Volume 4 — Gill & Johnson's Maryland Reports

A bill was filed by the appellees, against the appellants, and the Potomac Company, on the 23d of June, 1828, which stated—That by an act of the legislature of Maryland, passed at December session, 1820, entitled, “An act to incorporate The Baltimore and Ohio Rail Road Company, it was enacted, that as soon as ten thousand shares of the capital stock of said company should be subscribed, the subscribers thereof should be incorporated into a company by the name of The…

<p>Where it was the general usage and custom during the time of a certain sheriff, for his deputies to deliver to him all process which came to their hands, when he endorsed such returns thereon, as he, by the said deputies might be directed; this was held to be competent evidence, in an aetion brought by the sheriff upon the official bond of one of his deputies— the inquiry being, whether a return so made was a false return or not. And although the plaintiff was not entitled to recover, unless the jury believed, that such return was made, either by the defendant, or his directions; yet it was held, that the custom was per se, under the circumstances, prima facie proof, as between the sheriff and his deputy, of such a return having been made.</p> <p>.It was competent for the sheriff and his deputies, to agree upon such a practice, as a law for the regulation of their own official conduct; but such usage or agreement would not be binding upon the interests of third persons.</p> <p>A witness cannot decline answering a question, merely because it will subject him to a civil liability.</p> <p>The refusal of the County Court, to compel an unwilling witness to answer a question, though erroneous, will not affect the judgment of the appellate court, where the answer to the question would be irrelveant or inadmissible.</p>

<p>The act of 1818, eh. 217, declares, that moneys received for the hire or use of negroes, by an executor or administrator, during the time he is entitled to the possession, shall be assets belonging to the estate, and shall be accounted for by him. And such was the law before the passage of that act.</p> <p>The act of 1798, having made negroes assets, the hire after the death of the owner became assets also. It was an incident springing out of assets, and partook of their nature. It is like the interest arising after the death of the obligee, in a bond given to him in his life time.</p> <p>In an action upon an an administration bond, where the breach assigned was an inventory returned by the administrator, and after sundry disbursements made, there remained a balance of said inventory in the hands of the administrator to be distributed, of which the plaintiff claimed one-fourth as distributee, and the issue was made up upon the truth of such breach, the plaintiff cannot insist upon charging the defendant with any thing not in the inventory, and of course, the hire of negroes, which accrued after the date of the inventory, could not be recovered in such a state of the pleadings.</p> <p>Where a prayer necessarily raises a point in the County Court, it will be reviewed in this court, under the act of 1825, though under the state of the pleadings, the point ought not to have arisen at all.</p>

Appeai, from the Court of Chancery. A portion of the personal estate of a certain Benjamin Harwood, who died sometime in January, or February, 1826, being in the Court of Chancery for distribution; a petition was filed by the appellant on the 24th July, 1830, as one of the representatives of the said Benjamin, setting forth, that her husband, Lewis Duvall, who departed this life in November, 1829, in his life-time, executed certain assignments of her share of said personal…

<p>The personal estate of a deceased debtor is the natural fund for the payment of his debts ; and must, in ordinary cases, be first resorted to by the creditor for the satisfaction of his claim.</p> <p>If personal assets come to the hands of the executor or administrator, sufficient to pay all the debts of the deceased, the creditor must look to that fund for the payment of his debts ; and if those assets are wasted, his remedy is on the official bond of the executor cr administrator.</p> <p>The real estate of the debtor is protected, unless the personal assets are insufficient ; and to authorise the chancellor to pass a deeree, to sell the real estate, to pay the debts of the deceased, the bill must allege an insufficiency of personal assets for that purpose, which allegation must be admitted by the answers, or proved.</p> <p>Where a will directed real estate to be sold, for the support and education of the testator’s children, and a part of the personal estate which ought to have been applied in payment of debts, had been expended to educate and maintain the children, creditors might call upon a court of cquiiy to sell the real estate, so directed to be sold, for the payment of the claims. (i¡r.) A personal, collateral security, given by an administrator, for a debt due by a deceased intestate, cannot operate to place the creditor in a better situation against the real estate of the deceased, than he would be without such security.</p>

<p>Appeal from Washington County Court. This was an action of Debt, instituted by the appellant against the appellee, on the 26th of April, 1827, on the following single bill. “ Four years after date, we, or either of us promise to pay or cause to be paid unto Martin Geiser, or order, the just and full sum of one hundred dollars current money, for value, received, as witness our hands and seals, the 26th day of May, 1817. Samuel Kershner, (Seal.) Michael Householder, (Seal.)” May 2, 1818, I assign all my right in this note to John Knaval, for value received. Marlin Geiser, (Seal.)</p> <p>The defendant pleaded payment to the assignee, and accord and satisfaction; to which, by agreement of counsel in the Court of Appeals, replications were considered as filed, and the issues as having been regularly made up, before the finding of the jury.</p> <p>At the trial of the cause, the plain tiff having read to the jury the above single bill, with the assignment upon it, the defendant proved by Jacob Kershner, a competent witness, that the defendant, on the 3d of April, 1824, gave to Benjamin Ferrel, the agent of the plaintiff, the following order—“April 3d, 1824. Mr. Jeremiah Mason, Sir— Please to pay to Benjamin Ferrel, the sum of ninety dollars and seventy-six cents, against the first of May next, by so doing you will oblige me, Samuel Kershner towards the payment of the said single bill, but the witness did not know on what terms sard order was received.</p> <p>The plaintiff then proved by Ferrel, that he was the agent of the plaintiff, and that he received the said order, to be in payment of the said single bill, provided Mason accepted it, and that if it was not accepted, it waste be returned to Jacob Kershner, the defendant’s brother, who lived in the neighborhood. That before it became due, he called on Mason, who refused to accept it, but said there was an unsettled account between him and the defendant, on an agreement for the purchase of timber, and he had not received the whole of it, but that whatever .was due to defendant, he would pay to Knaval. That the witness some time afterwards, perhaps two or three months, called on Jacob Kershner, and told him,'that Mason had refused to accept the order, and offered to return it to him, but he refused to receive it. The defendant then proved by Mason, that when Ferrel called on him with the order, which was the last of July, he did refuse to accept it, and told him, he thought the order was for more than was due the defendant. That there was something due him; that the account between himself and the defendant was unsettled. That he had not received all the timber he was to get from the defendant, and that he apprehended there would be a dispute about it; but that whatever should be due on settlement between him and the defendant, he would pay the plaintiff. That he never has had a final settlement with the defendant, and never did make any payment to the plaintiff—and the witness says he thinks there was a balance of about $90 due from him to the defendant, at the time the order was presented.</p> <p>The defendant then prayed the court to instruct the jury, that if they find from the evidence, that the defendant had not due notice of the non-acceptance, and non-payment of the said order, the plaintiff is not entitled to recover; which instruction the court (Sh river, and Thomas Buchanan, A. J.) gave, and further instructed the jury, that the notice after the expiration of two or three months was not due and reasonable notice.</p> <p>The plaintiff excepted, and the verdict and judgment being against him, he appealed to this court.</p>

Assumpsit by the appellant William Smith, as surviving partner of James 8. Lane, and John Smith, trading under the firm of James S. Lane and Smiths, against the appellees, trading under the firm of James Stone, Jr. Sf Co., on a promissory note, the execution of which, by the defendants was admitted, dated 20th December, 1831, at six months, for $¡193 75. Issue was joined upon the plea of non assumpsit. 1.

Ejectment for sundry tracts of land in Montgomery County, on the separate demises of Sarah Peter, of one undivided third part; James B. Beverly, and Jane his wife, of one undivided seventh part; Elizabeth Peter, by Sarah Peter, her mother, guardian, and next friend, of one undivided seventh part; William C. Peter, by Sarah Peter his mother, guardian, and next friend, of five undivided equal twenty-one parts; the whole in twenty-one equal parts, to be divided, and on similar…

A petition was filed by the appellee, on the 5th of October, 1829, praying the Orphans Court of Baltimore county to revoke the appellant’s appointment, as guardian to the infant children of one Michael March, deceased.

<p>It is a grave question, whether by the Act of 1763, ch. 23, the legislature did not intend to interdict, altogether, the use of special demurrers; but the practice of sustaining them by every judicial tribunal in the State has engrafted upon that act, an interpretation, which nothing but another act of Assembly can change.</p> <p>When matter of record is pleaded, the omission to insert, prout patet per rtcordum, is a fatal defect, if assigned as cause of special demurrer; and there is no difference in this respect, between records of the same, and those of any other court.</p> <p>Where matters of fact as well as of record are averred in a plea, the conclusion should be by a general verification, and not with a verification by the record.</p> <p>A defendant may plead in bar at the same time, a judgment in a prior action by way of estoppel, and the general issue. These are not inconsistent nor incompatible pleas.</p> <p>G on the 3d November, 1829, brought an action upon the case against S, for an injury to his mill, by backing water upon it from a mill-dam below. He claimed damages from the 10th September, 1827, to the time of the impetration of his writ. S pleaded in bar a verdict and judgment in his favor, in a prior action brought by G against him, on the 9th November, 1827, for an injury of precisely the same character, committed upon the 1st June, 1822. Among other allegations, the plaintiff averred in both suits, that the defendant had raised and increased the height of his mill-dam or tightened it, whereby the water course was obstructed, &c., and the plea in this action, after setting forth the proceedings in the first cause, prayed judgment if the plaintiff ought to be admitted against the first verdict and judgment, to say that the defendant had so raised his dam, &c. The first action was tried upon the plea of not guilty. Upon demurrer to this plea, it was held, that no matter of fact or of right appearing under the circumstances to have been distinctly put in issue in the first suit, the finding of the jury and judgment of the court,-formed no estoppel to a recovery in the subsequent action.</p> <p>(The rule by which the sufficiency of a plea of a prior judgment by way of estoppel is to be tested, is, does it plainly appear that the fact or' right relied on as a bar, was distinctly put in issue, and found by the jury, in a for-V. mer suit between the same parties.</p> <p>(The plea of not guilty in an action upon the case, puts in issue not only every material fact contained in the declaration, but every defence admissible in evidence under such a plea, of which the defendant should offer (_ testimony.</p> <p>Under such a plea the defendant may give in evidence a release—satisfaction—an award—a license to do the act complained of—any justification or excuse, or whatever in equity and conscience, according to the existing ^circumstances, precludes the plaintiff from recovering.</p> <p>C It is a general rule, that the verdict and judgment upon the merits in a former suit, is, in a subsequent action, between the same parties, where the cause of action, damages., or demand are identically the same, conclusive against the plaintiff’s right to recover, whether pleaded in bar, or given in evidence under Ihe general issue, where such evidence is legally admissible; and that such prior verdict and judgment need not be pleaded by way l_jof estoppel,</p>

<p>On the 25th of October, 1820, M, of Baltimore, sold L, of Havre de Grace, Md. merchandise to the amount of $395 89, at 6 months’ credit. On the 3d of January, 1821, L made further purchases from M, to the amount of $552 97, at 4 mos. credit, which last sum was guarantied by D. On the 5th of May M notified D that his guaranty was due, and, on the 7th, M drew upon L for the amount of the first purchase. On the 8th L advised M, that he could not pay this draft, and wrote he presumed “before it becomes payable you will be paid the amount of it, having directed A to pay D the amount of thejirsi invoice, to pay over to you. We wrote D to this effect: in two or-three days he (A) or Mr. D will call and pay the amount of your draft.” On the 10th D paid M $400, for which the latter gave a receipt, viz. “ received of L through D, on account,” &c. On the 16th June, D paid M $400, for which he gave another receipt, viz. “received of D for account of L,” &c. The transactions between M and L were conducted by agents, who deposed at the trial, that the payments in 1821 wer ehanded to D to be applied for his security and relieve him. In an action upon this guaranty it was held, that if the jury believed that when the first payment cf the 10th May was made, M had received L’s letter of the 8th, then M was bound to apply that payment in discharge of the purchase, unless L before the payment gave different directions, or M had reason to believe he intended a different application.</p> <p>It is a general rule, that a debtor on different accounts, may when he makes apayment, apply it to which account he pleases; but, if he does not at the time of payment apply it specifically to either, but makes it generally, or on account, the creditor who receives it, may apply it to which accountjie pleases.</p> <p>The application of a payment need not be expressly directed at the time by the party paying the money, but liis intention may be inferred from the circumstances of the particular case.</p> <p>The mere fact that a payment was made to a creditor, having several demands upon the same debtor, with the debtor’s money, through one who was the security of the debtor for one of the debts, is not a circumstance from which any inference can arise, that the debtor intended it should’ be applied to the debt of which such agent was the guaranty.</p> <p>Where there is evidence tending to prove a controverted fact it should be left to the jury.</p>

<p>There are many exceptions to, and modifications of the rule,§that a trustee, executor or administrator, cannot become a purchaser at his own sale, and that if he does, such sale is void.</p> <p>A trustee who purchases at his own sale, may be treated in Chancery according to circumstances, as a purchaser for the benefit of the cestui que trust.</p> <p>In some cases, a trustee will be protected in his purchase at his own sale ; as if the c. q. t. be of full age, and under no disability, and with a full knowledge of the transaction, lies by for an unreasonable time, or being under age, or other disability, does not in a resonable time after coming to age, or the disability is removed, seek to set aside the sale, or treat the trustee as a purchaser for his benefit, it will be considered as an acquiescence in the sale.</p> <p>It is only a favor of the c. q. t. or party interested, that Chancery will vacate such a sale. A court of law is not the proper tribunal to pronounce it void, or set it aside, merely on the ground that the trustee was purchaser at his own sale.</p>

Appear from Charles County Court. On the 10th of July, 1826, the appellants, Johnson and wife, formerly Mary Coomes, instituted an action against the appellee, on the testamentary bond of one Teresa Coomes, as executrix of Wm. Coomes, dated July 29th, 1799, in the penalty of £5000 - the said Teresa Coomes having subsequently intermarried with James R. Green, the testator of the appellee.

This was an action of Trover, for sundry articles of merchandize, instituted by the appellant, against the appellee, on the 11th of March, 1830. Issue was joined upon the plea of not guilty. Upon an admitted statement of facts, the County Court gave judgment for the defendant, when the plaintiff prosecuted the present appeal.

This was an action of Debt instituted on the 30th of June, 1828, by the appellant, against the administrator of Boothe, who dying whilst the… Held: &c. on, &c., it was by the said court of equity then and there ordered and decreed, that the injunction issued in the said cause, to stay the execution of the judgment aforesaid, be discontinued and dissolved, and afterwards, at the said court of equity, held, &e., on, &e., the said James and Jeremiah struck off and discontinued…

<p>Under the act of 1809, ch. 138, a party may be indicted for wilfully burning a school house not parcel of a dwelling house. Such property is embraced by the terms, “ any other out house not parcel of a dwelling house,” used in that act.</p> <p>Maliciously to charge another with wilfully burning a school house, the pro-property of another, is per se actionable. ,</p> <p>But when a plaintiff alleged in his declaration, that the defendant maliciously said of him, “ he burnt the school house, ” inuendo, “ the school house of the defendant, ” or “ you burnt the school house, ” or the plaintiff by name “ burnt the school house, ” with the same inuendo, this was held insufficient upon a motion in arrest of judgment. These words do not per se, necessarily convey the meaning that the plaintiff had wilfully burned the house.</p> <p>Where words are not per se actionable, and there is not a proper colloquium stated, nor an inuendo, that the defendant meant by the words spoken, to impute to the plaintiff a crime, nor any special damage alleged, the action cannot be sustained.</p> <p>The report of the case of.House vs. House, 5 Harr, and Johns., 125, explained.</p>

Cross Appeals from Saint Marys County Court. This was an action of Debt, instituted on the 20th January, 1828, in the name of the State, for the use of the President and Trustees of the Charlotte Hall School, on the bond of Greenwell, as administrator of one Marcus Killion, dated 9th September, 1818, in the penalty of £5000.

The present bill was filed by the appellant, against the appellee, and one Thomas Lee, (since deceased,) on the 24th of October, 1825.

This was an action of Debt, instituted by the appellee against the appellant, and one Thomas N. Mudd, who died pending the suit, on the bond of Burch, one of the appellants, as. administrator of Walter S. Parker. The bond bears date on the 19th of May, 1817, and is in the penalty of $20,000. The defendants pleaded general performance by the administrator, Burch.

A petition was filed by the appellant in this case, on the 10th of January, 1832, which stated that the petitioner, as assignee of one Benjamin II. Mullikin, had a large claim against the intestate of the appellee, upon a judgment rendered against him in his life-time, which had been duly proved, passed, and exhibited to the appellee, by whom a part had been paid.

Appeae from Saint Marys County Court. Assumpsit by the appellant against the appellee, commenced 20th August, 1828, for money had and received, and for money paid, laid out and expended. The general issue was pleaded. 1.

This was an action of Assumpsit, commenced by the appellant against the appellee, and .Elizabeth his wife, formerly Elizabeth Magruder, on the 10th of March, 183L The death of Elizabeth was suggested, whilst the cause was depending in the County Court.

This was an action of Debt, brought by the appellant against the appellee, on the 27th January, 1830, on a bond executed by the appellant, as administrator of William, H. Dorsey, deceased, dated 24th January, 1819, with Clement Dorsey and R. E. Dorsey as his sureties.

The facts of this case are fully set forth in the opinion of the Chancellor, and of the judge by whom the opinion of this court was delivered. Bland, Chancellor, (March term, 1830.) It appears that the late James Mitchell died intestate, and seized of sundry parcels of land, which descended to his six children, Martha, Kent, Bennet, Harriet, James and Aquila.

Assumpsit, by the appellee against the appellant, commenced on the 22d of March, 1828, on a promissory note dated 20th August, 1816, for $213, of which the appellant was the drawer, payable to the… Held: that non-resident plaintiffs were barred by that act from bringing suits, unless brought within three years after its passage, and granted the first prayer of the plaintiff.