Volume 3 — Harris & Johnson's Maryland Reports

Ejectment, for a. tract of land called Chatsyiorth, lying ip. Baltimore county. Defence, was taken on warrant, and plots wore made.

Apíeal from Baltimore County Court Bjectm'eni fot tx tract of land called Gist’s Inspection, lying in Baltimore county, containing 400 acres. Defence was taken on warrant, and plots were made, by which it appeared that the plaintiff located Gist’s Inspection, as beginning at I on the plots, which was not coünterlocated nor denied by the defendant, but admitted by hini to be the place of beginning «f Gist’s Inspection. ^ » » . ,. 5 1.

<p>The proceedings of the com» missionin’® of bankruptcy are not , evidence to prove tint act of bankruptcy committed by the bankrupt — the proceedings beings res inter ptfos prtn$ said not evidence According to the pxineiplesof the eotmntm.law,and pomade evidence, by the law®, of tbt V. which relate to this subject. « » . , , < *</p> <p>Whole the demise in a declaration m ejectment was stated to be op the 1st of January 3Pf>1, and tjte conveyance offered in evidence, under which tin? plaintiff claimed, was dated on the 23d of Ke{n nary 18C2 — Held, that an ejectment is an action to try iheripht of possession to t)u* land in controversy. The entry and otMcv, mid in the dts. laxaiiun, are fictitious, and substituted m the place of areal lease>ntiiuai entryendouster 'Ihetimi’of the demise is matiei of substance, aíul nottyjim, and .the plaintiff must show' a title in his lessors anterior to the tune of the demise, btcause without speh.titls. they comd not maike a real lease. - . 1 > • , • - ,</p> <p>In an action for the thesne proftst the plaintiff can recover profits from the time df the demise, w,rkout showing utfe, the due noeiu I t nip toncVded by it», But if Ue claims profits prior to the time of the <k mise, the deft mfant may controvert his title. ’ ' .</p> <p>The court will allow the plaintiff in t.jt ctnm.t To amend his declination, by clmnp’inp the time of the deii.jM', at any sime hi foie vex diet, on such turns as will impose no hard hips on the defindanu</p> <p>Th« second sexi'wn of the act of J809, ch 153. relative mjhe amendment oi judicial proceedings, dots BOt extend to muuers of substance,.but to i'oun ,’</p> <p>The plaintiii m < j^efrot xit grave xji evidence a grant to E L in 1673, for $ fact of land called L L; also an act ot assembly parsed m 17.->2, w'h.ieh rt cited that J E H had set forth that he was st Med and possessed of L I», tec. and diverted that b L should he <a d out pnd form part uici> t<nnt\ also that lot No 687 was part oí b L, so, claimed by J E H. and laid off as part of the said town; that, the tot w>as' conveyed by J EH to li 1), vyhenpossessed itiróm 1792 to 1796,,'when In couv* y ed it to A B, who auo possessed T until 1202, w hen he conveyed it t*> the lessors of the p.axnxjfi — behL that the plaintiff had no right to recover, there heiiig no title tedueed from the pi ¡.met t /, L L to J EH, and theie bemj* jio possession proved in A B, and those umie? whom lie claimed, suiLúent Vi'emitfe the piaipuifi to recover without sliovíug</p>

Ejectment for a tract of land called Franklin’s Neglect and Cockey’s Discovery, lyinp; in Baltimore county. The defendant, (now appellee,) took defence on warrant, and plots were made. ■ 1. The plaintiff at the trial gave in evidence the certificate and'patent of a tract of land called Franklin’s Neglect and Cockey’s Discovery, surveyed on the 14th of January 1802, for, and granted to, John Cockey, the lessor of the plaintiff, on the 23d of April 1803.

Mssumpsit, brought by the appellee against the appellant on the 14th of March 4801.

‘ Arpead from Baltimore county court. dsmmpsif, by the appellee against the appellant. The declaration contained two counts, one for money had and received, and the other for money lent. The defendant, in the court below, plead, ed non a&mmpsif, and an account in bar, which he filed and offered to set off, &c. General replication thereto, and issues joined.

By the record it appears, that a bill was filed on the loth of June 1772, by Amps Garrett, in his own right, and as admimsiraior, with the will annexed, of Peter Dicks, against Jacob Giles. The objects of the bill bchjg stated in the decrees of the chancellor, and in the opinion delivered by this court, they are here omitted. A subpena and injunction issued, as prayed for by the bill.

Ams.u. from Baltimore county court. Jlssumpsit by the appellant against the appellee, for money laid out, expended and paid. Plea, the general issue. At the trial the plaintiff proved that an action of ejectment had heretofore been instituted in the general court, by Charles Carroll and ■other.-.’ lessee, against the plaintiff and defendant in the. present action, for two tracts of land called Enlargement and Brown’s ¿¡¿venture.

This was a special action on the case, the declaration stating that a suit had been brought in the late general court against the appellee, to recover land of which the appellant was in possession, and that the appellant agreed to indemnify him if he would defend the suit, &c. The general issue was pleaded/ and at the trial the plaintiff, (the now appellee,) offered in evidence a record duly certi&ed, &c. of the proceedings in the suit above referred to, being an action of…

An action on the case was brought by the appellant, (the assured,) against the appellees, (the assurers,) on a policy of insurance, dated the 23d of October 1795, whereby the assured caused himself to he insured, lost or not lost, at and from Baltimore to the coast of Africa, with liberty of trading on the said coast, and at and from thence back to Baltimore a-gaits, upon the body, tackle, apparel, and other furniture of the schooner called The Industry.

; | h Error to Anne Arundel County Court. ' Trespass for mesne profits, brought by the defendant in error against the plaintiff in error, on the 22d of February 1806, for the use and occupation of a tract of land called Frog Range, from the 1st of January 1803,'until the 21st of February 1806.

This was an action of slander, brought by Alexander Mitchell, the appellee. The declaration contained four counts.

Actpal from a decree of the Court of Chancery, dismissing the,bill of complaint.

Ái'i'BAi. from Baltimore County Court. This was an action of replevin, brought by the appellee against the appellant. The defendant below, by bis avowry justified the faking the. goods, &c. being for one years rent in arrear, amounting to 8393 75, of a loi of «round leased by him to William Belton.

Ai'iTSALÍrom Worcester County Court. Ejectment for a tract of land called The Conclusion of Morehuss, otherwise called, &c. The defendant, (the now appellant,) took defence on the plots in the cause for a tract called Red Land. 1. At the trial the plaintiff offered evidence io prove the first boundary of The Conclusion of Morehuss to be at G} as located by him on the plots.

Appear from Baltimore County Court. This was an Action of mswmpsit.

Error fo the Court of Oyer and Terminer, &c. for Baltimore county. An indictment was found at September term 1810, for assaulting, and attempting fo commit So- ; domy, on the body of W C. The indictment contained two counts.

Appeal frojn Charles County Court. This was a petition for freedom; and under the act of 1804, ch. 55, s. 2, the petitioner, (now appellant,) exhibited her affidavit, stating that she believed she could not have a fair and impartial trial in that court, and by her counsel moved the court co direct that the pecord and proceedings should be removed as directed by the above mentioned act; but the court, [Clarke, A. J.] overruled the motion. The petitioner excepted.

.Assumpsit on a promissory note, aud for money had and received. Plea, the general issue. 1.

’ Appeal From Saint Mary's County Court. This was art action of assault and battery, brought by the present appellee. The defendánt, (the now appellant,)' pleaded not gúííty, anil son assault demesne, upon which issues were joined.

Wilmer, or order, for glOOO, and by Wilmer endorsed to the plaintiff. The declaration also contained counts for money lent and advanced, for money had and received, and for money laid out, expended and paid.

Aiteat. from Baltimore County Court from a judgment rendered in favour of the defendant in that court, in an action of ejectment brought to recover the possession of a lot of ground in the city of Baltimore, described by metes and bounds. The general issue was pleaded. 1.

<p>Wíifire a, ca*sa» ?a returned cept, and tlte pluiuiff «lot» not proceed ft» enforce the writ hv having* the deffmtfant commit* ted«5?enmltingtl»e sheriff, or having ir entered not called, it does not preclude the Tp'aiiittfffVom taking oiii a aewcfir. sa*.</p>

This was an action of ejectment, brought by the plaiuiiff below, (now appellant,) to recover a tract of land called Dundee. The defendant (now appellee,) took defence on warrant, and plots were made. At the trial the plaintiff read in evidence a patent for the tract of land called Dundee., granted to Robert Walters On the 18th of March 1746.

On the 7th of May 1807, a writ of attachment on warrant, under the act of 1795, ch. 56, was issued by the defendant in error, (the plaintiff below,) against the goods and chattels, lands and .tenements, of-the plaintiff in error, (the defendant below;) the writ was returned by the sheriff, “attached as per schedule.” In the schedule, among other property of the defendant below, included therein and appraised, was “his life estate in all the lands got by his wife, supposed to…

The nuncupative will of Samuel Brayfield, pronounced by him in the presence of three witnessess on the 22d of April 1807, two days before his death, he being then in his last sickness, at his own house, and after-wards on the 28th of April 1807, reduced to writing, and signed by the three witnesses in the presence of two witnesses, was offered for probate in the orphans court.

Error ip Frederick County Court. Ejectment to recover a leasehold interest in a tract of land called Lost and Found. Defence was ¡taken on warrant, and plots were made. 1.

Baltimore,• 10th July, 1801. Sixty days after date I promise to pay to Simon Wilmer, No. 28 Cheapside, Baltimore, twenty-five hundred dollars, for value received. Sami. Ringgold.” Thus endorsed, “S. Wilmer The declaration contained, besides a count upon the note, counts for money lent and advanced, for money had and received, and for money laid out and expended.

The cause, which is fully stated in the opinion delivered by this court, was argued before Chase, Ch. J. and Buchanan, Nicholson, and Fable, J.

<p>If rite ter m of a demise in the declaration in an action of ejectment, expired before the verdict and juc£ment in the com t below, the judffmen t is erroneous, and on appeal will be reversed. ' ;</p> <p>In such a case the’ coiut below, Under & proceden* do directing'a new trial, may enlarge the term of the demise.</p> <p>Where the plaintiff in ejectment gave in evidence & certifícate of «iivvey of the land ior which the action was brought called Notlar*s, Desire, fiiade lor If C m 1085, without showing a patent tor the land; ni»o a .deed iiom R C to MF, dated in 1729, for part of a tract of land called Notleifs Desire — —Held, that the deed could not'be jead in evidence,.</p> <p>If a deed from H tg N Jbc part of a tract of land, has been located on the plots, then a deed from H and N to J, for the same part of the said tract of land, peed not also be located.</p>

A «tv,.vi. from Talbot County Court. This was an action of trespass quarg clausum fregit. The land, upon which the trespass was ail aged to have been committed, vn*j caiii'd Knave Deceived.

Ahp.eal from Kent County Court. This action was similar to the preceding, and on the same bond.

This wag an action of debt by the assignee against the assignor of a hill obligatory. The defendant, (the appellant,) pleaded nil debe.t. I , 1. At the trial the plaintiff, (the apppllee,) offered in evidence a single hi!! executed by Joseph Calder, an the 32th of September 1803, whereby he promised to pay to Samuel Boyer, (the defendant,) hi? executors, &c. §100.

This was an 1 action of ejectment, brought to recover a tract of land ceiled The Addition, otherwise called Haile’s Addition, otherwise called Addition.

This was an action of ejectment for a tract of land called Chew's. Vineyard, originally brought in the late general coui;t, and on the abolition of that court transferred to the county court.

Covenant on a policy of insurance. The defendants, (now appellees,) pleaded non infregit eonventipnem, and issue was joined.

This was an action of ejectment for all that part of a lot of ground situate in the city of Baltimore, being part of a lot of ground distinguished on the plot thereof by the number 25, beginning for the said part at the end of 115 feet from the S W corner ot Conawago and Charles-streets, where they intersect each other, and running thence, binding on Charles-street 97 feet to Mushberger's line, thence westerly 150 feet 6 inches, more or less, ^-Liberty, or 10 feet lane,…

The ease, so far as is material, .appears to be fully stated in the, chancellor’s decree. Kilty, Chancellor, (December term 1807.) The bill originally filed was by Steuart and wife, against Mary Pottenger, as executrix of Robert Pottenger, to which an amendment was made, making John Gassaway a party defendant. A cross bill was also filed by M. Pottenger, ex-, 1 é'cutfix as aforesaid, against John Gassaway, who answered both bills.

Ejectment brought by the appellant to recover a tract of land called Merryman*s Lot, on separate demises of one fifth part by each of the lessors The defendant, (now appellee,) took defence on warrant, and plots were returned. 1. At the trial, the plaintiff read in evidence a patent granted to Charles Merryman and Nicholas Haile, on the 6th of May 1689, for Merryman’s Lot, containing 210 acres, more or less.

Afpkai, from Baltimore County Court». Assumpsit. The declaration contained a count for money had and received, and the otherinoney counts; The general issue was pleaded.

Ejectment by ibe appellant to recove? the following tracts of land: Addition to Iiagars Delight, Nnv Woik, The Resurvey on New Work, Hohrer’s Fancy, Ua gar’s Fancy, Great Hall, Found it Gut, and The Resurcey on Dawson’s Strife, all lying in the county of Washington. The general issue was pleaded.

This was an action of assumpsit5 brought in tiie general court, by the appellees against the appellant The declaration con taine(j £ counts.

- A bií! was filed on the 21st of December 1800, by Edward It. Dorsey the appellant, against the heirs and executors of Edward Dorsey, the executors of Caleb Dorsey, and SamUel tiodman. Held: possessed and used, by .Edward Dorsey, who immediately after the sale commenced cutting wood, &c. and that Godman never was in possession, or exercised any acts of ownership over it. That Godman bad recently been released as an insolvent debtor, and had Ro vjfdble property.

<p>J W obtained a ¿tuígment .a gain-t ,1 ft, nml min'd a ttrtrc facias ih<*renn against R S.ns Ms terretenanf, Who pleaded that ,1 ft was not seized nf the land of Which he is returned tenant at the time of the judgment — that the scice 'facias «unid not hi» sun* ported without producing a grant from the* proprietary for the land, or laying a founilniiou for presuming one. But that n grant fur the land, with tin? iTeetf offered bt evidence from .T ft to Tí S. and the parol evidence, that .T ft was, and had been, in pa*/ session of the land for nine years before 1m deed to li S, would he sufficient to support the toy the plaintiff</p>

<p>At Real frcim Harford County Court. It was ari action of replevin fot slaves, brought by the plaintiffs, (now appellants,) oii the 20th of March 180/. The .defendant,(now appellee.) pleaded — .1. Property in Defendant. 2. Non cepit infra tres aririos. 3. Jlctio non aecrevit infra ires amtos. 4. That on the 13th September 1803, Charles O'Brien, cine of the plaintiffs, after his marriage with Martha, the otbei plaintiff, instituted his action of replevin against the defendant,- to recover the same property mentioned in the declaration in this cause, and in which said aciioin it was, at March term 1807", adjudged, on certain demurrers- entered to the plaintiffs’ replications, that the said Charles should take nothing by his writ, &c. and that the defendant should have a return of the said property, to be detained to him irreple'dgable, for ever, &c. 5. The same suit pleaded in another form. The plaintiffs demurred to the 4th and- 5th' pleas, and there were joinders in' demurrer, &c. There was a general replication to the first plea, and issue was joined. To the 2d and 3d pleas the plaintiffs replied, that the said Martha was a' minor,, until and after the day of her marriage with the said Charles, &c. The county cou'rt gave judgment upon the demurrers to the fourth and fifth pleas, for the defendant. From which judgment the plaintiffs appealed to', this court. • ¡ ( 1 ’ - -</p>

The plaintiff below, (now appellant,) brought an action of assumpsit against the defendant, (the appellee.) The declaration contained three counts — -1.

. Cross appeals from Harford County Court. Ejectment for two tracts of land, one called Ward's Purchase, and the other Lee's Adventure, brought in the name of Samuel Bradford's Lessee, for the use of William M‘Comas. The defendants took defence for Belgvard and Security, two traets foca ted by (hem on the plots returnedin the cause. , 1.

<p>Ayí’eai. from Washington County Court. Ejectment for Chew's Farm. The defendant, (now appellant,) teak defence on warrant, and .plots were made. t ,</p> <p>1. At the trial the plaintiff read in evidence a certificate of the survey of Chew's Farm, dated the 10th of April 1734, and the patent thereon issued to Samuel Chew the 23d of June 1736, for said land, described as “all that tract or parcel of land called Chew's Farm, lying in the aforesaid county, (Prince-George's,) on that part of Fotomack river commonly called Connegocheig land, a{id beginning at the end of the fourteenth line of his Lordship’s manor, called Connegocheig Manor, and running thence,” &c. “containing 5000 acres of land more pr less, to be held ; of Cormegochcige Mftnor." And also the certificate of, resurvey of Conococheague Manor, dated 25th of October 1 1736, viz. “Maryland, set. In obedience to an order from i his Excellency Samvel Ogle, Esquire, Governor of Mary- : land, to resurvey for his Lordship, the Right Honourable i the Lo)-d Proprietary ot Maryland, his said Lordship’s j manor of land lying in Prime-George's county, called j Connegocheig Manor. These are therefore humbly to certi-j fy, that I have carefully resurveyed the above said tract or j manor of land, according tp its first intended bounds, and \ beginning at a bounded,” &c. “containing 10,594 acres j of land.” And proved by competent witnesses that Sarnie-’ d Chew, the patentee of Chew's Farm, died seized of said \ land, leaving Samuel Chew, his eldest son and heir at law, ¿ who on the death of his father entered and was seized «j thereof. That Samuel Chew, the son, had issue three» daughters, Henrietta Mftriam, married to Benjamin Gal-\ 5 ) ; j , , , ' i • loway in the year 1775, and Ann, since dead, and Eliza* both Crowley, married to Peregrine Fiizhvgh: and that Samuel Chew, the son, so being seized of Clino’s Farm, conveyed to liis daughter Eenriel/a Mariam Galloway, by deed dated the 10th of December 1782, an undivided third part of an undivided moiety of the said land. This daughter, and Benjamin Galloway jier husband, are the lessors of the plaintiff. He further read in evidence the will of Samuel Chew last mentioned, dated the g4th of November 1785, containing, amongst others, the following de^ vises: “I give and bequeath to my daughter Ann Chew, all my lands in Washington county, being one third part pf a moiety of a tract of land called Chao’s Farm, containing by patent 5000 acres, (the said third being known as number two in the plot or division which lately toojc place by agreement, the other two thirds having been before given by me by deed to my daughters Henrietta and Elizabeth, which deeds T hereby ratify and confirm,) together with all'my interest, which is one third part of the jnpiety of those parcels pf land which may have been added by resurvey or otherwise, to said trapt of land called Chew’s Farm, to her my said daughter Ann Chew, and her heirs, for ever, in fee'simple. But if my said daughter Ann Chew shall die before she arrives at the age of sixteen years, or shall not. marry, then in either of those cases I bequeath and give the real estate devised in this will to my said daughter-inn, to be equally divided betwixt my two daughters fJenrietta and Elizabeth, to them and (heir heirs, for ever, in fee simple; or if my said daughter Ann shall die withopt issue, and not dispose of the said estate by' deed, will, or otherwise, in such case I give and bequeath it as before to my two daughters, and their heirs, ip fee simple, to be equally divided betwixt them.” The plaintiff then gave in evidence the plots and locations in the cause; and that all his locations thereon were true. He thep read in evidence the deposition of John Killy, Esquire, Register of the Lapd Office for the Western Shore, taken by consent, and admitted tq be read in evidence, to prove that the original certificate of survey of Conocopheague Manor, referred to in (he certificate and patent of Chew’.s Farm, and in fbe resurvey on the said manor in Qctpbpr ?736, was nof recorded in the records of (he land office, nor to be found among the papers or in the records of that, office; and he then offered to prove, by competent witnesses, that an original survey of Conococheague Manor was made prior to, or eotemporaneous with, th,e survey of Chew's Farm, and that the pud of the J4th line of said original survey of the manor and beginning of Chew's farm, wap actually made in the country, when taken up, at-the point or place on the plots described by letter black A, according to the plaintiff’s location thereof. TJie defendant objected to the admission of any parol evidence for that purpose. But the Court, ['Buchanan, Ch. J. and Shriver, A. J.] were of opinion that tjre plaintiff might offer parol evidence to prove that a survey of Conococheague Manor was originally made prior to, or cotetpporaneousiy with, the survey and certificate of Chew's Farm. The defendant excepted.</p> <p>2. The plaintiff then offered to read in evidence the record of a commission issued from FFashingion county copri, on lire 1st of January 1784, at the instance of Samuel mi Be,met Chew, for establishing the boundaries of Chew's Farm, and the execution thereof in April 1784, and the testimony of She witnesses therein contained, and reduced to writing by the commissioners, but not signed by the witnesses. This evidence being objected to by the defendant, the court did not perpiit it to be read, it notappearing that legal notice had been given. The plaintiff then offered in evidence, that the original commission and testimony, reduced to yyriting by the commissioners, and their return, were returned with t|ic commission to the clerk’s office of Washington county, and were duly recorded. And offered also to prove, by the present cleik of the said court, that the said original commission, return thereof, and testimony reduced to writing, are not now tobe found in his office. And also offered in evidence the following entry in the margit! of the records of his office, where the said commission and proceedings were recorded, to wit: “Examined and delivered, Richard Davis:" and that such marginal entry was the usual and general practice to denote to whom the originals were delivered. And further proved, that Serpnuel Chew and fennel Chew, the persons at whose instance [he said commission issued, lived, at tko time of issuing and executing the same, on the J^asttm shore of this state, more than 100 miles from Washington county, and were not present at the execution thereof; and fbat Samvel and fennel Chew both died on the R!a stern shore, the first in 1786, and the last in 1793; that they were both old men, and that; neither of them ever was in Washington county from the day of issuing said commission, until their respective deaths. And further swore and offered a witness to prove, that Richard Davis, to whom the original commission and return, and-execution thereof, i§ entered on the record aforesaid to have been delivered, attended to the execution of said commission for said S. & B. Chew, and that he died in the year 1788. And also proved by Samvel Hughes, jufl. witness sworn for that purpose, and counsel in the cpsc, that he applied to Col. Rezin Davis, in his life-time, who was the executor of the said Richard Davis, deceased, to search among the papers of his deceased father, for said commission, and return, who informed the said Hughey that he had carefully searched among his father’s papers for the same, but it was not to be found; and th$t the said Rezin Davis was summoned for the plaintiff in th|s cause, to give evidence of that fact, but that he is since dead; and that since the death of the said Rezin Dfivis, the said Hughes applied to Mrs. JRlcanor Davis, his. exe-, cufrix, for permission to search among his papers for said commission and return, who produced tp }mn those bundles and bpgs of papers which she understood contained the papers of Richard Jpavis, deceased, where the said commission and return might be supposed to be, but after much diligent search (he same was not tpbe found. The plaintiff further offered *n evidence to the court, that more than twenty-six years have elapsed .since the said original papers were recorded, and twenty years since the death of Davis, to whom they were delivered; and offered to prove to. the court, by one of the commissioners who was sworn at A, that if the original commission and depositions were here, the matter contained in them would tend to establish the plaintiff’s locations at A, and his pretensions. And having thus shown that he was interested to produce said paper, and having as above accounted for the noup.rodgctiop of it, the plaintiff produced and swore Rlic H illiums and Raul Hoye, the two commissioners^ bametl in 9aid commission, and offered by them to prove to the jury, that the persons examined by them as witnesses were dead. And further offered to prove by them, as the declarations of persons now dead, what they declared at that time in their presence and hearing, and which was by them reduced to writing, and returned by them as their depositions in the commission, as to the end of the fourteenth line of the original survey of Conococheague. Manor. ending at the point A on the plots, and Chew's Farm, be? ginning at the same place: To this evidence the' defendant objected. And thé court were of opinion, and so decided, that the loss of the said commission, depositions and return, were not sufficiently proved to let in parol evidence of the contents of the depositions taken and returned by the commissioners, and refused to let such evidence go to the jury. The plaintiff excepted.</p> <p>3. The plaintiff then, by a competent witness, gave evidence, that a certain John Flint, an old man, and many years since dead, was accustomed to survey- and run lands in the early part of the last century. That an old roan named Fan Swearingen, was born before the year 1690, and lived on land then vacant, but since forming part of and included in Conococheague Manor, at the time said manor was originally surveyed; that said Van Swearingen died about fifteen years ago, at the age of 109 years, and from before and at the time of the. original survey of said manor, until his death, he had resided on said land and manor. And gave in evidence the declarations of said Van Swearingen, often made, that an old man of the name of John Flint made the original survey of Conococheague Manor; that the said Flint, while he Was employed in making the survey of said manor, frequented and staid at tha house of the said Van Swearingen, and made it his home. And further gave in evidence, by a competent witness, the declaration of Joseph Chapline, deceased, who died about forty years ago, and was sixty years old when he died, that he Chapline said he was employed by John Flint as a chain-carrier, and that he acted as chain-carrier on the original survey of Conococheague Manor, and that the same was made by John Flint as surveyor, and that the money he got as chain-carrier on that survey enabled him to take up the first hundred acres of laud he took up. And further read in evidence the deposition óf Archibald Orme, a'ged 73 years and upwards, taken by consent,' who proved that he' knew John Flint in 1752 and 1753, Snd was taught surveying by him, and that the said Flint was at that time an' old infirm man; that he was an old surveyor, and had been many years employed in running and surveying lands; and that it was generally known ánd understood that said Flint had been milch accustomed to run and survey lands in that part of Prince- George’s county, now called Frederick and Washington counties; that the said Flint was much employed by wealthy people in old times, and originally run and took up Carroll’s manor on Monocacy, amt Diilany’s lands in Frederick, as the deponent generally understood; that it was the general usage and practice, from 40 to 50 yéa'fs ago, for parsons having warrants, to get persons who could survey, to’ run their lands, and the' deputy surveyors of the counties would from the courses so run, make out. certificates, and send thérn to the land office, and have them examined, for patents to issue; and the plaintiff read said deposition'; further to' prove the hand-writing of said John Flint, and thereby proved that the paper annexed is the proper hand-writing of the said John Flint, which paper is as follows, viz: “Conegosheigoe Creek. Beginning at a bounded blake wall-nut standing near the mouth of the sd. creek, and the bank of the River Polawmake, viz. on ye S E side of ye sd. creek, then for the given line East 200 pr. arid continue* for 2 or 3 mile, thence from ye sd. bounded tree, down said river Fs 25 d. E lit) pr.” &c. “‘then up the sd. East: side of the side mash, North 27 cl. E for 4 mile, or more, according as want to include the improvements, then for the complement to the end of ye East line.”’ This paper was located by the' plaintiff on the plots. The' plaintiff further'offered evidence', that the lessors'of the plaintiff had for many years held and claimed Chew’s Farm up to the line from A, with the parts marked on the plots, Nos. 1 and 2. And he then produced and offered to read said paper to the jury, as the field notes or memoranda in the hand-writing of said' John Flint, who originally run Cono cochea, gue Manor as above’ stated, as evidence of its ancient running, and that the fourteenth line' of said original manor ended- at or about the letter A on-the plots, where he the plaintiff had located- the same* Tile defendant objected to the said paper being offered in evidence for the purpose aforesaid. And the court sustained the objection. The plaintiff excepted.</p> <p>4. The plaintiff then swore witnesses to prove, that a certain Fan Swearingen, about twenty years ago, died in Washington county at the age of 109 years, and that th© said Van Swearingen had lived far sixty years preceding his death on the land now contained within the Sines of Conococheague Manor, but vacant land when he first lived there; and proved by Charles Swearingen, son of said Van Swearingen, of the age of seventy-seven years, that he was born there, and has lived all his life at the same place, and he lias often heard his father say, that one John Flint, an old man, accustomed to run and survey lands, first run and surveyed Conococheague Manor and Chew':: Farm; and that while said Flint was engaged in running said manor, he frequented the house of said Van Swearingen, and made it his home; and that his deceased father said he was often.with Flint whilst he was resurveying said manor. And further, that his father, more than fifty years ago, when riding by the place A on the plot, slapping his son, the witness, on the back, and putting his hand on the locust tree at the point A, told him said tree was the beginning of Chew's Farm; that he the father was told so by the aforesaid Flint, at the time of the aforesaid running, and he has often heard his said father say so, but the witness never heard his father say that he heard this from any other person than the said Flint, and never from said Flint except at the lima aforesaid; that he has often heard his father say, and has always understood, that one line divided Chew's Farm from the manor. And further, about 40 years ago his father cut down the tree at the point C on the plot, and often told his son that the said tree was on the line of division between Chew's Farm and the manor, and the witness has heard the same from other elderly persons, but who he does not recollect; and he always understood, and has heard, that the stone now planted at C, where the tree was cut down, was planted by Mr. Sing gold’s father. That the tree, denoted by red A oa the plot, was marked by some persons who appeared to be surveying, about fifty years ago, who run near where the witness was working, but who they were, or what land they were running, the' witness does not know, hor under whai authority they acted; they said it was a line tree of my Lord’s banor. The plaintiff further offered evidence, that tlife possessions marked on the plot No. 1 and No; 2, were those of the lessors of the plaintiff, claiming Chew's Famfo inore than 25 years ago, and that about twelve years ago they were, by the order of the lessors; excluded as not lying in their lines; ánd one year afterwards were inclosed by the proprietors of Conococheague Manor as part of the samé; and had ever since been held by them as such. And ■■ that a certain Joseph ChapKne died about forty years ago, being tiled of the age of sixty years, and that said Chaplins in his life-time declared that he was a chain-carrier to old Flint] when the said Flint was running the original manor of Conococheague, and that as chain- carrier he was paid for the same. And produced and read in evidence the deposition df Ormc-, so far as the same contained legal and com - petent testimony, to prove the usage and custom in talcing and making up old surveys, and the character and habits of the said Flint. The defendant then offered in evidence the plots and explanations, and gave evidence that the locations on his part were true. He then read in evidence the original certificate of Butcher's Fancy, mads for James Butcher, the 25th' of August 1763, “by virtue of an order from his excellency Horatio Sharpe, esq. Governor of Maryland, and the honourable Edwaid Lloyd, his Lordship’s agent of the Province, to lay out for the several persons that shall from time to time apply for any quantity or quantities of land within his Lordship’s manor, lying in Frederick county, called Conococheague Manor,'* &c. containing 100 acres. And also a lease from the agent of the Proprietary to James Butcher, for the above land, dated 25th of August 1763, for 20 years. He further offered in evidence, that, shortly after the said lease was made, the said James Butcher, under and by virtue of said lease, entered on and possessed the land therein mentioned, as the same is located on the plots, and that the said land had been ever since held and possessed as a part of Conococheague Manor, and had been actually and constantly enclosed by fence, for more than 30 years, as a part of Conococheague Manor. That the part marked No. 7, with red letters and figures, near A, had been held by actual and constant enclosure, by fence and culture, for more than 40 years, as a part of Conoeockeagite Manor. T!nJ defendant then read in evidence the original certificate pf •survey of Level Plain, made the 26th of August 1763, in pursuance of an order of the governor and agent, opt ot the said manor, containing 200 acres. Also a lease to George Ross for the same land, for 21 years, and the patent for the said land to Thomas Ringgold, who had purchased the s,ame from the Proprietary agents, dated the £6th of May 1774. Ite further offered in evidence, the original lease of Addition to Level Plains, dated thg_29th of September 1765, to George lions, and the patent for the same, dated the 26th of May 1774, to Thomas Ringgold.» for 170 acres, also a part of the said manor. That the enclosure marked No. 6 on the plots, and included by the red and scratched lines described by red letters, &c. had been held, enclosed and cultivated, as a part of Conoco.zheague Manor, for more than 40 years. The plaintiff then prayed the court to direct the jury, that the certificate of the resurvey on Conocoeheague Manor, in October 1736, and the certificate of Chew's Farm in 1734» and the patent thereof in 1756, heretofore mentioned, were evidence that a legal survey of Conocoeheague Manor was made prior to, or cotemporaneous with, the original survey of Chew's Farm, and that the deposition of John Kilty was evidence that such certificate of the said manor was not or* record, nor the original papers to be found, and that the plaintiff' cannot procure a copy thereof from the said records, and that if the jury believed^ from the evidence aforesaid, that Chew's Farm did begin at A, as the plaintiff had located it, that then it was evidence, that the fourteenth line of the original manor called for, e^ded at the same place. Upon this prayer the court gave the fallowing opinion: The certificate of resurvey on Conococheagut Manor in October 1736, and the certificate of Chew's Farm in 1734, and the patent thereof in 1736, arc. evidence to the jury that a survey of Conocoeheague Mqnor was made prior to, or cotemporaneously vvith, the original survey of Chew's Farm in 1734, and the deposition of John Kilty ia evidence that no certificate of Canococheague. Manor% prior to that of October 1738, is on record in the land office; that ¡he original papers are not to be found ia that office; and that the. plaintiff' cannot procure a copy thereof from the said records. And il' proof that Chew's Farm did originally begin at A, as the plaintiff has located ■ it, it is not evidence that the 14th line of Cono cochea gue * Manor, as originally surveyed, ended' at the same place, yet on the loss of1 the certificate and courses of that survey of the manor, if the original termination of the 14th line cannot be proved or found, proof of the original survey and location of Chew’s Farm, from the place marked A on the plots, is evidence from which the jury may find ■ that point to be the beginning of Gheio’s Farm.</p> <p>‘ If any line of a tract of land is described in the granito run a certain course and distance to a fixed boundary, if that, boundary can be found, the line must be run to it, although in doing so, Ihe course and distance may be varied., Rut. if the boundary called for cannot be found, or the place where it stood ascertained, the course and distance expressed in the patent, (with such allowance for the variar tion of the compass as a jury, under the circumstances of the case, may make,) must regulate the location of the line. So if a line of one tract of land calls, to run a certain course and distance to the beginning, or any other part of another tract, that beginning, &c. must be run to, if it can be found, regardless of the course and distance; but if there; is no such land as the tract called for, or the beginning, &c. is lost, so that the call cannot be gratified, the description by course and distance roust be obeyed. But in every such case the course and distance must yield to the call if it can, be gratified, and can only be resorted to as the next best evidence of the true location of the land, when the place or thing called for cannot be found; ®nd so in this case, which indeed is not that of a line expressed to run a certain course and distance to a fixed boundary, in which the course and distance roust govern, if the boundary is lost, but it is the case of one tract of land calling to, begin at the end of a certain line of another tract, the termination of which line, if it can be found, must regulate the beginning of the defendant’s land, and no proof of any other beginning can be admitted to contradict the. record; but if it cannot be found, other evidence may be resorted to, and the beginning, being a point without course or distance to direct or control, it, on the loss of the place called for, pat'ol prop? of the place from which ii was run when originally surveyed, may be received, being the bes,t evidence of the beginning which the nature of the case will admit of, and not in contradiction of the record.</p> <p>As to the weight of evidence in this case we are not to 'be understood as giving any opinion. But where the 14th line of the manor, as originally surveyed ended, and where Chew’s Farm, as surveyed in 1T34 began, are questions to be decided by the jury upon the whole of the evidence before them. The defendant excepted.</p> <p>5. The defendant then prayed the opinion of the court to the jury, that the jury cannot find that Chew’s Farm began at the letter A, unless they find that there was a survey of the manor made antecedently to, or cotemporapeously with, Chew’s Farm, the fourteenth line of which ended at the letter A, and that the evidence aforesaid, offered by the plaintiff, was not sufficient to authorise the jury to find that there was any such survey of the Conocodieague Manor so made, the fourteenth line of which ended at A, or that the said tract called Chew’s Farm did begin there. Tills opinion the court refused to give, and referred to their opinion contained in the next preceding bill of exceptions. The defendant excepted; and the verdict and judgment being against him, he appealed to this’ court.</p>

Ejectment for a tract of land called Mundell's Survey. The defendant, (now appellee,) topis, defence on \vairant, and plots were made, 1.

The close was called Contention. The general issue was pleaded, and plots were made. , 1.

<p>T-D in 1738 exe«. cuted a deed ó'f trust to M and In which they were authorised. Amongst other things, to convey to C S a lot oF ground No 33, in payment of a debt due from T T> to C S, in case he, 6 S, consents to accept and receive said lot in satisfaction of said debt, within six Weeks iron) the date of the deed. On the 20th of Septemberi790, the chancellor, on behalf of the sia»e, eon* veyed the lot to M and H, reciting in his conveyance that the commissioners of confiscated British pro* pertysold the lot to Jwho sold and oonveiedit to i* D, and that T L> had conveyed it to AC and H, ike. •) D', L W, S C and T I), in’ U82, executed 23 bonds to the state, under the act of Way 1782, ch. 23', for property purchased by them of the stat'\ J D, with T 1) and ft if his sureties, in 1781 passed' their bond to the state, and winch was released by the state to E D, the executrix and tleiiseeof T D, by the act of 170], ch 54. Procer issued m 1788, in c;»n« i’ormuy to the act of Way 1781, ch 33, on the 23 bond's executed by J D, and others, in 1782. Ti) died in 1790, and by his will devised his whole estate, real and peysoual,to E D, whom he also appointed his executrix. T D died insolvent, without leaving sufficient propet ty to pay his debs due to the state; and J D, L W and S C, were insolvent, and were r* gularly discharged* under the in* solvent law after the date of the bonds, and before the death of T D. In IÍ90 the legislature, by a re® solution directed the treasurer to cancel all bonds ^iven to the state by I D, E N and T D, ana by J D, L W, S C and T'D. By tbe act of 1791, ch 54, the legislature declared tfc.it their intention, by the above resolution, was to benefit ED, and her «hiidren, and not the creditor* of T D, or any other person, and they repealed the resolution, and directed the treasurer’to receive the bonds and to deliver them to E D, to her use, after having acknowledged and endorsed on each bond satisfaction received t>v the state from her for the sum 4udon each bond; and that, she should stand, in law and equity,in the place of the state. The act ivas complied with by the treasurer. Under the will of r D, and the as* siguroéat of the bonds, E D entered into possession of lot No 38. C S, in the deed of trust mentioned} 'kronii'ht suit against T I) forth* debt due to hio\, and recovered judgment in 1783. lie sued out ^ scire fack'zs thereon against »i I), as executrix ot T D. and obuúnpd a jiaf in 179.4 C S in 1794 filed a bill in chancery against Mandil, to compel them to execute the V’uu, by conveying to him the lot No 3 \ and a decree passed for that purpose — JfcZ'h t]jat fíje record and decree could not he read in, evidence in an action oí ejectment brought bj J d’s lessee against E l>, for the recovery of the said lot* field ttUa* that the decree oí ti«o chancellor, top,'ether v-iih the deed fVopi M and íí to .1 S, the lessor of She plaintiff, and the C b, wan not sufficient evidence of a due execution, of the trus^t in the deed from T 1) to M and H</p> <p>Intuís case the lessor of the plaintiff died pending the suit, and (tevisfíes,, ejttinsdng; undivided paria of the iand in dispute^ too made pii'ife** 1</p>

This was an action of assumpsit, brought on the Sd of August 1796, for money laid out and expended. The defendant (now plaintkF in error,) pleaded non assmapsit, and non assumpsit in fra Ires annas. 1.

<p>Appeal from Harford County Court. This Was a writ of scire facias sued out on a judgment rendered in that court in August 179?, in favour of the appellee’s intestate against Preston. The defendant, (now appellant,) pleaded, two pleas — l. That Preston was not seized of the lands of which he the defendant was returned tenant, &c. 2* That the plaintiff ought not to have execution of the lands, &c. because before suing out the scire, facias a ca. sa. issued against Preston, who was arrested and brought into court, and committed to the custody of Robert Jlmos, junior, the then sheriff. That Preston escaped from the custody of the said sheriff. That the said Gwinn brought suits on the said .Amos’s bond as sheriff, for the said escape. That in March 1800, a judgment Was rendered oh the said bond against Amos, and his securities, for damages and costs sustained by reason of the said escape, &c. Issue was joined to the first plea, and a general demurrer, and joinder in dermlrrer, to the second. The county court gave judgment on the demurrer for the plaimiff.</p> <p>In the trial of the issue in fact, the plaintiff read in evidence the will of James Preston, dated the 17th of September 17G6, devising to his son. Jumes Preston’s son Jhnjamin, a tract of land called Plumb Point, and part of Hog Neck, and Robinson's Chance, &c. to him, his heirs and assigns, for ever. Also a deed from Benjamin Preston to Josiith Lee, dated the 17th of May 1799, for the lands called part of Hog Neck, part of Plumb Point, and part of Mate's Addition. Also a deed from Josiah LfC in James Lytle, dated the 19th June 1799, for the said lands. Also a deed from James Lytle to Joseph Ford, dated t'ue 18fh August 1801, for the said lands. And also gave evidence, that the lands by the will aforesaid devised to Benjamin Preston, were by him sold to said T.ee, and that the same lands were purchased by the said Ford from the said Lytle. That the said lands were in possession of James Preston, the devisor, a considerable time before his death, and are the same of which the defendant was returned terretenantj and that Benjamin Preston, the devisee, was the person against whom the original judgment was obtained. The defendant then objected to this proof as insufficient: in law to support the issue on the part of the plaintiff, and prayed the court so to direct the jury. But the Court, [Nicholson, Ch. .T.j was of opinion, and so directed the jury, that the proof was evidence of •the seisin of Benjamin Preston, unless the defendant showed that he held the lands in question under some other title; that after the, plaintiff had shown that the defendant derived his title from Preston, the court would not compel the plaintiff to show Preston's title, which the defendant was estopped from questioning, unless he the defendant could show that he held by some other title. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.</p>

This was an option of trespass vi et arrnis, against the appellant’s intestate, for seizing and taking certain negro slaves, the property of the plaintiff, (now appellee,) and converting them, &c. Plea, the general issue. 1.

The defendant, (now defendant in error,) took defence on warrant for a tract called Pleasant Valley. Plots were made, and issue joined, v , ’ 1. The defendant at the trial in the general court at October term 1805, offered to read ip evidence a paper, purporting to be- t}ie deposition of Col. Thomas Cresap, taken on the 39th of April 1783, by and hefore a certain Evan Gwynn, the deputy of Henry Shryock, then, and before and afterwards, sheriff of Washington county.

This was an action of Trover, brought in the late General Court to Qctober term 1796, for the conversion of three boxe3, con»' taming 1S26 pieces of gold coin, commonly called half Johannes, of the value of 64000 current money. The damages laid in the declaration were 65000 like money. The defendant, (now appellant,) at May term 1797, pleaded not guilty, upon which issue was joined.

This was an action of ejectment, brought on thé 21st of September Í808, fidr part of a tract of land called Salisbury Plains, described by metes and bounds,-on a joint demise for the whole of such part by J. E. Howard and J. Pennitigton, and on separate' demises by teach of them; for aia undivided moiety of said .part. The defendant, (now appellant,) took defence on warrant, and plots were made.

>\ ii, Sxa '-(ilfioncrr ilomdy (¡¡Vurt This was a peTvY» !‘t íVí'.'-íien,. the isiai Ye peitif>i¿er, úv.w cg-l,siy';r.->, ) v V. ií'.KüJ», VÍiO gH'in'C-d that ¿{¡fol Mar Oil Yro Enrothc’ - té' ¡íir defoiiíSatiíc (hot- appe'kmí,) witbe a Seiko: t«, ¡ni’.' Y.nt Tig J/aty/n cont-iy hi «bk sirte, where Im ¡/«YicsC mid sent it i;y the petitioner, whe was Yu- W.nr; o.: fY-ngY whs're he ns if bon» stEl! raised, ansi by vitóle ?a who deíYe-uid to (he w tine.so to lY- ciíy cf…

Debt qb thn following bond: “Know all men by these presents, that we, William Kerr, William Jones, Charles Griffin, Richard Ridgely.

<p>The coutfc of Clmnc^ry will grant relwfngaimt a judgment rendered by confesalon, in an actio» «átjaw,upon h pnv mimo y note given' for a usurious eon* ¿idoration, on payment of the real sum dm», witfilugal interest</p>

This was an action of assumpsit on a promissory note. The defendant (now defendant in error,) pleaded'non assumpsit, and issue was joined. At the trial the plaintiff, (now plaintiff in error,) produced in evidence the following promissory note, to wit: etBaltimore, May 30th, 1810.