. The jury found a verdict for the defendant on all the issues.

This was an action of debt, brought on the 19th November 1843, on the bond of the appellant and others, dated 16th May 1840, conditioned for the performance of the office of collector of Washington county, and the several duties required of him by law.

This was an action of debt, brought on the 13th January 1844, by the appellee against the appellants, on the bond of Rudolph Herr, Jr., Jacob Brewer, Thomas Draper, and Rudolph Herr, Sr., dated the — October 1841, reciting:— “Whereas the above bound Rudolph Herr, Jr., thinks himself aggrieved by a judgment rendered against him on the 24th day of May last, by Daniel Hauer, Esq., one of the justices of the peace for the said county, at the suit of Michael P. Smith, for the sum…

Cross Appeals from the equity side of Harford county court. The bill in this cause, was filed on the 2nd August 1841, by M. C. Miller; and alleged, that William F. Miller was seized in fee, and possessed of several parcels of land, viz: “Hall's Rich Neck,'' “Wind Mill Hill,'' and “Margaret's Mount,'' described in a deed from John Wilson to William Miller; that in 1814, W. F. M. purchased, in fee, another part of “Hall's Rich Neck,” at a sale, made under the authority of…

The affidavit declared, that “ Charles M. Perry did also make oath, that he is credibly informed, and verily believes, that the said Alfred Cline is not a citizen of the State of Maryland, and doth not reside therein. ” An attachment was awarded and issued, and returned, “levied upon the credits of Cline, in the hands of the appellant, to amount of,” &c. The garnishee appeared, and pleaded :— 1st. Non assumpsit by A. C. 2nd. Nulla bona of A. C. in his hands. 3rd.

This cause was before the court in 1840, and is reported in 11 G. if J., 253, and then remanded for further proceedings.

This was an action of debt, brought on the 12th November 1841, by the appellant against the appellee, on the bond of Joseph Firey, Samuel Miller, and Jacob Firey, dated 3rd May 1824, conditioned, that Joseph Firey would perform the duty of guardian to his children, Lewis and Henry. The defendant, the appellee, appeared and pleaded non est factum, on which issue was joined. The jury found .a verdict for the defendant. 1st Exception .

This was an action of assumpsit, brought on the 1.1th January 1843, by the appellee against the appellant. The defendants pleaded non assumpsit, and the jury found a verdict for the plaintiff. 1st Exception.

This was an action of assumpsit, brought on 25th February 1843, by the appellee against the appellant. The plaintiff declared in indebitatus assumpsit, in the sum of, &c., for certain land and premises, bargained, sold and conveyed by the plaintiff to the defendant, at his request, &c. The defendant pleaded non assumpsit. The jury found a verdict for the plaintiff.

This was an action of assumpsit, commenced on the 13th September 1842, by the appellees against the appellant. The cause was submitted to the jury on the general issue, who found a verdict for the plaintiffs. 1st Exception.

On the 12th November 1834, Joseph McKim filed a bill to sell the real estate of his deceased brother, Samuel McKim; and on the 4th May 1835, a decree was passed for that object, and John Scoll and W. II Marriott, were appointed trustees to cany it into effect. They gave separate bonds, made a sale, and deposited the proceeds of sale in court.

This cause was before this court at June term 1837, and is reported in 9 G. J. ,51. The statement of the appellee’scouiísel, (T. 8. Alexander, Esq.,) is adopted by the reporter, as fully stating the condition of the cause.

On the 27th March 1837, the affidavit of Benjamin I. Cohen, of the firm of Jacob I. Cohen, Jr., Brothers, that Joseph I. Joseph, Solomon Joseph, and Moses Henriques, citizens of New York, partners, under the firm of J. L., and J. Joseph 6¡’ Co., were justly indebted to Jacob I. Cohen, Jr., &c., of the firm of J. 1.

On the 28th February 1845, Benjamin H. Ellicott filed his petition, alleging, that in March 1839, William E. George died, leaving a last will, devising his estate to all his children; but directed, that if his son, Philip T. George, desired to carry on the business in which the testator was engaged, he should have his whole real and personal property for that purpose, being accountable to his brothers and sisters for their shares; and constituted Eliza George, P. T. George,…

This was an action of assumpsit, brought on the 29th June 1840, by the appellant against the appellee, who pleaded non assumpsit.

On the 19th January 1824, James McCormick, by John Scott, Esq., his solicitor, filed his bill in chancery against Fayette Gibson; The Farmers Bank of Maryland; James Tilton and wife; Clara Tilton and others, claiming to be a creditor of Jacob Gibson, deceased, and having a lien on his real property; the defendants being devisees and mortgagees of the deceased debtor.

This was an action of assumpsit, brought against the appellants, a foreign corporation, incorporated by the State of New York, on 31st… Held: that a report by the surveyors of a port, into which a vessel put in, in distress, that the repairs of a vessel insured cost $20,000, when the vessel itself was valued at ,f10,000; and proof, that upon such report, and at the request of the master, the vessel was sold by order of a court of vice-admiralty, is sufficient evidence of a…

<p>It is a general rule of evidence, that the acts and admissions of a party on the record, are evidence, although he be but trustee for another; but this rule is not without exceptions.</p> <p>In an action against an administratrix, her admissions made before letters of administration had been granted to her, are not competent to charge her intestate’s estate. They were destitute of an essential requisite, viz., interest in the subject matter to which they related, at the time they were made.</p>

On the 4th November 1843, the appellants, in order to procure an attachment against the appellee, filed in the said county court, the following aifidavit:— “State of Maryland, City of Baltimore, to wit: Be it remembered, that on the 4th November 1843, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore aforesaid, personally appeared Peter Dickinson, one of the firm of Dickinson Brother: which firm is composed of Peter…

The bill in this cause, was filed on the 17th December 1844, by the appellants, and after referring to the last will of' Caleb Sears, it alleged, that shortly after making it, the said Caleb Sears departed this life. That after the death of the said Caleb, your oratrix intermarried with your orator; and that Dennis D. Sears, mentioned in said will, departed this life intestate and without issue, leaving Eliza, Ducretia, and Charles, his brother, and sisters, his heirs at law.

On the 27th September 1842, the appellee and others, filed their petition in the said court, stating, that they and others, were interested in having a road opened and straightened in Howard, District; to begin at the junction of the old Anne Arundel county road with the Columbia Turnpike, near, A commission was issued, and the route of the road surveyed; reported favorably upon, &c., and returned to the court.

Mary’s county court. On the 31st January 1845, William W. Boioling sued out a writ of fieri facias, upon judgment against George W. More-land and Henry G. Garner, returnable to the 1st Monday in March of that year. This writ was levied the 1st and 3rd February 1845; the property sold on the 7th March 1845, and the writ returned to tire county court. At March term 1845, the appellant moved to set aside the sale: 1.