Volume 4 — Gill's Maryland Reports

The bill in this cause, was filed on the 17th January 1846, by John Doub, of Washington county ; and alleged, that Abraham Barnes being indebted to divers persons, and many judgments having been recovered in the county court of said county against him, as principal debtor, and Melchoir B. Mason and John Thompson Mason, as his sureties; the said A. B. and Margaret S. C., his wife, and the said AL B. M. and J. T. M., by deed, dated on or about the lltli October 1839, conveyed…

On the 30th July 1845,. the appellee filed a bill on the equity side of Baltimore county court, alleging, that a certain Anne Watson being largely indebted to various persons, and being altogether and hopelessly insolvent, did, on or about the 11th July 1843, execute unto her son, a certain Hugh McNeal,. for an ostensible consideration of $404, a deed of a certain house or store, and lot,, on Pratt street, &c.; that after the said deed had been put upon record, the said Anne…

This was a scire facias, sued out on the 31st August 1843, by the appellee against the appellant, to revive a judgment at law, and show cause why an execution should not be awarded, &c. The appellant, the defendant, pleaded, that on the 11th September 1838, the plaintiff sued forth upon the original judgment a writ of capias ad satisfaciendum, upon which the defendant, before the return, was arrested and detained in execution, and that the said writ was so returned at the…

The bill in this cause was filed on the 31st July 1845, by Hugh Ely, Joseph J. Speed, John Johnson and J. N. Steele, and alleged, that they are seized in their demesne, as of fee, as tenants in common of a certain tract of land lying and being partly in Howard district, and partly in Baltimore county, called “Eliy's Chance, which was patented to the said Hugh Ely, by patent bearing date the 6th day of July 1830 ; that David Lemmon, Ephraim Hamilton, and Elias Hamilton,…

The bill in this case was filed on the equity side of Charles county court; on the 13tb June 1844; and subsequently removed from that court… Held: deemed, and taken, in trust and confidence; in the first place, to raise by sale of tire same, or any part thereof, in such manner as the said R. S. R., and the securities above mentioned, shall think proper, for so much money as will be sufficient therefor; and the same money, when raised, to apply to the puipose of paying off,…

The bill in this cause was filed on the 8th May 1843, by Joseph Dilley and George W. Bedford, and alleged, that Frederick Shipley obtained two judgments, against George H. Krebs Sf Co., which said G. H. K. is since dead, and insolvent; and Charles W. Krebs, the only other partner in said firm of G. FI. K. if Co., is also now insolvent.

On the 5th January 1844, John Barnes made his last will, and devised to his grandson, Barnes Compton, in fee, all that part of his estate called, &c., and all the residue of his estate, (except two manumitted negroes, and $500 per annum to his nephew, TV. C. Barnes, for ten years, for life,) with remainder over to his nephews, and certain other of his grandchildren, absolutely. This will was admitted to probate a few days after its execution.

<p>By the act of 1841, chap. 168, the Annapolis & Elkridge Railroad Co. were authorised to issue bonds, to an amount not exceeding, &c., in the names of the creditors of that company, as payees. A special fund was designated in the act for the payment of interest, the principal being irredeemable for thirty years. Another section of the act referred the claims of P. to the arbitrament of L., and any amount so found due him, should be paid in like manner as the claims of other creditors, “ and not otherwise.” Held : that the creditors for whom provision is made, as aforesaid, were to be creditors of the company at that time ; and the fund thereby created, is for the payment of those claims, and none others. All the, then, creditors have an interest in it; and of which they eouldnot be deprived by the board of directors of the company, without their consent.</p> <p>To entitle P. to an interest in this fund, he must submit his claim to the award of L., which is conclusive, and so of his assigns. The proof of such submission is upon him, and the directors of the company could not authorise their president to issue a bond to the assignee of P., payable out of the fund created by that act, unless P’s claim had been first ascertained by L.</p> <p>And where the legislature, by a subsequent act, (1843, chap. 188,) submitted the claim of P. to other arbitrators, to proceed de novo, disregarding the act of 1841, and directed the company to issue the bonds mentioned in the first act, to such additional amount as would be sufficient to pay the second award. It was further held, that the creditors of the company, or such of them as had agreed to the law of 1841, and their claims ascertained by the company, have an interest in the fund, and without their consent, no part of it could be applied to the payment of any debt for which the act of 1841 did not provide.</p> <p>Until creditors to whom bonds were issued under the act of 1841, are satisfied, the fund provided by that act belongs to them, and cannot be taken from them.</p> <p>Under the charter of the Annapolis and Elkridge Railroad Company, (1836, chap. 298,) many of the provisions of which are borrowed from that of the Baltimore fy Ohio Railroad Company, the directors thereof cannot, by resolution or by-law, deny either to the president of the company or the directors appointed by the State, the same right to vote upon the various questions to be decided by the president and directors, as those who are elected by the stockholders possess.</p> <p>The president of that company, therefore, cannot by resolution have his right to vote restrained to the mere right of giving a casting vote in case of a tie.</p>

On the 14th March 1843, S. P. M. Hanson, P. D. G. Hedgeman, next friend of Sam.uel Adams, a minor, William H. Brawner, next friend of his minor children, &c., filed their bill, alleging, that Samuel Hanson, Sen., died sometime in the year 1817, having first executed his last will and testament, by which the said Sam.uel Hanson, Sen., devised to his two daughters, Margaret Beall and Charity Hanson, for and during their natural lives, a certain tract or parcel of land lying in…

On the 15th March 1845, the appellees filed their petition before the said court, alleging, that on the 8th December 1841, John McKim, Jr., made his last will; that he appointed his sons, D. T. and John S'., and his son-in-law, W. H. M., executors thereof, and therein declared, that no one of his executors should be entitled to any commissions for settling his estate; that the testator died in the month of January 1842; that his son, John S., renounced his appointment, and…

The bill was filed on the 7th February 1835, by the appellant against the' appellees, and amended on the 14th June 1S38. Held: the Clean Drinking estate, and the personal property thereon, belonged to said Smith and Hawkins, and that he, Jones, was merely agent for them, and that Smith took possession thereof at his death, &c. Prayer, that the amount of the bonds aforesaid, may be decreed to be a lien on the real and personal estate sold by the said Clement…

The bill in, this cause, was filed by the appellee against the appellant, on the 28th October 1843, for a divorce a mensa et thoro, and alimony.

Mary’s county court. This was an action of assumpsit, commenced on the 1st July 1842, by the appellant against the appellee, who pleaded the general issue. At the trial of this case, the plaintiff to support the issue on his part joined, read to the jury the following letter from Philip Turner to Israel Griffith, having first proved the signature of Philip Turner to said letter. “Chaptico, 12th Oct. 1840.

This was an action of trespass q. c.f., brought on the 16th February 1844, by the appellant against the appellee, for a forcible entry into, and expulsion from a tract, of land called Boar mans Content. The defendant, H. D. H., pleaded, 1st., non cut. 2nd. That the locus in quo, &c., is, and at the time was, the proper soil and freehold of the said H. D. II., wherefore he entered, as it was lawful for him to do. The defendant, G. K., pleaded non cul.

On the 22nd March 1841, the appellants sued out an attachment upon a judgment of that court, rendered in their favor, against Carey, Wethered, and O’Donnell. The attachment was laid in the hands of the garnishees, who appeared and pleaded nulla bona, on which plea issue was joined. Exception.

<p>By the terms of the 22nd sec. of the act of 1820, chap. 191, the bond giren for the purchase money of land sold under that act, is required to be with condition, to pay the money over to the representatives of the deceased, “in such proportions as each may be entitled to, agreeably to the order of the court” hy which the sale was adjudged. Until the court has passed an order ascertaining the proportion to which a representative is entitled, he cannot maintain an action on such bond.</p> <p>The case of Mdgely vs. Iglehart, 6 Gill fy Johns., 49, as to the construction of the act of 1820, chap. 191, sec. 22, explained.</p> <p>Where the issue upon general demurrer definitively settles the law of the case against the plaintiff, the issues in fact are not to be tried.</p>

This was an action of assumpsit, brought on the 12th March 1839, by the appellee, as administratrix of all and singular, the goods, &c., which were of 'Thomas A. Davis, late, &c., against the appellant. The writ was returnable to the 3rd Monday of March 1839, and returned cepi. At that term the defendant appeared, and laid the usual rule on the plaintiff to declare.

This was an action of trover, brought by the appellants against the appellee, on the 28th March 1844, for a negro woman called Mary, a slave for life. The defendants pleaded non cul, and limitations. The verdict was for the defendant.

This was an action of debt, commenced by the appellants on the 28th July 1840, upon the bond of Thomas Joseph Speake, Edward Pye, Thomas Burgess, and William S. Jones, to Thomas Janney and John D. Brown, dated 18th August 1819, with condition as follows: “Whereas the above bound Thomas Joseph Speake and Edward Pye have obtained an injunction to stay proceedings at law, and judgment rendered against them in Charles county court, by the above named Thomas Janney and John D.…

Appeals from Prince George’s county court. These were actions of assumpsit, brought by the appellees against the appellants, argued together in this court. In the first cause, No. 10, the claim arose on the following note and protest: “$309.30. Washington City, 16th March 1842. Nine months after date, we promise to pay P. Crowley, or order, three hundred and nine dollars and thirty cents, for value received.

This was an action of Assumpsit brought on the 14th November 1S43, by the appellant against the appellee. With the declaration the plaintiff filed an account of goods sold and delivered. Issues were joined on the pleas of non assumpsit, and limitations.

This was an action of replevin for five thousand pounds of tobacco, brought on the 23rd December 1842, by the appellant against the appellee, who pleaded non cepit, and property in a stranger.

This was an action of assumpsit, commenced on the 13th March 1843, by the appellee against the appellants. The claim was for medical services and medicines, rendered to David Crawford by Hodges and Brooke, from 1834 to 1839, amounting to $619.69. The appellants pleaded non assumpsit, and limitations. The plaintiff claimed, in his declaration, as the assignee of Hodges and Brooke, under the act of 1829, ch. 51.

This was an action of debt, commenced on the 22nd March 1844, by the appellees against the appellant. The plaintiffs declared upon the bond of the appellant, dated 20th February 1841, payable to him twelve months after date, for $200. The defendant pleaded non est factum, on which plea issue was joined.

On the 25th of March, 1844, Henry Ankeney, filed his bill against William Craig and Jacob Angle, Jr., alleging, that about the 25th January 1842, Jacob H. Barnett called on him, saying, he was indebted to a certain William Craig,. in the sum of $263, and desired your orator to become his surety in a single bill, to said Craig, for that amount; that he did become surety for said B., on said note, payable to C. That when said note was taken by said Barnett to said Craig, he,…

This was an action of replevin, commenced on the 10th March 1843, by the appellee against the appellant, for slaves Bazil and Frank. The defendant below pleaded non cepit; property in himself, and property in one-, and not in the plaintiff; on these pleas issues were joined, and the jury found a verdict for the plaintiff upon the first and second issues.

On the 6th August 1842, David Hupe sued out an attachment, by way of execution, on a judgment rendered at March term 1839, in his favor, against Abraham Barnes.

The bill in' this cause was filed on the 12th May 1842, by Caesar Peter's, Thomas Clemens, Alexander Clemens', Henry Jones, Isaac Clemens, Nathan Mingó', Margaret Pierce, and Sophia Clemens, colored persons, residing in Washington county, and alleged, that they were, during the lifetime of Mary Van Lear, of, &c., and at the time of her death the servants and slaves of the said Mrs. V. L. That in or about the year 1828, the owner'of your orators departed this life, leaving…

On the 16th November 1842, the appellant sued out a scire facias against the appellees, reciting a judgment obtained by a certain Alexander Manro, against James Prather and Ellen Prather, at November term 1822, for the sum of, &c.; and that a writ of scire facias was also sued out of W. county court, returnable to March term 1832, which was made known to James Prather, and flat ordered at November term 1832, for, &c.; that Ellen Prather is since deceased; that said judgments…

<p>Where an appeal comes up on a case stated, it must be decided by the facts agreed on. Legal presumptions may be made, and necessary conclusions drawn, but inferences from facts, which may, or may not, be true, cannot be made by the court.</p> <p>A party in possession of personal property, exercising acts of ownership over it, must be treated as the owner until the contrary appears.</p> <p>A quantity of pig iron on the bank of a canal in Frederick county, under the care of one agent of the owner, was sold by another of his agents in Baltimore, who gave his receipt to the purchaser for the purchase money. The purchaser wrote to the agent in Frederick, to ship the iron to his agent at another place. Held, that these facts constituted a constructive delivery of the iron to the purchaser.</p> <p>In relation to a ponderous article of merchandise, incapable in the ordinary course of business of actual delivery, as pig iron, all tire law requires to change the possession after a sale, is constructive delivery.</p> <p>Where a party is in possession of an article intended to bo affected by an attachment, he should be returned by the sheriff, as the garnishee.</p> <p>Where there had been a valid sale and delivery of personal property, the act of 1834, ch. 79, which required the transfer of a non-resident to be re. corded, does not apply.</p>

This was an action of debt, brought on the 4th November 1842, on the bond of the appellants to the obligee, dated 11th June 1839, The condition of the bond was such, “that if the above bound G. W. P., deputy collector of the tax of Washington county, shall well and faithfulty execute his office, and the several duties required of him by law, and shall well and truly account for, and pay to the said C. S., the several sums of money, which he shall receive or may be answerable…

The bill in this cause was filed on the 29th January 1S44, by the' appellants against the appellees, for the sale of the real property of which Samuel Spickler died seized. The several defendants answered the bill, and proof was taken; on the 6th February 1844, the land was decreed to be sold; the sale was made, reported and ratified.

On the 18th July 1843, the appellant filed his bill praying subpoena, against Elizabeth Lawrence, Alexander Neill and Andrew Kershner, and order of publication against Jacob Bar-rick and George W. Himes, which was duly published.

On the 21st May 1846, the appellant filed his petition, alleging, that he was illegally detained in jail, praying that the cause of his detention might be examined into, and he discharged from prison. On the same day, the court, (Buchanan, A. J.,) ordered a writ of Habeas Corpus to issue.

This was an action of assumpsit, commenced on the 12th November 1844, by the appellee against the appellants and 'David Shovman. The latter was not taken. The other defendants appeared by attorney, at November term 1846. The plaintiff declared upon the following note : “'$661.68. Washington County, Oct. 1st, 1839.

This was an action of Debt, commenced on the 30th October 1843, on the following single bill, of which oyer had been prayed. “ glOOO. — On or before the first day of January 1841, we jointly and severally, promise and oblige ourselves, our heirs, executors or administrators, to pay or cause to be paid to Over-ton Williams, his heirs or assigns, the just and full sum of one thousand dollars, current money of Maryland, with legal interest from date, being for value received;…

This was an action of Debt, commenced on the 1st June 1841, by the appellant against tire appellee, for the sum of $1054.57.

This was an action of assumpsit, commenced on the 10th October 1843, by Ezra Houck against Robert Annan.

On the 7th March 1842, the appellee filed his bill against the appellant, in relation to a sale of land made by him, in 1832, to the appellant, of which the latter took possession.

This was an action of assumpsit, brought to May term 1842, of said county court, by the appellees against W. E. Mayhew Co., the firm consisting of William E. Mayhew, William D. Miller, Alexander Fisher, and Gorham Brooks. Errors of pleading and misjoinders of parties were mutually waived. The defendants pleaded non assumpsit, and the verdict was for the plaintiffs. 1st Exception.

On the 26th February 1844, Nicholas Owens, James T. Henderson, and Nicholas R. Warfield, in behalf of themselves, and all other creditors of Eli G. Warfield, deceased, filed their bill, setting forth their respective claims against him at the time of his death, intestate, in the year 1841; that administration of his personal estate was granted to his widow, Ellen B. War-field, and Reuben Warfield, who had possessed themselves of the said E. G. W’s estate, and admitted the…

The bill in this case was filed on the 29th September 1841, by the appellant, and stated, that on 1st September 1840, John Bevans and Thomas Beers, Peter Ritner and William Sullivan, entered into a verbal agreement, to become co-partners in the butchering business, in equal shares as to profit and loss; that it was agreed, that J. B. should be the active partner, should erect a slaughter house, buy and butcher the cattle, sell the meat, and collect the proceeds of all sales,…

The Reverend James Dolan and Peter Foy, on the 31st August 1846, filed their bill, alleging, that on the 23rd June 1783, William Fell conveyed in fee to Thomas Russell,… Held: that it is competent for the mayor and city council of Baltimore, to pass an ordinance like the one previously quoted. This being so, it is clear, the grave yard sought to be held liable for the paving tax, would be so liable, unless there be something in the legislation of the State, to exempt it.

- This was an action upon the case, for the negligent driving and upsetting of a stage coach, by which the plaintiff was injured in his person and mind, brought by the appellee against the appellant, as owner of the coach, on the 13th August 1841. The defendant pleaded non cul, on which issue was joined. The verdict was against him. 1st Exception.

This was an action of assumpsit, brought to May term 1844, by the appellee against the appellant; to recover a sum paid, laid out and expended by him, to and for the defendant,- cfcc. The defendants pleaded non assumpsit, and the verdict was for the plaintiff.

On the 9th October 1845, the appellants, as relators, filed their petition for a Mandamus against the appellees, alleging: that a… Held: without the form of a due nomination, or of a sufficient interval between nomination and election, as enjoined by the charter of said congregation; that under the pretence of such election, the' following persons were declared elected to the places of said wronged officers, and were sought to be foisted into said offices, to wit:…

On the 31st October 1844, the appellees filed their bill, alleging, that Ellcanah Franklin, the father of E. F. and J. H..; and the husband of Sarah, died in the year 1840, leaving the appellees, his widow and children, alive, and also Mary E. Franklin, his daughter.

On the 8th July 1846, Richard Oreen relying upon the following agreement, to wit: “Baltimore County, 10th December 1838. “ I hereby grant to Richard Oreen, the privilege of digging and moving the ore on that part of my place joining Wilderson and Price's, at twenty-five cents per ton for the privilege of ground; leave also to build a house on said land, the workmanship to cost $100, the materials to be got on my land, at said Green's expense. “Charlotte C. D. Owings. “Jas.

This was an action of assumpsit, brought to September term 1844, by consent of parties, by the appellant against the appellee. The cause was heard upon the general issue. The jury found a verdict for the plaintiff, under the instructions of the county court, for $;208.26.

This was an appeal from the equity side of Baltimore county court.

Writ op Error to Baltimore county court. At November term 1845, the grand jury of said county found •a true bill of indictment against the defendant in error, charging him in one count with a rape, and in another count with an assault, with intent to commit a rape.

This was an attachment on warrant, commenced on the 31st January 1843, by the appellant, to recover the amount of several promissory notes of Philip MvCloskey. The warrant was laid in the hands of the appellees, who pleaded non assumpsit, by Philip, and nulla bona, as to themselves. Interrogatories and answers were filed, but they do not appear to have been used before the jury. The verdict was for the appellee.

<p>Appeal from the Court of Chancery.</p> <p>On the 10th January 1842, the appellant filed his bill against the appellees, stating, that the estate of William Craft was divided by commission, and a certain portion thereof, to wit, <&c., assigned and allotted to Margaret Ann Craft, his daughter; that she married Henry Wilcox, and had issue, Margaret Ann Wilcox; that Henry and wife, by deed of 1.0th November 1836, assigned her interest in fee to Edwin E. Medford, who, by deed of 16th November of same year, reconveyed the property to Wilcox and wife.</p> <p>-“To have and to hold every part of the said, hereby bargained and sold, lands, unto the said II. W. and wife, and their heirs and assigns, forever, and the survivor of them, and to and for no other use,” &c.</p> <p>The bill then alleged, that under the said deed, II. W. and wife did not take as joint, tenants, but that they took the property in equal undivided rights, and upon the death of either, the other surviving, an undivided half pari of the fee simple, descended to his or her heirs at law; who then held as tenants in common with the surviving party; that the wife of H. W. died, leaving an only daughter, M. A. W.} who also died a minor and intestate, without children or descendants. The bill then proceeded to show how the complainant, Hugh Craft, claimed title as heir to the daughter, M. A. W.; and he, with with her other heirs, were made parties. The vendees of II. W. were also made parties. The bill alleged the interest of the various parties in the whole estate; that it was incapable of division, so as to be of advantage to the parties interested; nor could the same be sold, by reason of the minority of some of the defendants.</p> <p>Prayer for subpoena, publication, &c. Decree for a sale or division, and for further relief.</p> <p>Various title papers were exhibited with the bill, and as parcel thereof.</p> <p>The answers of the infant defendants, taken under commission, admitted the bill.</p> <p>The adult defendants demurred to the bill, as containing no cause for relief.</p> <p>On the 6th November 1845, the chancellor, (Bland,) dismissed the bill with costs, upon the ground, that the deed of ♦he 1.6th November 1836, conveyed an estate in fee simple to H. W. and wife, which, upon her death, passed by survivor-ship to him, leaving nothing to descend to her heirs.</p> <p>From this decree the complainant appealed to this court.</p> <p>The act of 1822, ch. 162, declares, that "no deed, devise, or other instrument of writing, which may hereafter be executed, shall be construed to create an estate in joint tenancy, unless in such deed, devise, or other instrument of writing, it is expressly provided) that the property conveyed by such deed, devise, &c., is to be held in joint tenancy.”</p>