Volume 3 — Gill & Johnson's Maryland Reports

ery. Motion to dismiss the appeal. In this case a bill was fded on the 21st of May, 1825, by Colegate D. Owings, against the appellee, Charlotte C. D. Owings. On the 20th February, 1828, Bland, Chancellor, decreed in favor of the defendant, from which decree, an appeal was taken, to the then ensuing June term of the Court of Appeals, in the name of the complainant, Colegate D. Owings.

These were actions of Assumpsit brought by the appellee, Meichel De Young, against Matthew McLaughlin, John Reed and William Simpson, on the 27th July, 1826. They were founded on promissory notes, which the defendants were alleged in the declarations to have made as co-partners in trade, under the firm of McLaughlin, Reed and Simpson.

The defendant in error, was tried on the following indictment, in Baltimore City Court, at June term, 1830. “ State of Maryland, City of Baltimore, to wit: The jurors of the State of Maryland, for the body of the city of Baltimore, do upon their oaths present, that John Dent, late of the city aforesaid, negro, otherwise called Jack Dent, on the 15th day of April, 1830, with force and arms, at the city aforesaid, in and upon one Joseph Daiger, then and there being one of the…

Appeal fiom Chancery. This was a bill filed in the Court of Chancery on the 19th June, 1824, against the heirs, devisees and administrator, and purchasers from the heirs and devisees of Jacob Gibson, deceased, (the appellees,) by James McCormick, Jr. (the appellant.) The object of the bill was to enforce the payment of a promissory note of Jacob Gibson, dated the 18th October, 18IT, payable five months afterdate, for $2500, which had regularly come to the hands of the…

This was á petition filed by Charles Wilson, on the 2nd August, 1828, as one of the distributees of John Wilson, late of Baltimore county deceased, claiming his proportion of the estate.

The appellant, Thomas Owens, a minor, by his prochein. ami, filed his bill of complaint against the appellee, John Collinson, on the 9th of May, 1826. The bill stated that one Edward. Collinson, of Anne Arundel county, died intestate, and without issue, sometime in the year 1823, possessed of a considerable personal estate, leaving the complainant, (a sister’s son) and several brothers and sisters, his next of kin, and personal representatives.

This was an action of covenant brought by C. L. Boehme, the appellee, against E. L. Finley, the appellant.

This was an action of Debt, instituted on the 3d July, 1827, by the appellant, against the appellee.

Appeal form Baltimore County Court. This was a Scire Facias, against MeicTiel De Young, as special bail of C. E. Chevalier. The writ issued on the 2d August, 18.28. At September term, 1826, of Baltimore County Court, the defendant had become the bail of Chevalier, against whom the present plaintiffs obtained judgment at September term, 1827.

This was an action of Debt, brought on the 15th September, 1826, by the appellant, against the appellee, on the following single bill : “ Twelve months after date, we or either of us, do promise to pay or cause to be paid unto George P. Merryman, his heirs or assigns, the just sum of $400, it being for value received of him. Witness our hands and seals, the 25th June, 1808.

Cross appeals from Baltimore County Court. This was an action of Debt brought in the name of The State of Maryland, for the use of the Justices of the Levy Court of Baltimore county, on the 14th of March, 1826, against the appellees, John II.

John Sands, as permanent trustee of George W. Bailey, filed his petition in the Orphans Court of Baltimore County, to recover from the appellant a sum of money which he alleged was due to Bailey prior to his insolvency, from Browning's estate.

Cross Appeals from Baltimore County Court. This was an action of Debt commenced on the 31st of January, 1825, in the name of the State of Maryland, at the instance, and for the use of Eliza Ann Kirk, against Alexander Fridge, on a bond executed by one Owen Dorsey as the principal, and the said Fridge and another as sureties, dated the 11th of April, 1817, conditional for the faithful discharge of the trust of said Dorsey, as guardian to the said Eliza Ann Kirk and Ann C.…

This was an action of Trespass quare clausum fregit, brought by the appellee, against the appellant, on the 5th of March, 1828. The defendant pleaded not guilty, and issue was joined.

This was an action of Debt commenced on the 13th of January, 1825, by the appellees, George Eliicott, and ethers, as surviving partners of John Eliicott, of John, against the appellant, Richard G. Stockelt, on the following single bill: “ I promise to pay unto Eliicott and Co., in one, two and three equal annual instalments, the sum of £594 3s. 9 The defendant pleaded usury, and payment, to which there were issues.

The bill which was filed on the 28th of December, 1825, stated, that some time in the year 1817, the complainant (the present appellant,) purchased a mill-seat and mill, on a water course called “ Piney Branch,” being part of a tract of land called the “ Resurvey on part of Isaac’s Park,” containing two acres ; that for the purpose of conveying water to his mill, with greater convenience and effect, he shortly after his aforesaid purchase, by the leave, and with the consent…

The bill in this case was filed by the appellee, Dorcas G. Bourne, against the appellant, William E. Hungerford, on the 21st of December, 1819. The following statement of the ease and the proceedings in Chancery, is extracted from the opinion of the judge, who pronounced the judgment of this court.

<p>Appeal from Anne Arundel County Court.</p> <p>Ejectment for a tract of land called “the Valley of Owen,” commenced by Allen Thomas, the lessor of the plaintiff, against the appellees, Samuel Godfrey and others, on the 29th March,’ 1826. The defendants pleaded not guilty, and took defence on warrant. A warrant of resuryey issued and plots were returned. Defence was taken for the whole of the tract of land called “Stout,” as located by them on the plots; for the tract called “ West llchester,” as located by them upon the plots; for the tract called Caleb’s Vineyard,” as located by them; for the tract called “Lillie-worth,” as also located by them; for all that part of the tract called “Prestedges’ Folly,” (as also located by them) which lies to the west of the third line of the Valley of Owen, as that line is located by them, in their second location of the Valley of Owen; and for all the other land which lies south and west of, and upon said location of said third line, and which is included in plaintiffs fourth location of the Valley of Owen, and which by a written agreement between plaintiffs and defendants, on file in the cause, is admitted to be covered by the location of the tracts called “Timber Neck,” “Jefferson,” and “ IAttleworth.”</p> <p>1. At the trial the plaintiff read in evidence to the jury subject to all exceptions, the certificate of the “Valley of Owen,” issued on a warrant of resurvey returned by Richard Owen, on the 7th of September, 1703, describing the said land as “beginning at a bounded hickory on the side of a hill on the south side of the main falls of Patapsco, and respective to the west Chew's Resolution Manor, and running with the said manor south 53 degrees west, 200 perches to a bounded hickory, then north-west 340 perches, to a bounded white oak, then north 53 degrees east, 250 perches, to the main falls, thence with the main falls by a direct line to the first bounded tree, containing, Sec.” And also with like exception, read in evidence the patent for the said tract, granted to Richard Owen, on the 20th May, 1705. The description of said tract in the patent is as follows: “Beginning at a hound hickory, on the side of a hill, on the south sidé of the main falls of Patapsco, respecting to the west Chew's Resolution Manor, and running with the said manor, south 53 degrees west, 200 perches to a bound hickory, then north-west 340 perches to a bound white oak, then north 53 degrees east, 250 perches to the main falls of, with the main falls by a direct line to the first bound tree, containing, Sec.”</p> <p>And the plaintiff offered to prove by other title papers, a title in the lessor of the plaintiff to the said tract of land, derived from the said Richard Owen, the patentee; and gave in evidence the certificate of a tract of land called “Chew's Resolution Manor,” surveyed for Samuel Chew, the 15th April, 1698. The defendants then objected, that the certificate, and patent of “ The Valley of Owen” herein before mentioned, were inadmissible in evidence, because there was no location upon the plots of said tract, by the plaintiff, corresponding with the description, and calls, in said certificate, and patent; winch objection the court sustained, and instructed the jury that said certificate and patent were not admissible, the same not having been located to bind on a tract of land called “ Chew’s Resolution Manor,” as required by the peremptory call in said certificate and patent. The plaintiff excepted, and the verdict and judgment being against him, he appealed to this court.</p>

The hill which was filed in this case by the appellees, John Brewer and Adam Troup, against the appellant, John Hoye, Jacob Fiery, and others, on the 23d day of January, 1829, stated that Henry Fiery died seized of a large and valuable real estate, which he devised to his three sons* Henry, Joseph and Jacob, to the last of whom he devised a . tract of land lying in Franklin county, Pennsylvania.

—Assumpsit by tbe appellees, Thomas and Philip Baltzell, against the appellant, Christian Hysinger, instituted November 13th, 1826, for goods, wares and merchandize, sold and delivered by the appellees, to the appellant and John Strealey. Non Assumpsit and Limitations were pleaded.

In the year 1816, Abraham, Jarrett filed a bill in the Court of Chancery, settingforth that he sold certain tracts of land called Scott’s Hopewell, and Beall’s Camp, to Arthur Rider, in the year 1811; that Rider paid only part of the purchase money, and took possession of the land; that Rider died intestate, in the year 1814, leaving Arthur Rider, Jr. and Sarah Rider, since intermarried with William Byrnes, his heirs at law; that letters of administration were granted to…

This was an action of Trover for a quantity of leather, which originated in Baltimore County Court, on the 21st of April, 1829, and was afterwards removed to Harford County Court, upon a suggestion, according to the act of assembly. The appellee in this court, was the plaintiff in the court below—issue was joined upon the plea of not guilty. 1.

<p>It is a general rule in the construction of wills, that a limitation which may operate as a remainder, shall not be construed an executory devise.</p> <p>Tenant in fee, on the 8th May, 1775, devised as follows, “ I give and bequeath the whole of my estate, both real and personal, unto my five daughters, to them and their heirs for ever, to be equally divided amongst them; and it is my will, that if either of the said children, die without issue lawfully begotten of their body, in that ease, the part of the said child be equally divided among my surviving daughters.” Held, that this will being made before the act to direct descents, the devisees each took estates tail general, with cross remainders in fee, under the limitation over to the survivors.</p> <p>It is a general rule, that where there are no particular and sufficient words used for that purpose, surviving shares in a devise of real property will not, upon the decease of one who took as a survivor, survive again.</p>

This was an action of Assumpsit, instituted by the appellee, John Cooper, against Cornelius McNulty, the appellant, on the 30th January, 1826, to recover the amount of two bonds, dated on the 21st August, 1819, conditioned each for the payment of $533 33, which the declaration alleged, the plaintiff, at the request of the defendant, had delivered to, and deposited with the defendant, in the years 1822 and 1823, which bonds, or the value thereof, the defendant promised upon…

This was an action on the case for slander, commenced by George Cost, (the appellee,) against David Arnold, (the appellant,) on the 27th of January, 1827. The declaration contained six counts, but a nolle 'prosequi was entered on the fourth, fifth and sixth.

On the 18th of March, 1828, the appellee, Joseph Everhart, as administrator d. b. n. with the will annexed, of Jacob Wattman, obtained a warrant for an attachment, against the lands and tenements, goods and chattels, of David Shawen and George W. Shawen, and at the time of filing the same, exhibited the following short note: “Action of assumpsit in Frederick County Court.

This was an action of Debt, commenced the 25th November, 1828,by the appellant, Edward W.Belt, against the appellees, on a replevin bond, dated July 16th, 1828.

This was an action of Assumpsit, instituted by the present appellants, against the appellees, on the 31st of July, 1836, upon the following written contracts : “Know all men by these presents, that we, II G. O’Neale and Jonas Smith, are held and firmly bound unto John JB.

On the 6th of November, 1829, the appellants, William Gaither and Joshua Warfield, filed their petition in Chancery, stating among other things, that previously thereto, to wit, in July, 1826, a decree had passed for the sale of the real estate of Nicholas Welch, deceased, for the payment of a debt due from him to one George Ellicott.

The present hill was filed by the appellants, the President and Directors of the City Bank of Baltimore, James Sterrett and others, against the appellee, on the 16th day of October, 1827: it stated that James Sterrett, with one Eli Simkins, and John P. Usher, parties complainants, carrying on business under the firm of Simkins and Usher, and Covert Haskins, contracted with the managers of the Washington Monument Lottery, 3d class, for the purchase of the scheme: that the…

This was an action of Assumpsit, commenced on the 1st August, 1826, by th e appellee, against the appellant, on a promissory note payable at four months from the 25th of September, .1815, of which the appellant was the maker, .endorsed by one Philip Buzzard to J. R. Buzzard, and by him to the plaintiff. The defendant pleaded nonassumpsit and limitations, to which there were issues. 1.

Ejectment for a tract of land lying in Frederick County, called More Bad than Good, containing 265 acres. Held: used, occupied, enjoyed or accepted, reported, taken or known, as part or parcel of, or belonging to the same, and the reversion, and reversions, remainder, and remainders, rents, issues, and profits, of all and singular the said premises with their appurtenances, and all the estate, right, title, interest, property, claim, and…

On the 9th of September, 1818, Michael Klinefelter’s lessee, (the present appellant,) brought an Ejectment for a tract, or parcel of land in Baltimore County, called Lot No. 191, against one Solomon Richards, the tenant in possession. The following statement of the case is taken from the opinion of the Judge, who pronounced the decision of this court.

On the 9th of July, 1828, the appellant brought Replevin, against the appellee, to recover a negro slave, alleged to be the property of the appellant. The defendant pleaded, linon cepit” property in himself, and limitations, to which they were replications, and issues were joined. 1.

Ejectment by the appellee, against the appellant, com-1 ¡menced on the 6th of March, 1826, for two tracts of land, called “Posey's Chance,'' and “Hopewell's Addition.'' 1. At the trial the plaintiff read in evidence a writ offieri facias, issued upon a judgment rendered at March term, 1824, at the suit of the State of Maryland, for the use of the plaintiff, against Samuel Hanson.

Assumpsit by the appellees, as the endorsees of the following promissory note, against the appellant, William G. Penn, as the maker thereof, commenced on the 11th of October, 1827. “ $80. Sixty days after date, I promise to pay to John Morrison, or order, eighty dollars, without defalcation, value received. Wm. G.Penn. May 21-si, 1818.” Endorsed. “Pay to James Flack, 8f Co. April 24th, 1824.

This was an action on the case brought by the appellee, against the appellant, on the 10th of January, 1827, in Saint Mary’s County Court, and removed, upon the suggestion óf the defendant, to Prince George’s County Court.

This was an action of Assumpsit, commenced by the appellees, James Johnson, and Mary his wife, (formerly Mary Coomes,) on the 17th August, 1826, against the appellant, Elizabeth Green, executrix of James R. Green, deceased, which said James R. Green, and Teresa his wife, also deceased, were the executors of William Coomes, the father of the appellee, Mary.

On the 11th of August, 1826, the appellee filed her bill, against Henrietta Hall, since deceased, alleging, that on or about the year seventeen hundred and-she intermarried with a certain Richard Hall of Edward, who at the time of said intermarriage was seised in fee, of certain lands in Anne Arundel county, described in exhibits A and B, filed with, and made parts of her bill.

On the 10th March, 1825, a fieri facias issued out of Prince George’s Gounty Court, on a judgment rendered in that court, in favor of the appellee against the appellant. At the return day of the writ, the sheriff returned it— “ laid as per schedule and paid $574 09.

<p>W, by his last will devised as follows: “ I give and bequeath to my daughter A, the sum of $60, as an annuity, to be paid to her out of the profits of my real estate annually.” This is an annuity, and not a rent charge.</p> <p>This annuity being in arrear, the devisee filed her bill against the infant devisees of the land, their guardian, and the personal representative of the testator, alleging the annuity to be a charge on the land and its profits, and praying for an account—that the lands may be sold,—the proceeds applied to the payment of the annuity, so far as necessary, and the balance invested to meet future instalments, and for general relief. Ufad, that as the bill contained no allegation or suggestion of the receipt of the rents and profits by the defendants, or any of them, nor of the annual value of the land, nor of the application of the rents and profits, and did not call upon the defendants to make any disclosures upon these subjects, there was no issue, to which evidence, which had been taken in the cause in relation to them, could apply, and that there could he no decree in personam against the defendants, under this state of the' pleadings.</p> <p>The neglect of a defendant to answer a bill, upon which a decree pro confesso is passed, amounts to an admission only of the allegations in the hill.</p> <p>The answer of infant defendants, calling upon the complainants to prove the hill, only puts them to the. proof of what is charged, and entitles them only to a decree on the case made in the bill, when proved.</p>

On the 1st February, 1814, the appellees, James Salisbury and others, the heirs and representatives of one Andrew Black, filed their bill against John Roberts, Isaac G. Roberts, and John Gooding, the appellants, alleging, that the said Andrew Black, and one Thomas Black, both deceased, were in their life-time seized, and possessed as tenants in common, of a certain tract of land in Cecil county.

<p>Where a party at the trial of a cause makes a general prayer to the court which is refused, and the court then proceeds of their own accord to give a specific instruction to the jury, which was excepted to, this court upon appeal will review such instruction, although since the act of 1825 it would not have regarded the general prayer.</p> <p>In an action of assumpsit brought by W. & Co. to recover a portion of the instalments mentioned in the following agreement, dated 1st Dec. 1818, viz : “We the subscribers, promise to pay unto W. & Co. the sum we may subscribe as a payment for the steam boat S.in three equal instalments, viz. &c. It is hereby understood, that we, W. & Co. bind ourselves to appropriate the money subscribed in no other manner, but for the payment and use of said boat, and that each subscriber will hold an interest in proportion to the shares he may take. We, W. & Co. bind ourselves to run said boat from B. to &c. and use every possible exertion in our power to the interest of the said boat. The shares will be divided into 280, of $100 each.” It appeared that 51 shares of the stock had been subscribed for, of which the defendants had taken five. Held, 1. That it was not to be implied from the terms of this agreement, that W. &Co. were the owners of the steam boat. 2. That the signing of this contract was an imperfect act, of no legal obligation until the whole number of shares should be subscribed; and until that was done W. & Co. were under no obligation to perform their part of the agreement. 3. That W. & Co. having assigned, by way of mortgage, three-fifths of the said steam boat, after the signing of the agreement and before the bringing of the action, the consideration for the promise of paying the instalments contained in the agreement had failed, and therefore the action could not bo sustained. 4. That upon the issue joined in this case, the defendant could not show that at a meeting called by W. & Co. of the subscribers thereto, it was determined by them not to pay the subscriptions, upon the ground that W. & Co. had failed in their part of the engagement.</p> <p>Evidence offered to the jury for a particular purpose, may be properly rejected, though it might be admissible for some other object in the same cause.</p> <p>Under the act of 1825, ch. 117, the appellate court considers what particular point, or question the County Court has decided, and determines accordingly, whether it is correct or erroneous, and not whether the reasons assigned by the counsel on the record justifies what has been done.</p> <p>So where the admissibility of the testimony adduced, being objected to, whether it was admissible or not for the reason assigned, is wholly immaterial ; this court regards as the pointdecided below, the competency or incompetency of the evidence.</p>

ÁBspeae from Charles Comfy Court. The present was an action of Debt, instituted ór¡ tlie: oth August; 1825, in the name of the State of Mdryláhd,\t tfib instance, and for the use of William M.' B: Wilson,' ahd Sarah Q. his wife, against the appellee, Luke F. Jameson, on his bond, as administrator of Walter Jameson, deceased, to recover the distributive share, of the said Sarah Q. as one of the children and representatives of the said Walter, of whom there were nine. 1.

<p>Where a variety of facts have been proved, a prayer making a partial enumeration of them, and thereupon asking an instruction to a jury, will not be granted, if not sustained by a consideration of all the facts proved, which belong to the question, whether enumerated or not.</p> <p>An insured is not compelled in any case to abandon. He has an election which rests in his discretion ; but no right to claim for a technical or constructive total loss vests, until such election is made.</p> <p>An election to abandon for a total loss cannot be made, until receipt of advice of the loss.</p> <p>Intelligence of the loss of a ship derived from a newspaper, is sufficient advice to authorise an insured to abandon upon.</p> <p>The information which is sufficient to authorise the assured, to give notice to •the underwriter, that he abandons, must be of such facts and circumstances . as would sustain the abandonment, if existing in point of fact, at the time the notice is given.</p> <p>The mere stranding of a vessel, does not of itself, form a substantive ground of abandonment. The right to abandon on such an occurrence, depends on the attending circumstances.</p> <p>So where the assured addressed the following note to tne underwriter : “ I observe by the Boston newspaper of the 29th January, that the ship S, insured in your office, was driven ashore in a heavy gale of wind, the 6th of December, and by a Charleston paper of the 26th of January, that on the 13th she was not got off. In so dangerous a situation as Helvoet roads, it is to he feared a total loss has ensued, I therefore as a measure of precaution both for your interest and my own, abandon to you, and claim a total loss.” Heed, that this letter did notslate to the underwriter, a suffioientreason for the offer to abandon. A mere apprehension that a total loss may have taken place, does not authorise the offer.</p> <p>To justify the reversal of a court’s judgment, on the ground of their having given an erroneous instruction to the jury, it must appear that the appellant actually, or probably, did sustain an injury thereby. If it did him no prejudice, no matter how erroneous, it forms.no ground of reversal.</p>

1 1 Assumpsit by the appellant, as endorsee, against tbe appellee, as,the endorser of a promissory note for $-182 80, dated Washingtoh, March 3d l825j payable at eleven months, of which one. John Pic, óf that place, wás the maker. The general'issue was pleaded. • • ■ r'jv. • >:■ 1.

The case is sufficiently stated in the following opinion, delivered by his honor, Bland, chancellor, at December .session, 1830. This case standing for hearing, as to the sufficiency of the several pleas of the defendants, heretofore filed, and the solicitors of the parties having been fully heard, the proceedings were read and considered.

The present hill was filed by the appellee, Wm. Lee, as administrator of Mary Lee, on the 1st November, 1827, against the appellant, and one Daniel C. Sim.

On the 24th January, 1829, a bill was filed by the appellant,1David Stewart, as permanent trustee of Samuel Stone, against the appellees, Samuel Stone and Barbara his wife, and Jacob White. The bill stated, that Stone became indebted to one Chas. Salmon, in the year 1826, for goods, &c. sold him by Salmon, to the amount of $490 53, for which he gave his promissory note, payable in six months, from the 3d May, in the year aforesaid.