Volume 4 — Harris & McHenry's Maryland Reports

F THIS was an action of debt upon a bond dated the 3d of December, 177T, and conditioned that the defendant would observe and perform the covenants, &c. mentioned in an indenture or assignment of lease, bearing date on the same day, and executed by and between the plaintiff’s intestate and the defendant.

This was an action of debt upon a Bail Bond given to the plaintiff, then being sheriff of Baltimore county, by Andrew Holmes, with the defendant as his security, for the appearance of the said Andrew before Baltimore county court on the fourth Monday in March in the year 1793, to answer unto Isaac Telfair (for whose use this action is brought) in an action on the case. &c. The defendant pleaded payment, and issue was joined on the general replication, aud the cause continued…

<p>This was a writ of certiorari, issued on the part of the defendants, to Samuel Hepburn one of the justices of the peace of the state of Maryland in and for 1’rince George’s county, for the removal of certain proceedings depending before him on a forcible entry and detainer. By the return made by the justice it appeared that there had been no inquisition found, and that no proceedings had taken place, except a venire facias to the sheriff to summon a jury, which had not been returned, and no jury had been impannelled.</p>

The bill file;! in this case on the 11th of April, 1791, in the name of the attorney-general of the state, at the relation of William Hindman, William Perry and Gabriel Duvall, stated, that the defendant in the year 1774, being possessed of part of a tract of land called Wright’s Square, situate in Q,ueen-Anne’s county, and nearly adjacent to the Manor in the said county, on the 20th of October, 1774, (setting forth that he had discovered some vacant land adjoining to his…

Bixx filed the 7th of March 1794, by John Campbell, and C. C, and others, the creditors of William and George Digges, against the executors of George Digges, who was the executor of William Digges, and against the eldest son and widow of the said George Dignes, stating, that the said William Digges, being seised in fee of an estate in lands in Charles county, called Charles-Tonan, and also of a valuable landed estate in Prince George’s county, on the 17th of July 1780, by…

Appe al from the Court of Chancery. The bill filed by Cue present appellant, stated, that the defendant CGoughJ being, or pretending to be seised, of a lot of ground in Baltimore-town, No. 22, did on the 8th of November, 1788, enter into an agreement with the complain ant, to sell and convey to him, in fee, two parts of tiie said lot, which parts are described, &c. It was at the same time agreed, that the complainant should pay to the defendant 363/. current money, with…

<p>Tins was an appeal from a decree of the court of chancery. The bill which was filed by the present ap-> peilee on the 7th of October, 1794, states, that Axel Warfield, father of the complainant, died intestate many yeans since, leaving debts due on unsettled accounts to and from him, and the administration of his personal estate was in clue form of law committed to the complainanf. That a certain Joseph Howard deceased, J?<i« chsl his widow, (who has since intermarried with Joseph BeallJ Thoav-s Cornelius Howard, Brice Howard and Joseph Howard, were respectively indebted to the said Axel in his lifetime, in certain sums of money, as by the accounts exhibited, Nos. 1, 2, 3, 4, 5 and 6, appears. That tine said Brice and Thomas C. surviving partners of Brice, Thomas G, and Joseph, three of the persons above named, exhibited a claim against the said Axel for sundry dealings and articles between the years 1773 and 1778, and commenced suit thereon against the complain ant as administrator of the said Ax,el, to recover the balance alleged to bo due on the said claim, to which said suit the complainant appeared; and as the plaintiffs were reluctant to allow the several accounts aforesaid to be discounted and set off against their claim, (although, each of the persons so indebted to the said Axel was concerned in interest in the claim on which suit was brought, as the complainant believes he can readily make appear) he therefore directed his attorney to plead and rely on the statute of limitations, and to set up the above claims in bar, which was done. That on the morning of the trial of the cause, the plaintiffs’ counsel made a proposition of a general reference of the said cause, to which the complainant, with the advice of his counsel, dissented; but proposed that if all legal objections should be waved to the accounts which he set up in bar* and the equity and justice of tine case, osi a view and examination of all the accounts, were alone to be regardcd, he would, under such restrictions, agree to a reference; and the eomplainant accordingly assented to a special reference, couched in terms calculated expressly to introduce all his accounts in bar if just, and without which he never would have waved the benefit of the act of limitations.</p> <p>That when the complainant and Brice Howard appeared before the referees, the said Brice acknowledged all the accounts exhibited by the complainant to be just and true. That the referees examined each of the exhibits Nos. 1, &c. and although they state that they appear all just, yet they refused to allow or discount several of them, mistaking and misconceiving the nature and extent of the terms of reference; and under such mistake awarded a large sum of money against the complainant, although in truth a balance was due to the complainant; and as each of the persons named in the claims and exhibits Nos. 1, &c. were interested in the account on which suit was brought against the complainant, it was intended by the terms of the refei’ence that such claims, if just, (and so the referees have set forth) should be allowed. That the complain-, axxt’s counsel omitted to prevent judgment being entered on the award, and it passed sub silentio; but being advised that the court of appeals would x’ectify an errox- or mistake existing or appai’exxt on the face of the award and record, the complainant x*emoved the said cause to the coui’t of appeals, wliei’e from the indisposition of his counsel, ox* other cause unknown to the complainant, the judgment was affirmed without alignment or opposition. And the plaintiffs in such judgment have issued •¿fierifacias against the goods and chattels of the said J%eZ, in the hands of the complainant, and threaten to proceed to sale, although one of the exhibits, admitted to be just by the rcfex’ees, contains a considerable claim against one of the plaintiffs who hath issued the execution, and which, contrai’y to all equity, and in violation of the terms of the reference, hath not beexx deducted or credited.</p> <p>That the complainant, in hopes he could recover some of the claims not credited or allowed by the referees, brought suit against Joseph Beall, and wife, administrators of Joseph Howard, on the account No. 1, which was laid before the refex*ees; whereupon the defendants entered into an agreement, which was to vest in the complainant the amount of his claim when the said defendants should recover the same, on a suit depending in the court of chancery brought by them against those very persons who have issued the feri facias against the complainant; which proves the very money to be levied Is to be applied to those who are indebted to the complain ant, and whose debt in the first instance ought to have been allowed to the complainant as a discount under the terms of reference; — and the complainant well hoped that the defendants, Brice and Thomas C. Howards knowing of the assignment from Beall to him, and knowing of the mistake and misconstruction of the referees in their award, and knowing the said Thomas C„ to be largely indebted in an account to the complainant, acknowledged to be just, that they would have desisted from issuing a fieri facias — -But now so it is, &c.</p> <p>The answer of Brice Howard. That Joseph Howard, deceased, and the defendants, carried on, as joint partners, a mercantile connexion for several years in buying and selling merchandize, and that during the course of their co-partnership the said Axel purchased of the said company goods, &c. to a considerable amount, for which he was indebted at the time of bis death. That the said. Axel for many years before bis death carried on the business of, &c. and during that period did work, &r, for Joseph Howard and company, (consisting of the defendants and Joseph Howard deceased) who carried on a plantation for their joint advantage, to the amount of the exhibit No. 5. That after the death of the said Joseph, which happened in 1777, the said plantation was carried on by Rachel (the widow of the said JosephJ and the defendants, for their joint benefit; during which period the said Axel did . work, &c. for them to the amount of exhibit No. 4. That the said Axel in his life lime, did also sundry work, &c. for the said Brice, as specified in the exhibit No. 6, for which the said Brice was willing that the said Axel should he credited in his account with the company, consisting of the said Joseph and the defendants. That the several accounts specified in the complainant’s exhibits Nos. 1, 2 and 3, were not contracted on the copartnership account, and this defendant knows not whether the same be just or otherwise; and if they are just, this defendant contends the complainant has his remedy for recovery thereof against the executors of the said Joseph, against the said Rachel, w ho hath intermarried with Joseph Beall, and against the said Thomas Co Howard; all of whom are in solvent circumstances, and fully capable of discharging any just claim against them.</p> <p>That finding no mode of settlement could be obtained with the complainant, without blending various accounts in the adjustment thereof, which the complainant unreasonably insisted should be accounted for by the company, and which they were not accountable for, being hi • no wise as a company interested therein, this defendant was obliged to bring suit for recovery of £¡ie sajc} clajm- which suit after various continuanees, was referred, the terms of which fully as’certain and specify upon what conditions the said reference was entered into. That when the said reference was assented to, and entered into by the parties, it was intended, and so expressed, that the arbitrators should he confined to no other transactions but those which had arisen between the said Axel and the company. That the defendant was not induced to consent to a reference with the complainant because he had pleaded the statute of limitations, for he was provided with testimony at the trial to prove the acknowledgment and assumption of the said Axel, some siiort time before his death, as to the justice of the claims for which suit was brought against the complainant. That he, this defendant, made no admission respecting the justice of the accounts in the exhibits Nos. 1, 2 and 3; on the contrary this defendant always refused to discount the same out of the co-partnership claim for which the complainant had been sued. That in the opinion of this defendant the arbitrators did not mistake or misconceive the nature and extent of the terms of reference entered into, as the same were canvassed over between the complainant and this defendant, in presence of the arbitrators. That this defendant consented to the reference expressly for the purpose of avoiding the settlement of accounts which he, as acting partner of the company, had nothing to do with.</p> <p>That if the award given by the arbitrators was contrary to law, and not pursuant to the powers vested in them, the general court had full power and authority to set the same aside; but instead thereof judgment was entered on the said award by the general court, and the same was confirmed in the court of appeals, where the said complainant had full remedy, provided his case had admitted of relief. This defendant, therefore, doth plead the said award, and the proceedings had thereon at law, in bar to any inquiry or investigation of the subject in this court. That the said Beall and wife have no just claim against the defendants on account of the copartnership, this defendant having paid the legal representatives of the said Joseph Howard the full proportion which was due to the said Joseph on the said co-partnership; but if if were otherwise, this defendant contends, the complainant cannot avail himself thereof, he being no party to the chancery suit referred to in the bill of the complainant.</p> <p>The answer of Thomas C. Howard, states, that the said Brice ^ the other defendant, always managed the company conceims of Joseph Howard and the defendants, during their copartnership, and this defendant never intermeddled in any manner with the settlement of the same. That the said company had nothing to do with the private claims against the respective copartners.</p> <p>That the account specified in the exhibit No. S, against this defendant, is not just or true, and this defendant never would consent to settle the same, either with Axel in his life-time, or with the complainant, since his decease.</p> <p>That if the complainant hath any just claim against this defendant, he is botli able and willing to pay it, without having the same blended with the copartnership transactions of Joseph Howard, Co. the sole management whereof is vested in the said Brice.</p> <p>This defendant relies upon the award and judgment thereon obtained against the complainant, and pleads the same in bar to any relief in this court, the complainant having had a full hearing before the arbitrators, and their judgment being confirmed.</p> <p>Exhibits. No. 1. An account against Joseph Howard.</p> <p>No. 2. An account against Rachel Howard.-</p> <p>No. 3. An account against Thomas Cornelius Howard.</p> <p>No. 4» An account against Thomas C, Brice arid Rachel Howard.</p> <p>No. 5. An account against Howard Sp Company.</p> <p>No. 6. An account against Brice Howard.</p> <p>The terms ofkeeerexce were, “This cause is re- “ ferred to Messrs. Thomas, Richard aw'd Benjamin “ Harwood, arbitrators, who are to award according to “ the principles of equity, and to allow all accounts “ that are just, without regard to legal objections; and « on the award of them, or any two of them, judg- “ ment to be entered.” ' ^</p> <p>The award. “ Agreeably to the order of the court, we the subscribers, having taken into consideration the settlement of the accounts of the said Thomas C. Howard and Brice Howard, surviving partners of Joseph Howard, and Charles Alexander Warfield, administrator of Axel Warfield, are of opinion, that although the accounts exhibited against Joseph Howard, deceased, Thomas O. and Rachel Howard, appear to be just, cannot be deducted from the claim of Thomas C. Howard and Brice Howard, surviving partners of Joseph Howard; hut have deducted from their claim the accounts of Axel Watfield against Thomas C. Howard, Brice Howard, and Rachel Howard, Messrs. Howard ¿j° Company ami Brice Howard, and find that the said Charles A. Warfield, administrator as aforesaid, is indebted to the said Thomas €!. and Brice Howard, 89k 8s. Sfid. principal, and the sum of 53Í. 14s. Od. for interest thereon. And wc do therefore award, that the said C. Jl. Warfield, adminisfo-atoj. aforesaid, pay unto the said T. C. and B. Howard, surviving partners as aforesaid? the sum of 1431. 2s, 5~d. current money, and costs of suit. In witness,” Ac.</p> <p>Agreement between the counsel for the parties, that the case be submitted to the chancellor for a final decision on the bill, answer, exhibits, and other proceedings. Also that the general court was not moved to set aside, and did not examine into the merits of the award. Also that the counsel for the complainant, as defendant at lav.’, had notice of the return of the award in the general court.</p> <p>Hanson, Chancellor, (February term, 1795,) Three points have been made by the defendants.</p> <p>1. As there is no allegation of want of notice, or unfair or improper proceedings in the referees, the award ought to he held final and conclusive.</p> <p>2d. Supposing an inquiry or examination of the award might be made on the ground of a mistake apparent on the face of it, the referees have actually made no mistake.</p> <p>3d. As the award was made on a rule of the general court, to which it was returned, and in which judgment was thereon entered? and of which the power is coextensive With the power of this court, the complainant is precluded from relief by a settled principle of this court.</p> <p>As to the first point, the chancellor is clearly of opinion, that although the course and manner of proceeding of referees be strictly proper, if there be any mistake apparent on the face of the award, it is a good ground for setting the same aside, or granting suclj other relief as may be best suited to the case.</p> <p>As to the second point, the chancellor conceives it a settled point, or at least a point which ought to be settled, tiiat when two or more men enter into partnership to which any person becomes indebted, any debts which one of the partners contracts with such person, shall he discounted, (at least in equity) from the debt due to the company. The safety of society requires such rule; as without it a mail by entering into partnership, and investing his property therein, might impose on and defraud his own private creditors. Suppose A and B to he partners; C becomes indebted to them 100Í. and afterwards A becomes indebted to him on his private account 100k If C cannot discount this claim, from the partnership claim, the consequence will be this, that A will recover from him SOL notwithstanding that A owes him double the sum. Should he afterwards bring suit against A it may turn out that A has no property except what is vested in the partnership, and on hecoming bankrupt, the property belonging to the company may be applied in the first place to the discharge of the company’s debts. The establishment of such a rule is by no means injurious to the company’s creditors; cause they have to resort not only to the company’s property, but to the property of each partner. In short, mankind would never be secure from fraud and imposition, practised under colour of partnership, if the construction of every rule or provision were not favourable to the person who contracts debt with a company.</p> <p>With respect to the last poi/ii, although this court hath sometimes refused an injunction to stay proceedings at law on a judgment entered on an award made under a rule of the genera! court, when the injunction has been prayed, on the suggestion of improper conduct in the arbitrators; and although the reason for refusing the injunction was that the party had neglected his application to the general court, which had full power to relieve him, it by no means follows that this court would never examine an award made under a rule of reference in the general court. Whether or not an injunction shall issue depends on all the circumstances of the case. And if aman has quietly submitted a judgment to be entered against him on such an award, and hath delayed the plaintiff by carrying his cause to the court of appeals, which after a considerable lapse of time hath affirmed the judgment, it is not reasonable that he should further delay the execution by injunction, notwithstanding that on a bill filed in this court for relief against the judgment he may finally obtain relief,</p> <p>It is by no means an universal rule, that wherever a man has a competent remedy at law, this court will not exercise a jurisdiction. Various are the cases where the party has his election to proceed at law or in chancery. The rule is this, that where the party hath had a fair examination.of his case before a tribunal which was competent for his relief, this court will not interfere. But to say that this court will not interfere lie cause the case might have been examined before another competent tribunal, would be to declare, that this court, will not exercise a concurrent jurisdiction with any other tribunal. Besides, this court on a variety of accounts,» is more proper than a court of law for examining into every thing respecting an award.</p> <p>Supposing this court not to grant relief in the present case, it is plain that although the referees have declared the complainant’s accounts to be just, he may be deprived of his relief at law by the defendant’s refusal to have the several causes tried upon their merits. Here then is an additional reason for the court’s interference.</p> <p>As to the answer’s denying the justice of the accounts, the chancellor apprehends that the rule respecting answers dees not apply. There was no necessity for the defendants to declare whether or net there was a mistake on the face of the award, which speaks for itself.</p> <p>It is difficult to understand the principle on which the referees decided. The true meaning of the reference appeal's to he this — they shall allow all accounts which are true and just in themselves, and which are proper to be discounted from the plaintiff’s claim, any legal objections to such accoimte notwithstanding. What was meant by legal objections were these — want of regular probat, operation of the act of limitations, and the like. The meaning was not, as contended for the complainant, that the referees should at all events allow the accounts he had exhibited — They were first to consider, whether tluwo. accounts were of such a kind as ought to he discounted, and, if they were of such a kind, whether or not they wei’e true and just. The referees, in their award, have declared those accounts to be just, although they do not allow them, because they are not prop r to be discounted; and herein the chancellor thinks they are mistaken in the face of the'award.</p> <p>But why have they allowed the account a just one against one of the surviving partners and not against the other? Why have they allowed the claim against Brice, Thomas and Rachel, to be discounted from the claim of Thomas and Brice only? An account against a different company, of which they are partners, can on no principle differ from an account against one of them only. But probably, in considering the accounts, the referees examined the interest v Inch the several persons would have in the money when recovered from the complainant; that is to say, if'Rachel was entitled to so much of it, when recovered, as she owed the complainant, there was no necessity for a circuity of payments; and if Thomas C. was not entitled to part of it, when recovered, the account against him ought not to be discounted. If that was the principle of the referees it was certainly plausible, although not satisfactory to the chancellor.</p> <p>■ Upon the whole, it is evident to the chancellor, on the face of the award referring to the accounts, that had they allowed all the accounts proper to be allowed, nothing would have been due to the defendants; and therefore the referees would have awarded nothing; and of course the defendants would not have obtained a judgment.</p> <p>It is thereupon, this 5th day of March 1795, by, &c. a ¡judged, &c. that the injunction heretofore issued In this cause be and is hereby declared to be perpetual; but that each of the parties in this cause bear the legal costs expended respectively in the prosecution or defence of this suit.”</p> <p>Tub defendants appealed to the court of appeals; and at the last term the case was argued by Martin (attorney-general) and Ridgely, for appellants. Key and Mason for appellee.</p> <p>This is an appeal from a decree of the chancellor; which decree set aside a judgment on an award obtained in the general court, and afterwards affirmed in this court; and which decree also ordained that debts contracted with separate individuals of a company should be paid out of the copartnership effects, although no settlement of the company concerns had taken place; and also that the share of one partner should be applied to pay the private debts of another: nay further, that the debt of a person who was not a partner should be discounted* though no party to the suit.</p> <p>In order that the court may comprehend this case, and give due weight to the arguments which will be urg-ed for a reversal of this decree, I shall beg their attention while I state the facts arising in the case.</p> <p>From the facts stated in the record they briefly appear as follow:</p> <p>That a reference took place between the parties in the suit in the general court.</p> <p>That the cause was referred to Messrs. T. R. and B. Harwood, “ who are to award according to the principles of equity, and to allow all accounts that are just, without regard to legal objections.”</p> <p>The arbitrators, by their award, awarded 58J. 8s. 5Id. principal, and 531. 14s. 0d. interest. They say, that although the accounts against J. Howard, deceased, T. C. Howard, and Rachel Howard, appear to be just, yet they cannot be deducted from the claim of T. G. II. and B. XT. surviving partners.</p> <p>On this award, after laying the usual time in the general court, and the defendant having notice thereof, a judgment was entered at May term 1792. From this judgment the defendant appealed, and on the appeal, judgment was rendered by this court in favour of the award.</p> <p>The defendant then filed his bill in the court of chancery, and on the answers being filed, which denied the facts alleged, the chancellor has decreed a perpetual injunction, or in other words, he has set aside the judgment and the award, and allowed these private accounts against the company.</p> <p>From this decree of the chancellor, we have applied to this court for relief.</p> <p>Before we enter upon the merits of this dispute between the parties upon principles of equity, without having any regard to the judgment rendered in the general court, I shall contend, that the court of chancery hath no jurisdiction to set aside this award and judgment rendered in the general court, inasmuch as the power and authority of the general court, with regard to awards, is coextensive and coequal with the court of chancery.</p> <p>That where a court of common law, having complete powers to decide on the merits of an award, hath exercised their judgment, & court of chancery will not interfere, and undertake to say, such court of common law hath acted wrong.</p> <p>That the chancellor cannot interpose his authority, and give relief, in any case where the whole, matter hath been subject to the jurisdiction of a court of common law, who hath given judgment thereon.</p> <p>A strong circumstance, independent of authorities, to satisfy this court that the chancellor cannot interpose, consistent with the powers appertaining to a court of equity, let us refer to the language of a bill in chancery.</p> <p>A bill in chancery is in the nature of a declaration at law, setting forth the facts, and praying relief, upon the suggestion that the party is without remedy at common law. 1 Har. Ch. 40.</p> <p>The ground upon which a court of equity controuls a court of common law, arises on an allegation, that the court of common law, by its rigid maxims, is incompetent to give relief — not that the party neglected to obtain relief.</p> <p>A fair inference may be then drawn, that if the party complaining has remedy at common law, the court of chancery ought not to interpose. This appears to be the true distinction.</p> <p>It may be well to consider the consequences and confusion that would ensue, if two courts, coextensive in their piowers, can be controuled, the one by the other, where no appeal is provided from the judgment of one to the other.</p> <p>The inconveniencies would be such as to furnish strong reasons to suppose that two coequal jurisdictions cannot exist independent of each other in the same community.</p> <p>To show that the position which I have laid down is a legal one, let us see what powers are exercised by courts of common law in cases of awards.</p> <p>Before the statute of 9 and 10 Wm. 3, c. 15, (Z jEq, ab. 91, for clauses of the statute) courts were very limited in their jurisdiction respecting awards. That statute was made to give facility to this speedy and amicable mode of settlement; nevertheless it provided that no process to enforce the performance of an award should be delayed by courts of law or equity, unless it appeared, on oath, that arbitrators misbehaved, or that the award was procured by corruption, or other undue means, and then shall be deemed void, and set aside, in any court of law or equity.</p> <p>This act of parliament, when duly considered, must give weight to the doctrine 1 contend for, to wit:</p> <p>That the hearing ought to be before the court where the reference is made.</p> <p>If the reference he made in chancery, chancery ought to inquire — if the reference is at common law, common law ought to inquire.</p> <p>To shew that courts of common law in this case have all the po%ocrs of a court of chancery, nay powers moro extensive than any derived from the statute of Win. 8, etvt 15, let us advert to our act of assembly.</p> <p>By the act of assembly, October session 1778, ch. 21, s. 8, «If any cause instituted in any court of this state shall be referred to the award of any persons, it shall he lawful for such court to give judgment, and award execution, in the same manner as they might do upon verdict; and such judgment shall have the same effect, to every intent and purpose, as any judgment upon verdict; provided such award shall remain seven clays in court before judgment be entered. And if it shall appear to the court that the award was obtained by fraud or malpractice in, or by surprize, imposition, or deception of the arbitrators, or without due notice to the par^j, their attorney or attornies, it shall be lawful for said court to set aside the said award.” By the act of 1785, eh. 80, s. 11, a copy of the award to he delivered to the adverse party, or his attorney, before judgment is moved for, and the court shall not give judgment without proof that a copy of the award has been served on the party.</p> <p>From these acts of assembly, and the formalities required by them, the law is fixed, that a judgment on an award shall be to every intent and purpose of the samo effect as a verdict; ami I shall show that a verdict cannot be sot aside in chancery for any of the matters suggested in this bill.</p> <p>Under the acts of assembly no judgment could’ be entered without notice— Court to inquire into fraud, & c,</p> <p>I shall now advert to several authorities to show, that in England, where courts of common law have not the same extensive authority as under our acts of assembly, and where attachment only issues to enforce an award, and where it has not ail the, conclusive qualities of a verdict, a court of equity will not interfere after hearing m law.</p> <p>Courts of equity have no greater latitude than courts of common law to determine awards. Prayer of a bill to set aside an award, must be founded on fraud, corruption, or misbehaviour. 2 Atk. 504.</p> <p>If courts of equity were to take greater latitude in determining awards, than courts of law, it would introduce confusion and uncertainty — it is better therefore to adhere to one rule.</p> <p>Where a submission by rule of a couri of law, a court of equity will not entertain a bill to set aside an award, even for corruption or partiality, unless court of law have refused relief. 2 Atk. 155. Kyd, 230.</p> <p>The only instance of a bill in chancery on a reference and award in K. B. is Ward’s case. id. The reason why the chancellor interfered in Ward’s case, was because the judges divided in K. B. £..«« no attachment could issue to enforce the award. It was referred to the master to know what had been m K. B. 2 Vez. Sj-7.</p> <p>In the case in 2 Mkins, 155, there was an award in K. B. The plaintiff brought his bill suggesting fraud and corruption in the arbitrators. The defendant plead the award. Per Lord chancellor, why did you not proceed in K. Bench, the proper court to examine into partiality or corruption of the arbitrators?</p> <p>Bill to set aside verdict and judgment at law as obtained against conscience; defendant pleads verdict and judgment in bai’. Plea adjudged good. 3 Mk. 221.</p> <p>Bill to set aside award. Three causes assigned — 1st Excessive damages. 2d. Misbehaviour in arbitrators. 3d. That the repairs for which damages were awarded were made before award gidkn in. The defendant insisted that the award ought not to be set aside unlcss/raiti?. or partiality, that plaintiff had notice to attend, but did not, paid that umpireliad no notice of repairs being made, and if he had, not material to avoid the award. Bill dismissed. 2 Ca. Ch. 140.</p> <p>The same case in l Vern. 158, where it is said that the defendant insisted that award vas made pursuant to rule of court, and that matters were examined in common picas, and that there was no fraud or collusion in the arbitrators, necessary to avoid an award in equity.</p> <p>When a submission is by rule of court, equity wilt not relieve, when the matter has been examined by another court that had jurisdiction, unless the equity be that some matter oí fraud in the award had come to the knowledge of the party since the former examination, and which did not appear before the court. 2 Eq. Ca. Ab. 92. 3 Vin. 134, pl. 19.</p> <p>The court will not permit the plaintiff to discuss any legal, objection to the award itself, because advantages saay be taken of them at laxo. Amb. 245. Kyd, 241. Lord Hardw. 296. 1 Stra. 301.</p> <p>Hence it must appear that the chancellor hath exerdeed powers in reversing the judgment of the general court not warranted by iaw, or by any authority to be found in the hooks.</p> <p>I shall now proceed to consider this case upon principles of equity, independent of any axvard and judgment in the general court, in the same manner as if the suit between the parties had been originally instituted in the court of chancery.</p> <p>I shall contend, that upon every principle which influences a court of equity, the private claims against Joseph Howard, deceased, T. C. Iloxoard, and Rachel Iloxoard, cannot be discounted or set off against the claim of B. and T. C. Howard the surviving partners.</p> <p>I do admit that the court of chancery will set off and discount mutual claims between the same parties, but no instance can be produced where a demand against one partner, arising for articles furnished for his private use and benefit, will be discounted after verdict from a judgment obtained by the company.</p> <p>For the true distinction, 8 Viner, 560. Intestate, who died insolvent, bought sugars of a company, and let one of the partners have paper, which was applied to the use of the company, and evidence was given of an intention to discount; the sugar was joint stock, and the paper applied to the use of the joint trade, and not for the partner's separate use. The administrator brought suit and recovered judgment. The Lord Chancellor decreed discount, because the intestate was insolvent and no other remedy left to the company; because the claim arose on the joint account, and was not applied to the separate use of the partner; because evidence of an intention to dis~ count in the parties at the time.</p> <p>Not one of the reasons which influenced Lord Mácelesfield's opinion exist in the present case.</p> <p>Accounts No. 1, 2, 3. do not contain claims for articles supplied the company. They contain claims against J. Iloxoard, decease,;!; against R. Howard, the widow, contracted by her separately after his decease, when the copartnership was at an end; against T. C. Howard for blacksmith's work done for their separate farms, and not for the use of company. No evidence has been offered to show they were intended to be discounted out of the company claims, hut strong presumptions that they we re not; because at this very time, the testator A. W. kept a distinct account against the company for work done for them in company. If the.se accounts ■were intended to be settled with the company’s claim against him* why did he not charge them to the cow pa-All the parties indebted by exhibits No. 1, 2 and £ are j(1 good circumstances, and able to pay. There is no allegation in the bill of their insolvency or inabiliiij to pay, or that the claims will be lost if not discounted,, The complainant has his remedy at law against-each.</p> <p>In 1 Eq. M. £70, there were two partners, one dies, and the survivor owes private debts to the debtors of the company. The court ordered him to give security for half.</p> <p>A B and C in trade, as partnersj C wastes and contracts private debts, and becomes bankrupt; commissioners assign company debts. A and B brought their bill. Decreed that the company debts should be first paid. That assignees to stand in C’s shoes. 1 Eq. M. 370.</p> <p>An estate belonging to joint trade, to pay joint debts, separate creditor petitioned to be lei in, and it was rejected. 1 Eq. M. 55.</p> <p>The joint creditors are to he paid out of the partnership effects, and the separate creditors out of separate effects; if any surplus of the partnership effects, the separate creditors to come in. 2 P. Urns. 500.</p> <p>In 1 Vex. 239, Lord Hardwicke said, if a creditor of one partner takes out execution against the partnership effects, he can only have the undivided share of his debt- or, and must take it in Use same manner the debtor himself luid it, and subject to the rights of the other partners.</p> <p>The claim of a creditor of partners severalty, for money which came to the use of the partners, may be proved against the joint or separate fund. It is a joint debt- in respect of its having come to the joint use. 2 Bro. Cha. £96. A creditor separate cannot effect the stock. 1 Vex. 242.</p> <p>The separate creditors of one partner cannot claim against the joint stock. 3 Bro. Cha. 461, 462.</p> <p>Joint debts are to be paid out of the joint stock, and if ani' surplus it is to be applied to pay the particular debts of each partner. 16 Fin. 242.</p> <p>There is another objection which may he fairly urged against this decree.</p> <p>There is no mutuality in the discounts contended for by the. complainant and decreed by the chancellor.</p> <p>The judgment is for a company debt. The discounts prayed for are for private claims against separate individuals composing the company* and one individual not of the company.</p> <p>The statutes of set off and discounts only relate to mutual debts between the sanie parties, plaintiff and defatdant. Stat. 2 Geo. 2, ch. 22, s. 13, recited in 8 Vin. 560.</p> <p>Debts set off must be mutual — not a separate debt against a joint one. Tidd's Prac. 217.</p> <p>Debts between different parties will not be permitted to be discounted. Layer’s Costs, 207.</p> <p>The court of chancery adopt the same rule as laid down by the statute. 1 Vea. 375.</p> <p>The confusion would become endless if the doctrine of discounts, contended for by the appellee, was admit» ted; it would destroy every rule which courts of equity have invariably adopted in every instance, viz. That company property is first to be applied to discharge company debts, and separate property, separate creditors, and afterwards partnership creditors. 2 Vern. 706» 3 P. JVms. 125,</p> <p>Suppose the concern of J, Howard, Sf Co. owed, company debts sufficient to absorb the debts due to the com pa» ny, where would be the remedy of the company creditors if the stock of the company is s .vallowed up by private claims, individually set up against the separate partnerss arising from their separate engagements, and converted to their own private purposes? This objection cannot begot over.</p> <p>What will be the consequence of this decision? That hot only the private property of T. C. Howard is applied to pay this private debt of his, but the effects' of the other partners are taken for that purpose.</p> <p>But there is one other objection to * his decree which I cannot pass over, and I call upon the counsel for the appellee to reconcile; it appears to be without precedent or example; it is a new feature in, our equitable jurisprudence.</p> <p>The chancellor lias decreed, that the demand of a person, who was not a partner of this company, who was an entire stranger to it, who contracted a debt with the appellee’s testator long after the copartnership was dissolved, who was no party to this suit, should, be discounted out of it. See Rachel Howard’s account No. 2.</p> <p>Suppose the appellee’s testator had sued T. C. Howard and Joseph Howard, in his life-time for tlieso claims which the chancellor has allowed, and judgment had been obtained thereon, could a fieri facias ha\ c been issued so as to have taken the company property to satisfy this debt?</p> <p>In Cowper 449, 450, per Lord Mansfield, one partner can have no right against the other but what is due from him after making all just allowances. Assignees under a commission of bankruptcy against one partner* must be m the same state.</p> <p>Judgment against one joint partner does not affect the other partner. The court determined the sheriff could }l0¿ ge^ ^ a nmety. 2 Ld. Ray. 871. Salk. 392.</p> <p>If then such is the law, that the debt of one partner cannot be levied on the part or share of another, how can a decree say that the debt of one partner shall be satisfied out of the property of the copartners? Where did the chancellor derive liis power to supersede and controul this principle of law, so conformable to justice, that every man should pay his own debts?</p> <p>Establish this rule in chancery, and then one partner gets in debt, the creditor will apply to the court of chancery, by filing a bill, and the chancellor would decree the property of a copartner to satisfy the private debt. I wish to see some authority from adjudged cases to satisfy me on this point.</p> <p>But admitting a court of equity bad power of discounting or setting off against a copartnership debt the separate claims against each individual copartner, yet in so doing should not the common forms be pursued? Should not the testimony to be produced he conformable to the rules of equity?</p> <p>What is the rule of equity? A bill should have all necessary parties before the court who may be affected by the demand; if it appears that any, whose interest is concerned, are not made pai’ties thereto, the decree may be reversed. Hinde’s Trac. 213.</p> <p>Ail who are interested must be made parties, otherwise the decree will be reversed. 1 Harrison’s Ch. 32.</p> <p>All persons concerned in the demand, or who may be affected by the relief prayed, ought to be parties. Mitford’s Plead. 39, 144, 224.</p> <p>How docs the doctrine apply’ to the present case? Are there not several persons 'affected by this decree who are not parties? The executors of Joseph Howard and liaehel Howard. No opportunity has been given to them to contest the propriety or justice of the claims which the chancellor lias decreed in this ex parte manner.</p> <p>Suppose this decree had been acquiesced in, the surviving partners would liáve charged J. Howard’s share with the sum allowed. They would have charged Rachel Howard, the widow, with so much paid for her. But suppose she had, when applied to, answered, I have got a receipt against this account, why did not Warfield or his administrator apply to me for payment? It is discharged. Why not give me notice of this demand, I could have controverted it W’ith success; I am no party to this decree; I will not be bound by it.</p> <p>This would be a good justification; yet if the decree is right, Ji. Howard would he obliged to account to the copartnership For money paid by them when she had already paid it.</p> <p>No decree can be made against a man’s answer. 1 llar. Cha. 371.</p> <p>No decree can be had against a person who denies by his answer, if the cause is heard on bill and answer; the facts must be established by indifferent testimony. 1 Vern. 140.</p> <p>What do the bill and answer say? The bill charges these accounts to be just — The answer denies them. What is the evidence produced? That they appeared to the arbitrators to be just, yet as they had no power to inquire, the parties had no opportunity to contest their justice. Yet this is admitted as conclusive evidence.</p> <p>That the arbitrators had no power to investigate these accounts will appear by adverting to the powers committed to them under the award.</p> <p>The rule of reference is, “ this cause is referred to « T. H.” &c. 6‘ who are to award according to the prin- « ciples of equity, and to allow all accounts that are just, « without regard to legal objections,” tjc.</p> <p>This power was special, and could not be exceeded; to allow all just accounts must mean all just accounts between the parties. Could they take any othpr accounts into consideration than what arose between the parties?</p> <p>Suppose the appellee had brought suit against Bachcl Howard, or-T. C.Howard, and had offered this award in evidence to a jury to support his claim, would such evidence be admissible? could not the defendant object and say, that being no party to the suit, she was not bound by the opinion of the arbitrators. The same rule of evidence is in the court of chancery.</p> <p>Suppose the arbitrators had awarded that It. Howard and T. C. Howard should pay the respective accounts against them in their private capacities, no judgment could be entered on such an award.</p> <p>Suppose the arbitrators had injected these accounts against J. H, It. II, and T. C. II. would their injection be oblig’atoi'y on the administrator, and px'event him from suing at law? in short, who were the parties to the suit? B. H. and T. C. H. surviving*partners, against C. A. W, administrator of A. TV. They wcx*e the only pex’sons who could be affected by the suit.</p> <p>What will be the X’esult if your honours confirm this deci’cc? That you reverse a judgment which you have already affirmed in this very case, when you had the same powers to judge, and the same evidence before you, as you now have when sitting as a court of equity*</p>

<p>This was an appeal from the decree of the court of chancery. The bill filed by the present appellant on the 27th of October, 1791, states, that a certain Isaac Stull, the maternal uncle of the complainant, being seised in Ice of one half part of a tract of land, lying ip Frederick county, called “Resurvey on Whiskey,” did on the 1st of June, 1796, contract in writing with his brother John Stull, for the sale thereof; that the said John executed to the said Isaac certain bonds for the' purchase money; that the said Isaac soon after died, without executing a deed. That the said Isaac by his last will, dated 18th November, 1769, amongst other things, devised as follows: “I give and bequeath to my beloved nephew, Jlbi“jah Stvearingham, 150Í. current money, to be paid by “my brother John Stull to my brother-in-law Charles “Stvearingham, for the use of his son aforesaid, at or “before the last day of May next, he the said Charles giv“ing security for the payment of principal and interest “to his said son Mijah at the age of 21 years;” which said sum of 150Í. or any part of the principal or interest, hath never been paid to the complainants father, nor to the complainant. And in the said will is contained this, further clause: “I give and bequeath to my beloved brotli“er Jacob Stull, incase he should return within ten years, “from the date hereof, the sum of 2O0Í. current money, “as it becomes due from my brother John, after the last “of May next, the sums before mentioned in this my “will being the first payment due me from my said broth«er John; and in case my said brother Jacob should not ««return by the time aforesaid, I give and bequeath the ««200/. aforesaid to my nephews, Mijah Bwearingham and «John Stall, to be put to interest for their use until they ««cometo tlte ago of 21 years, with good security for ««the payment when they come to the age aforesaid.” — . That the said Jacob did not return within ten years, nor at any time thereafter, and that John Shill, the joint legatee, died a minor, unmarried, and before the age of 21 years.</p> <p>That the complainant came to the age of 21 years about 12 months since, and that no part of the said legacy of 200/. hath been ever paid in the life time of the said John Stull, the legatee, nor since his decease, to the complainant, the surviving legatee. That the executors in the will of the said Isaac never caused the same to be proved, nor accepted tbe trust therein. That the said father of the complainant, who was the trustee of the first legacy, being an easy man, &c. -altogether neglected to demand or receive the same, but left the complainant, when lie came to age, to prosecute his just right thereto; and the complainant accordingly hath caused the said will to be proved by the subscribing witnesses, and hath demanded payment of his legacies. That on the death of the said Isaac, the devisor, John Stull, his brother and heir at law, took possession of all the deceased’s real and personal estate, and the bonds and papers thereto belonging, and particularly the original contract, and the bonds, &c. for the payment of the purchase money.</p> <p>That the said John hath died seised of the said lands, without having paid any part of the said legacy, and hath left assets, &c. Having before his death by his will appointed the defendants his executors, &c. Prayer, that they account, &c. and for general relief, &c.</p> <p>Hanson, Chancellor, (February Term, 1794.)</p> <p>««It appears to tbe chancellor that there has been no decision in chancery applicable to the present case in all its points. It is however clear, that under all circumstances, the complainant is entitled to relief. It is clear that a contract was made between Isaac Stall and John Stull; that the latter was indebted to the former at the time of Ills death for the purchase money of the land contracted for; that part of the debt has been bequeathed to the complainant, and that if the complainant cannot obtain relief from tins court he is wholly without remedy. What -makes the case extraordinary is, that the present suit is for a legacy or legacies; and the defeadants are neither the executors or administrators of the testator, nor person claiming property charged with the payment of money. But as this court, when the ends of justice required it, hath always raised a constructive trust, and compelled the trustee to perform it, 80 the chancellor, in the present case, conceives that ho ought to construe John Stull as a trustee, in whose hands money was deposited for the benefit of the complainant, or rather that John Stull, having in his hands money of the testator, the will is to be considered as a declaration of the trust for which he was to hold or dispose of the same. John Stull then, being considered as trustee, the next question respects the amount of the money held for the complainant; and the chancellor conceives, that from the wording of the will, the period or periods when the legacy to the complainant, and John Stull, the nephew of the testator, was made payable, and the nature of the legacy itself, viz. a gross sum of money, admitting an easy division, and not an entire thing, one and iudividble, it was the intent that the 200?. should be divided into two equal parts, and that each legatee should receive bis share on arrival at full age; the complainant therefore is entitled to the principal sum of 100?. and to another principal sum of 150?.</p> <p>And here occurs the question, from what period or periods interest on these sums shall be calculated? And here the rule established by uniform decision is to govern. In no instance has the court of chancery in England, or this court since the revolution, given interest before filing of the bill, in the case of a suit brought against a real trustee appointed by deed or will, or a person holding on trust implied by equity, unless the trustee hath actually received interest; and even then it is not given under the name of interest; circumstances, as hath been said by an English chancellor, shall excuse a trustee from paying interest until the principal sum is ascertained by the court. But under the circumstances of this case the chancellor thinks the general rule of charging interest from the filing of the bill ought to prevail.</p> <p>It is therefore, this 26th day of February, 1794, adjudged, &c. that the defendants shall account with the complainant for the sum of 100?. current money, and the further sum of 150?. current money, which said sums have been in the hands of the said John Stull, in trust for the complainant; that they account with him likewise for the interest on the said sums from the 27th of October, 1791; that they also account with him for the personal estate of the said John Stull, or assets in their hands as executors aforesaid; and that the auditor of this court audit and state the account between the parties of the sums of money, interest thereon, and as-nets aforesaid, and return the same to this court, subject to the exceptions of either party, Ar. Ac.</p> <p>Tiie auditor reported the sum of 288?. 15s. 0¡f. indusling interest, to the 27th May 1794; also assets in hand amouuting to 876?. 14s. 0*<?. current money.</p> <p>Finar Decree, October 1794, for 2S3?. 15s. Oí?, current money, with interest from the 27th of May 1794, till paid.</p> <p>The complainant appealed to the court of appeals»</p>

Appear from a decree of the court of chancery (Ks-missing the biil of complaint. Held: that a recital in a deed that the party had given a borní, is sufficient evidence of that fact; that it is. a confession of the party himself; and stronger than a verbal confession, being under his hand and seal. The parol evidence in this case strongly corroborates the written evidence produced.

This was an action of Trespass q, c.f. The general issue pleaded. The defendant, by his counsel, objected to the same being read in evidence to the jury; because the said deed was not acknowledged by the said Robert Vass.

Petition for freedom. The petition states the petitioner to be descended from a free woman named Ann Joice.

Ejectment for pare of a tract of land called Brousley Hall, lying in Anne Arundel county. The plaintiff at the trial offered in evidence to the jury a grant in the year 1669, to Richard Wells, for the tract of land called Brousley Hall. He then proved by a witness that he knew Benjamin Lane upwards of 45 years ago; that he lived and died on Brousley Hall.

<p>Ejectment for a tract of land called Toivnldll, lying in Anne Arundel county, brought for the use and benefit of Caleb Steuart, who had purchased the land, &c.</p> <p>The plaintiff, at the trial, produced in evidence a grant for the tract of land mentioned in the declaration in this cause, and sundry mesne conveyances from the, grantee down to Daniel of Saint Thomas Jenifer. He also produced the will of the said Jenifer, dated the 15th of April, 1790, whereby he devised-the said land to his nephew, the lessor of the plaintiff, as follows, viz. .«Item, I further give and bequeath to my nephew, Doctor Daniel Jenifer, to him, and the heirs of his body lawful to be begotten, for ever, all im lands in Charles county, two lots of land at the Warm Springs, and thirty acres of woodland in the vicinity thereof; mil also all the remainder of .my estate, after debts and legacies are paid. And in order that they may the readier be discharged, I hereby direct, and my will is, that my executors, or the survivor of them, (and in case of both their deaths the chancellor to appoint a person) to sell and dispose of all my lands in Anne Arundel county, my share in the Baltimore Iron Works,” &c. &c. «And upon the money’s being by the purchasers paid, my executors to convey a title in fee simple, with general warranty.” «Lastly, I constitute and appoint my brother Daniel Jenifer, ami. Doctor Daniel Jenifer, my executors of this my last will and testament,” &c.</p> <p>He also produced evidence, that the land for which this ejectment was brought was sold, under the said will, by Doctor Daniel Jenifer, the lessor of the plaintiff, as surviving executor of the testator, to Caleb Steuart, for whose use and benefit this action was brought.</p>

<p>Error to Charles county court. It was an action of assumpsit, brought by the present defendant in error, for state certificates. The declaration, (first count) stated, «that whereas thesaid Beane, on the 16th day of July 1787, at Charles county aforesaid, was indebted to the said Middleton in the sum of 801. 18s< 0d. current money, for so much money by the said B. before that time had and received to the use of the said Middleton; and being so indebted, assumed,” &c. The second count, «And whereas a certain John Glassgotv, by virtue of letters testamentary granted to him on, See. on the estate of his deceased son, W. Gr. became entitled to receive from the State of Maryland certificates for the sum of 80Í. 18s. 9d, and afterwards* to wit, at, &c. on, &c. he authorised and empowered the said Beane to receive and pay the same to the said Middleton; and the said B. by virtue of the authority aforesaid, actually received two certificates of the value of 801. 18s. 9d. current money, to wit, one of, See. and one other of, &c. and so having received the same, he afterwards to wit, on, &c. at, &c. then and there assumed upon himself, and promised the said Middleton that he would well and truly content and pay the said two certificates of the value aforesaid, when afterwards he should be thereunto requested; Nevertheless,” &c.</p> <p>The action was brought in the county court to .Tune term 1788, at which term the defendant appeared by his counsel and imparled.</p> <p>September term, 1788, rule on the plaintiff to file his declaration at the nest term.</p> <p>'April term, 1789, rule declaration extended to the next term,</p> <p>June term, 1789, rule declaration further extended to the next term,</p> <p>September term, 1789, declaration filed, and a rule laid on the defendant to plead at that term. The defendant made default, and the county court entered judgment for the sum of 46/, 18s. 5d, current money, damages, and costs of suit. To reverse which judgment the writ of error in this case was brought, and the cause was argued at October term, 1795, by Pinkney for the plaintiff in error, and by Key fox* the defendant in error.</p> <p>The declaration in this case contains two counts; the first for money had and received, and the other to receive andrpay certificates. The county court, on the neglect of the defendant in that court to plead, assessed entire damages.</p> <p>First ground or objection. Th at-non constat on the face of the declaration, whether those certificates were to be paid to Middleton as an agent, or for his own nse — certainly ambiguous; the word pay is no more than deliver. If the certificates were properly transferred it would not have «given the power. If they were to be paid to Middleton as an agent, he cannot recover. Principles in pleading, 5 Com. Dig. 27; Co. Lit, 303 a. A count ought to have certainty and truth.</p> <p>If a declaration by A. B. shews a title cnidam A. B, it cannot be intended to be the plaintiff, 5 Com. Dig. 2 Lev, 207; and yet it clearly must mean the plaintiff. If it charges quod predict A. B. deposuit, where two of tliQ same name are mentioned before, it shall not be intended to be the defendant — 5 Coni. Big. 27. Cro. Ela. 267. The reason given in Cro. Jilin. 267, is “every declaration ought to be certain, and shall‘not be taken by intendment.” It ought to shew plainly and certainly all circumstances material for the maintenance of the action; for if there are two intendments, it shall be taken most strongly against the plaintiff. S Com. Big. 32; Cites FI. Com. 202 fb.J</p> <p>The plaintiff, or demandant, in his declaration or count, ought to entitle himself to the action; for he is to recover by the validity of his own title, and not by the weakness of the defendants. 5 Com. Big, 37; Cites Vangh. 8, 58.</p> <p>The conclusion from these premises is, that the right of action ought to be certainly set out in the declaration; and 1liat if the statement of right is liable to two inlcmlmcntf!, ope for, the other against the plaintiff, .he must fail.</p> <p>Seco.vo grotto or objection. Admitting that the certificates were to he delivered by the authority to the •plaintiff, yet he cannot support this suit for two reasons.</p> <p>1st. Because there is no express assumpsit on the part of the defendant to deliver them to him; and</p> <p>2d. Because if there was, the plaintiff Was a stranger to the consideration, as well as to the promise.</p> <p>lot Reason. Yon cannot support assumpsit for the delivery of a collateral thing, (not money) without a special or an express assumpsit. Indebitatus assumpsit will not lie for certificates; it will not lie for stock; it will lie for notiiing but money; 1 Esp. 99; 5 Burr. 2589; 2 Iilk. Rep. 684.</p> <p>Even if the original owner of the certificates had brought this suit, he must have declared, that the defendant promised, that when ho should receive them he would pay them over in pursuance of authority; which is not alleged here. Mad it been money, indebitatus assumpsit might have laid for it; but being certificates, without laying a promise to act according to the authority, he could not have recovered.</p> <p>I admit,, however, that proceeding to receive under the power would have been evidence of an antecedent promise; hut, then it must have been alleged in the declaration, which here, is not done.</p> <p>This count is indebitatus assumpsit, and there is no promise alleged at the time of receiving the authority. The promise stated is air implied one from the authority and receipt; and the court cannot infer an express promise, unless there had been a verdict. 5 Com. 144; Hard. 366.</p> <p>This action Is founded on contract, and yet no contract is alleged. It is true that facts are stated from which a contract might well be implied; but it being to do a collateral act, a special assumpsit must be laid. The defendant received an authority from the plaintiff to receive certificates and pay to the plaintiff; but it is not alleged that he promised to execute that power as' conferred upon him; which -, as special assumpsit) would have supported the action perhaps in favour of some person. The defendant is not alleged to have made any agreement to pay over to the plaintiff. The contract is wholly left to be implied, which cannot be; for indebitatus assumpsit will not lie for certificates. It may appear on the face of the declaration that certificates were received for the plaintiff’s use. What then? Can you support indebitatus assumpsit for certificates had and received? And yet the court must determine so before this suit is supported The amount of it is, that indebitatus assumpsit for certificates had and received, is good; for no special assumpsitiis alleged. The promise stated is after the certificates are received, and is only the general implied promise from the circumstances.</p> <p>2d. Season. The plaintiff • is a stranger to the contract; even supposing there had been an express one. No other consideration but the deceit upon the party giving tbe power, if not executed, after in part executed. Gro,</p> <p>Who gave tbe power? whatever contract there was is stated to have been between the defendant and Glassgow. The plaintiff was no party to it in any shape.</p> <p>1 Stra. 502. . In assumpsit, Crow,, the plaintiff, declares, that whereas one John Hardy was indebted to the- plaintiff in 70?. upon a promise between this Hardy, and tbe. defendant Sogers, it was agreed, that tbe defendant should pay tbe plaintiff’s debt of 70?. for a sufficient consideration, which the case states, i, e. building a house; and then the declaration avers, that in consideration thereof the defendant promised to the plaintiff to pay him tbe 70?. which Hardy owed him. The defendant demurred, kc. It was held that the plaintiff was a stranger to the consideration, and judgment was given for the defendant. Esp. 105, 106. ' Cro. Jac. 668.</p> <p>Lastly, if the plaintiff had brought the certificates, and the defendant appointed to receive them for his use, which is the only ground upon which the suit is maintainable, the moment his agent did receive for bis benefit, the property vested in the plaintiff, and he ought then to have brought trover.</p> <p>I.think I have shewn that one of the counts in this declaration is substantially defective, and it is certain that a judgment by default cures nothing.</p> <p>Last ground or objection. Whether, as there is one good count, that will support the judgment which is general. If this was the case of a verdict and entire damages, by the law of England, the judgment would be erroneous, and there must be a venire de novo. Bat it is the case of a judgment by default, entire damages assessed by the court, and final judgment thereon; and if erroneous, there must be a complete reversal, for it cannot be set right; for the judgment by default is erroneous, and that cannot be rectified. In assumpsit, a judgment by default, or nil dicit, is, that the plaintiff recover his damages by reason of the premises, and goes to every count in the declaration; nor can the inquest afterwards sever the damages; for that must pursue the judgment, which is entire; so that the defect (if it is one) is incurable.</p> <p>.Where there is an entire judgment on two counts, one of which is bad, it is erroneous, 1 Ventr. 27, (21 Car. 2d.) Moore & Lewis. Dougl. 377, 730, 731. Lord Mansfield. The rule is now settled. He complains of its absurdity and inconvenience, but holds it to be obligatory.</p> <p>It is the law of England, as far back as the colonization, and if down to the present time confirmed and sanctioned by uninterrupted usage and a series of decisions, it is the law here. Msurdihj is no argument against it if it is law, nor its inconvenience.</p> <p>The exemption of a devisee from the claims of creditors was absurd and iniquitous, and yet neither law nor equity could relieve! Collateral warranties are stupid, yet they were obligatory until the statute interfered. In chancery, a wife is not dowable of an equitable interest, and yet the husband shall have curtesy of it. This is the rule in England, and so here. Lord ILardwicke complains of it as absnrd-and unjust; yet holds himself bound; and our chancellor the same. The scolloping of a deed of bargain and sale is nonsense; yet it is necessary; because it was so by the common law. The whole doctrine as to the construction of wills is nonsense.</p> <p>But more applicable instances may be produced. Until the act of 1785, the merits of causes were destroyed by formal defects in proceedings. It was absurd, and yet only the legislature could relieve.</p> <p>A man of plain sense would be shocked at the absurdity of one third of the old common law, which has been since changed by acts of parliament, or acts of assembly; yet it was law till it was altered.</p> <p>The law is an artificial system, which must not he judged of by the ordinary rules of reason. It is a technical science; any known system is better than none. It is of importance to society that the rules of justice should not he fluctuating; that they should be fixed, and settled, and permanent.</p> <p>This does not only apply to great rules of property, font to the rules of pleading, which (Littleton sect. 534) Lord Goke thought of high importance; and so did Lord Mansfield in 1 Burr. 316.</p> <p>The boundaries of actions; the manner in which they shall be conducted; the forms of declarations and pleadings; the effects of judgments and verdicts; are of deep concern to the administration of justice; and it is better that they should continue fixed, though they may produce partial inconvenience, than that all form should be sacrificed, and lawyers be unable to ascertain what grounds they stand upon. Uncertainty is fatal to any establishment; it is the bane of science, and peculiarly unbecoming in judicial proceedings. Look to the consequences of rejecting this rule, than which none is better settled. Every other rule of pleading (which may be thought inconvenient) is liable to the same rejection. .Won cst factum was formerly used as a dilatory plea; yet the court could not require it to be verified by affidavit. On a bond with penalty, the jury could, not ascertain the sum due before the act of 1785, ch. 80. The rule was absurd; why was it not abolished without legislative aid? At common law you could only assign one breach on a bond for performance of covenants. Why did it require an act of parliament to provide against the absurdity? The doctrine of debit and detinet is nonsense, and useless nonsense; yet it is stubborn law. Why not reject all these rules, and a thousand others, as well as the present, for they are no better established; they depend on the common law, and English decisions. It is hard that when a man lias brought debt,, and filed his bond, and taken judgment by confession, it shall be reversed for want of a declaration; yet it is done every day. Why not admit specific articles to he recovered in an action for money liad and received? Ste-</p> <p>in short, this rule is of the common law, and is to be found in every book of pleading in the office. There is no local reason against the adoption of it. It is hard to find a local reason which ought to influence the forms of pleading. The rules of pleading have been always held to be law here.</p> <p>Again: There is no absurdity in the rule in many cases,, and particularly in this. •</p> <p>Suppose the several counts apply to different promise®;? and different sums, as they frequently do; and entire damages are given, how can you never the damages so as to reject only those awarded on the hail count?</p> <p>Again: In this case the 1st count is for money had and received, and the 2d count for certificates. That both counts are intendecl'to apply to the certificates is evident. The same sum in each count, and the special count is that to which vie look for the nature of the case. The 2d count is defective, and the plaintiff ought not to recover upon it; and the 1st count does not suit his case, and therefore ought not to recover on that; for lie cannot recover certificates on a count for money had and received — Esp. 99. Bo that if he recovers in this case, it is upon a declaration in which one count is wholly vitious, and the other, though good in its form, is wholly inapplicable to his claim. Suppose it had been tried on non assumpsit; he could not have given evidence, on the 1 si count, and of course must have taken-his verdict on the 2d count, which is defective, and shews no title. 'Would not his judgment have been arrested op reversed?</p> <p>In short, the rule is not absurd; and if it is, as I find it to be law, so I argue upon it. I know not where to look for the law but in the books, and when I find it there, take it for granted it is so. I do not presume to judge of its propriety; I only ask if it be law.</p> <p>The case was continued until this term, (October 1797) when</p>

Appear from Washington county court. This is the same case reported ante, page 70. It was an action of replevin, brought by the present appellant, wherein the defendant, the present appellee, avowed a distress for 35l. current money, being for half a year’s rent in arrear, ending on the 1st of July, 1794, under and in virtue of an indenture of demise between them made, &c„.

As the case appears to be sufficiently stated in the arguments of the counsel concerned on the appeal, in the court of appeals, the Reporters have omitted to give any other statement» Hanson, chancellor, (May term 1794) gave his opinion, that the court of chancery might compel the defendants to perform the contract stated in the bilí, considering the price to be paid for the land to be Intended to be paid or discounted in specie; that as nothing appeared in the cause to…

Action of replevin, removed by certiorari from Harfe rd comity court. The, case stated for. the opinion of the court, admitted ihe.t Samnd Griffith, on the 12th of Jaim raw 1794, made and published in writing, his last will and testament, agreeably to law, containing amongst others, the following devise: «Fourthly.

This was an action of debt by a devisee, for rent due cm a lease, against a surviving lessee. [See the form of the declaration in 1 Harris9s… Held: at least as lately as the case in 2. Mod. 264, that case indisputably proves; for If after the lessor had done an act which avoided, the lease and reinstated him in his old estate, he could have still supported an action for rent in arrear, it would have been of no consequence to have pleaded, or to have shewn that he had made a…

This was a special action on the case for the non-performance of a parol agreement to take care of, and to return, negro 'slaves who had been hired by the plaintiff to the defendant.

' It wari suggested, on the part of the defendant in error, that the redord was diminished^' for that the cleric of the comity court, instead of entering the'judgnfen't oii the awai'd in the proper form for'a return of the property, &c« had'entered it for the sum of money awarded.

, This suit was brought to October terra 1796, and the issues being joined on the pleas of non assumpsit and limitations, the cause was put under notice of trial at the preceding term.

The bill in this case, (filed on the 24th of stated, that the complainant, some time inJ0i December 1796, entered into a copartner®!]! Jtin and MTCenna ami Jacob -Franks Levy, %or A., pose of a trading voyage to the West índlIaíAm the'ri joint account. It. was stipulated that-the complainant should go to the West Indies as supercarglL JnUT^i-anr owner, and superintend the sales, and aleo jachase a. return cargo.

This was a petition for freedom; the petitioner claiming to be descended from Jinn Joice, a free woman.

<p>Fieri Facias issued the 16th May 1798, upon a judgment rendered in this court, directed to the sheriff of Washington county.</p> <p>The fi. fa. was received by ‘the sheriff, and by hira returned ‘«part of the money made, and laid as per schedule on the 28th of September, 1798, and as to the residue it remained unsold” by him. The defendant produced a certificate that a writ of error had issued for the removal qf the proceedings to the court, of appeal?; the wit of error was produced to the clerk of the general court on the 1st of October 1798, and hears date ¿]ie js¿ 0f October 1798. The writ of error bond was Med the same day, and security approved.</p> <p>On motion of the attorney for the plaintiff, the general court directed a writ of venditioni exponas to issue.</p>

<p>Ejectment for a tract of land called Brashears’ Mea., daw, lying in Prince-George’s comity. General defence was taken, non cut. and issue. Verdict of guilty, and judgment for the plaintiff for possession and costs.</p> <p>BITE OB EXCEPTIONS.</p> <p>The plaintiff, in this case, to suppoi’t his title, offered in evidence to the jury a certificate of survey of a tract of land called Brashears’ Meadow, containing 200 acres, being the land mentioned in the declaration, made for Samuel Brashears, dated the 5th of January 1724. He also produced & patent to the said Samuel Brashears for the said land, dated the 10th of June 1727.</p> <p>The plaintiff also proved, that Samuel, the patentee, had two sons, Samuel his eldest, and Robert, father to the lessor of the plaintiff.</p> <p>The plaintiff then produced to the court a paper purporting to he a deed from Samuel Brashears, the patentee, to Robert Brashears, above named, bearing date the 11th ■of October, 1726, and is as follows to wit:</p> <p>“To ail Christian Peofxe to whom these presents shall come; I, Samuel Brashears, senior, of Prince-George’s county, in the Province of Maryland, carpenter, send greeting. Know xe, that I the said Samuel Bra-shears, for and in consideration of the love, good will and affection, which I do bear to my loving and dutiful son Robert Brashears, of the county and province aforesaid. planter, and for other good causes and valuable considerations me hereunto moving, have given and granted, and by these presents do fully, freely, clearly and absolutely, give and grant unto him the said Robert Brashears, and his heir or heirs by him lawfully begotten, all that tract or parcel of land called Brashears’ Meadow, situate, lying and being, in Prince-George’s county aforesaid, and beginning,” &c. &c. “containing, and laid out for, two hundred acres of land, more or less; together with all rights, titles, interests, claims and demands whatsoever, which I now have, or which any or either of my heirs, executors, administrators or assigns, shall or may hereafter have, of, to or in, the said granted premises, or any part thereof; to have and to hold the aforesaid granted lands and premises unto the said Robert Brashears, and his heirs, begotten as aforesaid, and to the only proper use and behoof of him the said Robert Brashears, and his heir or heirs, lawfully begotten, forever. And I, the said Samuel Brashears, for myself, my heirs,” &c. — then follows a general warranty of the land — “to the said Robert Brashears, and his heir or heirs by him lawfully begotten as aforesaid, against him the said Samuel Brashears, or any person claiming by, from, or under him, or any or either of his heirs,” &c. And a proviso in case of failure of heirs of the said Robert Brashears, then to the heirs of the said Samuel Brashears, Sec. “In witness whereof I have hereunto set my hand and seal this 11th day of October 1726. Samtjex Brashears, (x. s.)</p> <p>“Signed, sealed and delivered, in the presence } of us, Jos. Bext, Jno. Magruder.” j</p> <p>The said instrument of writing was thus acknowledged: “ October the 11th, 1726; Prince George’s county, set came Samuel Brashears, party to the within written deed, and Jhm his wife, and acknowledged the contents of the said deed, and every part thereof, according to law, viz. she the said Jinn did freely and voluntarily, and of her own accord, relinquish all her right, title and dower, that shall or may for the future, become due to her in any part or parcel of the within granted lands and premises, being legally examined by us.</p> <p>Jos. Bext.</p> <p>Jno. Magruder.”</p> <p>The above deed was certified to be recorded on the 22d of November 1726, in the land records of Prince George’s county.</p> <p>The plaintiff also offered evidence to prove the execution, acknowledgment and delivery, of the said instrument of writing, by the said Samvel Brashears, and possession of the lands therein mentioned by Robert Bra-shears, the grantee, under and in virtue of the said instrument of writing, to the year 1742.</p> <p>The defendant prayed the opinion of the court, and their direction to the jury, that the said paper, purporting to be a deed from Samvel Brashears, the patentee, to Robert Brashears, 11re father of the lessor of the plaintiff, was not competent in law to pass such an estate to the said Robert Brashears as would enable the plaintiff, claiming under the heir in tail of the said Robert, to support this action.</p>

The case was as follows, vis. John Lecompte, in his life-time, was seised in fee of certain lands in Dorchester county, and by his will divided his lands, devising one part to his son John for life, and the other part to his son James for life, and died intestate as to the fee, after the 1st of January i 788. John, the tenant for life, died some time after, leaving children., Colston purchased the right of James to that part which had been devised to.

Ahpeae from Kent county court. It was an action on the case for a wager won on the election of a sheriff; The. declaration states, «that whereas by the constitution and form oí government of the state of Maryland, among other things is established, that sheriffs shall be elected in each county, by ballot, every third year; that is to say, two persons for the office of sheriff for each county, the one of whom having the majority of votes, or if both have an equal number,…

<p>Ejectment on seven separate demises for two tracts "of land, one called Enlargement, and the oilier called Brown*s adventure, lying in Baltimore county. The defendants took defence ou warrant, and plots were made and returned.</p> <p>1. The plaintiff at the trial, to support the issue on ■Ids part, produced a certificate of survey, made for and In the name of John Israel, bearing date the 10th of January 1720. for a tract of land called <>-Tlie Enlargement/* lying in Baltimore county, containing 100 acres of land, 'more or less. Also a grant to the said John Israel„ dated the 10th of July 1724, for the said land called The Enlargement. Also the will of the said John Israel, dated the 13th of J anuary i 723, devising the said land to his sons John L. Gilbert T» and Bobert Israel, which will was proved by the subscribing witnesses thereto on the Htb. of March 1723. S3e also produced several mesne conveyances from the, dev isees of the said. John Israel, down to the lessors of the plaintiff.</p> <p>The defendants proved that the said John Israel, for whom the. said rercificaie of survey was made, died before the issuing of the patent aforesaid in his name; and thereupon prayed the direction of the court to the jury, that the said patent was void; and that the lessors of the plaintiff, having produced the said certifícate and patent, and claiming title und-r the same, that the jury could not presume a patent had Issued to the devisees of the said John Israel for the said land.</p> <p>to this objection answered, that John Israel having acquired an equitable interest in the latid under the ra*ti3-cate of survey, the patent related to the date of the rejtificate, and passed tbe title from that time; and moreover, supposing the patent void, the jury after the great lapse of time which had intervened, ought to presume a grant issued to the children and devisees of John Israel.</p> <p>replied, that if the. patent was void, as they contended, then being an absolute nullity it could not have relation nor any operation. That presumptions were made of the existence of facts not appearing’,— not that facts existed different from those actually shewed by the plaintiff to have existed. And of that opinion was Duvaix J.</p> <p>But Chase, Vh.J. and Done, J. were of opinion, and directed the jury, that John Israel acquired an equitable interest in the land called The Enlargement, in virtue of his certificate Of survey; which equitable interest was transmissible by last will. And John Israel having’ devised the said land, among other lands, to his three sons, as tenants in common in fee, and the plaintiff having deduced and shewn a tide in the said land from the devisees of the said Israel, by sundry mesne conveyances, the jury may and ought to presume a patent issued to the sons of the said John Israel, from the great length of time which has elapsed since the date of the said certificate , if' the jury find the possession of the said land lias been held under the said title. The defendants excepted.</p> <p>2. The plaintiff offered in evidence to the jury, a certificate of survey of a tract of íand called The Enlargement, (before, mentioned,) described as lying’ on thei north side of Fatapsco River, arid on a run called Davis’s Run, beginning, &c. He also produced and offered in evidence to tbe jury, the plots, and surveyor’s explanations accompanying the same, made and returned iii Ibis cause.</p> <p>Whereupon the defendants objected, that as the plaintiff had named in his declaration the tract of land for which he has brought his ejectment, “Enlargement,” he cannot give in evidence the said certificate of survey made for the tract of land called “The Enlargement.”</p> <p>contended, that the plaintiff’s proof must correspond with his declaration; that lie had not described the land in the declaration otherwise than by the name of “Enlargementthere were no courses or quantity of acres to show its identity. In the certificate of survey the land is called “The EnlargementThat there was no lease confessed but that laid in the declaration. It is there,said that the demise is for the land called Enlargement, not for The Enlargement. He can produce certificates of surveys for lands in the same county, some called Enlargement} and others The Mnlargemenh</p> <p>The samé precision is not required here as in cases where nnl tiel record may be pleaded. The plots in this case are a part of the plaintiff’s declaration, and shew the courses of the tract of land for whicli the ejectment is brought, and therefore reduced the claim of the plaintiff to'sufficient certaíiíty. A recovery in this, casé can he pleaded iii bar, by reference to the plots, with an averment, as in any other case. There is a great difference between defence upon warrant and general defenecí where defence is taken upon warrant the plots specify and designate the plaintiff’s pretensions, afi’d arfe apart of Ms declaration, ánd there, is sufficient certainty to enablfe the sheriff to give'possession.</p> <p>Chase, Oh. J. .However unwilling the ¿hurí fetén to objections which prevent a trial of the merits, they cannot but consider ike variance in this case as lathi.</p> <p>If you sue for land by name, you must name it literally. You might have sued for it by description, arid then the name would have been unimportant; but as the suit is for land by name only, .and you have not shewn a title for the land na oed in the declaration, the plaintiff must fail.</p> <p>The plots arc part of the plaintiff’s declaration, so far as to show location.</p> <p>Tlie couht'are óf opinidn that the certificate of survey of the trhet of land called The Enlargement, cannot be given in evidence to the jury.</p> <p>, Tlie plaintiff excepted. There tvas no application made to the court for leave to amend the declaration, and it Seemed to be tlie opinion of the court, that the declaration was not amendable, the act of 1785, eh. 80, not extend* ing to actions of ejectment.</p> <p>Verdict and judgment for the defendant. The plain* tiff appealed to the court of appeals'.</p> <p>(on the last hill of exceptions, being the only one before tlie court of appeals,) contended, that admitting the certificate of survey offered in evidence in the general court described the land by the name of The Enlargement, and the declaration described by the name of Enlargement, yet the subsequent averment on the plots, which are admitted to he the pleading:; in the cause, and a part of the plaintiff’s declaration, cured any defect as to the description in the. declaration. That Enlargement” and The Enlargement,” were the same in grammatical construction, and common language. That there was a great difference between defence taken generally, and that taken upon warrant. In the first the party might be confined to his declaration, hut in the latter, where the lands are located and designated, upon the plots, the defendant is made acquainted with the name and description of the land claimed by the plaintiff in the action, and is prepared to defend the. case, and is not at the trial taken by surprise. The plaintiff, by his pretensions on the plots, brings out his case more fully, as is usual in replications. It will not be denied that if an ejectment is brought for a tract of land by name, without further specification, it is good. In this case sufficient certainty appears to enable the sheriff to deliver possession.</p> <p>contended, that the court of appeals were confined to the bill of exceptions, by which it appeared that the certificate of survey offered in evidence by the plaintiff-below, was not the original certificate, but a copy of a certificate not under the seal of the office, and therefore should not have been offered, and could not he received in evidence. That admitting it had been under seal, it did not support the plaintiff’s declaration, but varied from it, being for a different tract of land. 1 hat the party’s replication ought to support the declaration. The plots show that two tracts ofland are located thereon, one by the name of United Friendship, and the other by the name of The United Friendship, and why might there not be also two tracts of land one by the name of Enlargement, and the other by the name of The Enlargement? There must he certainty enough to enable the sheriff to deliver possession. Suppose in this case there had been a general verdict for the plaintiff, the judgment would have been that he recover his term in the tract ofland mentioned in the declaration called Enlargement, and the writ of possession would have directed the sheriff to deliver possession of* the land by that name» Suppose there were two tracts in the county one called Enlargement, and the other The Enlargement, could the sheriff under the writ deliver possession of the latter tract?</p>

<p>Attachment on warrant under the act of 1795, ch. 56. The warrant was from tiie Hon. Gabriel Duvall, one of the judges of this court, and is as follows, viz.</p> <p>Maryland, sc. Whereas William Smith of Boston, in the county of Suffolk, and Commonwealth of Massachusetts, merchant, on the 15th day of November 1797, before Samuel Barrett, Esquire, one of the judges of the court of common pleas in and for the'county of Suffolk, in the Commonwealth of Massachusetts, made oath according to the act of the general assembly of the state of Maryland in such case made and provided, that James Greenleaf of tbe city of Philadelphia, in the Commonwealth of Pennsylvania, Esquire, is bona-fide indebted to Mm the said William Smith, in the sum of eighteen thousand dollars current money of the United States, (equal in value to the sum of 6.750Z. current money of the state of Maryland,) over and above all discounts: And whereas the said William Smith also then and there produced to the said judge the promissory notes by which the said James Greenleaf is so indebted, and which are hereunto annexed: And whereas also the said William Smith further then and there made oath as aforesaid, that he is credibly informed, and verily believes, that the said James Greenleaf is not a citizen of the state of Maryland, and that he doth not reside therein. All which appears by the certificate under the hand and seal of the said Samuel Barrett, and the certificate of the governor of the Commonwealth of Massachusetts, under the public seal thereof hereunto annexed. These abb thebeegre, in tita name of the state of Maryland, to authorise you to issue an attachment or attachments, in the name of the said William Smith, against the lands and tenements, goods, chattels and credits, of the said James Greenleef; he the said William Smith, complying with the requisites of the act of assembly in that case made and provided; and for so doing this shall be your suilicient warrant. Glvon under my hand and seal this second day of June, in the year of our. Lord one thousand seven hundred and ninety eight.</p> <p>G. Bitv Aim, (i. s.)</p> <p>To John Giyhm, Esquire, clei’k of the General</p> <p>Court íbr the western shore of Maryland.’-’.</p> <p>The writ of attachment was' returned by the sheriff. Laid as per schedule, Ac. to October term, 1798, and by agreement of the parties, (the (lefondanf having been permittod to appear,) the case was conünued until this term, when</p> <p>moved to quash the writ of attachment and the return. " He said, that on the 2d of June 1798, his honour Judge Dwrail, by liis warrant, directedthe clerk of this court to issue the writ of attachment in this case under the act of 1795, eh. 56, which act, lie contended,' does not authorise the writ as issued. The causes of action appear to he three promissory notes, one drawn by James Greenleaf, payable to and endorsed by Daniel Greenleaf, for $ 10,0.00; another drawn by James Green leaf pay able to and endorsed by 'Daniel Greenleaf, for $ 2000; and the other drawn by James and Daniel Greenleaf, payable to and endorsed by T, Danis, for $6000. -''here is no proof that William Smith, the plaintiff, is entitled to receive the nioney. The endorsements on the notes are in blank, and the hands writing of neither the drawers nor endorsers are proved. That ’the endorsements in blank are riot sufficient, they should he filled up, and the hand writing of the payee must be proved, before the attachment could bd awarded.</p> <p>Admitting this to be sufficiently proved, yet the affidavit before Samuel Barrett, a judge of the court of common plea’s in Massachusetts, is not sufficient. If the affidavit is made out of the state it ought to be before a judge of the general or superior court of the state where it is made, and not before a judge of an inferior court. Mr. Barreit. is a judge of a county court, and not a judge of the state. He is only a judge of a district within the state.’ The act of assembly says the oath shall be made “before any judge of any other of the United States,” thereby meaning that it shall be taken before a judge of the highest court of the state.</p> <p>contended, that the oath of tile party was the principal ground on which the attachment issued.’ That it was only necessary to produce the instruments of writing themselves, upon which the claim was’foiftwled; arid an' officer, when applied to for a warrant, could not require more proof of the claim than was requisite on a-writ of inquiry of damages. It was not necessary to prove the hand writing. The oath was only required to shew that no payments had been made, or if made that they were credited. An endorsement may bo filled up at any time, and the judge was not bound to reject the notes because the blanks were not filled up. The production of the notes to him, with proof of the party being indebted, was good evidence under the act of assembly for the warrant to issue. The law did not contemplate that the party was to go into every kind of proof which is required to substantiate a claim upon a trial before a jury.</p> <p>As to the second objection, the judge of a particular district is a judge of the state, appointed for Ihe particular district in which he is to act. Every officer is a state officer, though appointed to act in a subaltern station. Every justice of the peace is a justice of "the state lor the. particular county in which he resides.</p> <p>But this objection comes too late, as the person who issued the warrant for the attachment is tiie sole and exclusive judge of tiie sufficiency of the proof.</p> <p>No objection could be made in this case until the process was returned. The person who directed the attachment must exercise his judgment. But when the process is returned, an inquiry can be had whether the' evidence upon which it issued was sufficient to warrant the procedure. It may not be necessary to require tiie same proof which would he necessary on a trial, to justify the ordering the attachment; but before a condemnation can be obtained upon the attachment, tiie proof must be required. ’ Stronger proof is necessary to ’obtain a judgment of condemnation than is requisite to obtain an attachment.</p> <p>As to the other objection, that the affidavit was not made before a proper person. — -If tiie act uf 1795 had oniy said that the affidavit must be before a judge of the state of Maryland, it would be clear’ that no judge of tiie county court, or justice of the peace, could have been intended or authorised by the act. The láw baying said it must he done “before any judge of any other of tiie United States,” means that it must be time before ajudgaaif tiie highest grade ia the state, and not done before a judge of a district orcounj</p> <p>A third objection may be made — The^hj^ffor of Mas-»* a gatfmsetts oniy certifies that the person wfio^tqokydih?*-» affidavit is a justice of the court of common ?or"'t!ie county of Suffolk — he does not certify, i| e langustcg^í,’required by the act of assembly, ‘‘that hath authority'to administer such oath,” this comdT is not bound to take notice of the powera of®el|treHt upon his appointment. • ‘</p> <p>Chase, Ch. J. Three objections have been made in this case why condemnation should not be awarded on the attachment.</p> <p>The first objection. That it did not appear by (he promissory notes that Smith, the plaintiff, was entitled to receive the money.</p> <p>The'court think the evidence was sufficient to authorise the issuing the attachment. But proof must be. mudo of the hand writing of tho first endorser, and the endorsement must be filled up to entitle the plaintiff to a judgment of condemnation.</p> <p>The second objection. That the judge who took the affidavit was a judge of a county court, and not a judge of the state.</p> <p>The court think that the act does not tie it up to a judge of any particular court; and that a judge of any court is sufficient — a judge of any court of the state is a judge of the state.</p> <p>The third objection, as to the certificate of the governor. It does appear to the.court that the certificate is sufficient. • The governor certifies to the affidavit of the justice of the court of common pleas, “that full faith and credit is to be given to bis attestation.” He has attested that Smith was sworn, and this shows that he could administer an oath. ■</p> <p>ICey. Previous to the issuing the attachment in this-ease, viz. on the 30th of September 1796, the property* upon which it has been laid, had been transferred by the defendant to George Simpson and others. This being the case judgment of condemnation cannot be entered.</p> <p>contended, that the act of 1753, ch. 36, made the conveyance void, the requisites of that act not having been complied with.</p>

Petition for freedom, the petitioner claiming to b® descended from a free woman named Jinn Joice. Bixxs or Exceptions. 1. Held: used and treated, as a slave, and that her issue have been held as slaves ever since, that then they must find a verdict for the defendant.” Chase, CIi. J. The court ai*e of opinion, that they ought not to give the direction as prayed by the defend-' ant’s counsel; and' do therefore refuse to give the said direction to the jury.

The writ of capias ad respondendum which issued in this case, was served on the defendant during his attendance on Calvert county court as a juryman. Upon affidavits made and filed,

<p>Ejectment for three tracts of land, the one called Howard’s Inheritance Resurveyed, another called Water Oak Ridge, and the third called Roseland, all lying in Baltimore county.</p> <p>The plaintiff, to make title to Water Oak Ridge, offered in evidence a common warrant issued to Cornelius Howard, father of the lessor of the plaintiff, dated the 4th of August 1752; a certificate of survey in virtue of the said warrant made the 30th of January 1753, and a patent on the said certificate, dated the 6th of March 1753.</p> <p>The defendant took defence for a tract of land called Wester Ogle; and to make out bis title, offered evidence of a special warrant of resurvey, dated the 28th of November 1751, in the name of John Medcalf, which was renewed the 13th of May 1752; and also renewed the 18th of November 1752, for six months longer. A certificate 0f Slirvey made the 20th of January 1753, caveated by Cornelius Howard on the 21st of April 1753, caveat over-, ruled on the 17th of August 1753, and patent ordered to, issue. The certificate was assigned by Medcalf to William Lyon, on the 6th of August 1753, and a patent issued to Lyon on the 8th of February 1754. The composition money paid on the 28th of September 1753. The warrant of resurvcy had issued on a tract called Rich Level or Medcalf’s Addition. The patent was' for Wester Ogle.</p> <p>The plaintiff also offered evidence, that the patent last mentioned comprehended within its lines vacant land not contiguous to Rich Level, or Medcalf’s Addition, but which, though vacant, was separated from them by tracts of land granted before the issuing of the warrant of resurvey aforesaid, and that the said certificate or patent of Wester Ogle crossed the said elder surveys, to include the vacancy included in the patent of Water Oak Ridge, the land granted to Howard.</p> <p>The defendant prayed the direction of the court to the jury, thaf the title of the defendant to Wester Ogle afore-, • said, and $11 land vacant at the time of the execution of the warrant aforesaid, and included within the lines and ■boundaries thereof* commenced from the 20th of January 1753, so as to have a priority of title to the same v.a-. caney, which was included in Water Oak Ridge.</p> <p>When a patent issues, it gives title from the date of the certificate. This is admitted to be the general ruje of law. The question then is, whether the particular circumstances Of this case will prevent the relation of the pates,it hack to the date of the certificate. The rule of law dqes. not depend,on the principles of-relation, but is a general rule which operates on all conveyances, and is not co.nfin.ed to patents. The location of the warrant is the substantial part of the agreement between the state and the i$divi- • dual; it designates the land sold and purchased;; gives priority, and is superior in equity. The patent issues.on, the certificate returned, as a matter of course, and its date is not material. A special warrant is in its nature, a location of the land; but a common warrant is not* The certificate is the important part of the contract. The rules of the land office have fluctuated and varied; they have at times been dispensed with. The plaintiff’s certificate laid only two months in the office before a grant issued. The reason of the rule of relation was not to protect equitable titles; the rule was made to prevent mesne, conveyances, litigation, and the running into eh , der surveys, and taking up land not patented. All contiguous vacancy must be affected by a special warrant of resurvey, which operates as a location of the land taken up, especially if notice to the.ad verse party can he presumed. The plaintiff's counsel contend* that we shall not cross an elder survey to take up vacancy. The rule is not to run within the lines of an elder survey. The infringement of this rule affects Water Oak Midge as much as Wester Ogle. Relation is founded on fiction, and where a third person is interested, evidence may be produced to establish a fact which will make it necessary to disregard the fiction. For instance, though the signing of* the judgment relates back to the first day of the term* evidence may be given of the particular day on which the judgment was rendered. So in the case of a Latitat, the real day of issuing it may be averred. The rule of relation, as it respects conveyances, is founded in equity. The court of equity looks to the substance. An equitable title to land is not to be burthened with future' liens. The time of paying tlie composition money cannot he material, the. first payment will not prevent the relation. A contract on credit is not less equitable than a contract for cash. In cases of presentation and induction, the title commences from the presentation, and iiot the induction — -Sir W. Jones, 425,428. Where there are divers concurring acts, the last act shall relate to the first to complete a conveyance. As in the case of a feoffment of one acre, with an election in the feoffee to fix on the particular acre, when the acre is designated there will be relation hack to the time of the feoffment. So at common law, a feoffment gave no title without a livery of seisin; but when livery was made, it had relation back to the date of the feoffment. Livery is a ceremony to complete the conveyance. There is no rule better founded than this, that when all the forms and ceremonies are completed, they are to be taken together as one act, and must relate to the first substantia] part ■of the contract — 5 Burr. 2786-7. The king's grant binds from the date, because it commences ab initio, without any further ceremony to complete it — -Hob. 220, 222. In this case the patent gives title to the land from the date of the certificate of survey. Who was to be protected by the rule which prohibits the running within the lines of an elder survey? Not the government, nor a third person; it was to protect, the right of the person owning the warrant; to prevent mesne surveys which would be the cause of endless disputes and litigation. Thirty years have elapsed since the investigation of the equity of this case. The argument ab ineonvenienti -will have great Inffuence, If the principle of relation is not supported, great inconvenience will result from.inquiries of this nature. A person having a warrant of resurvey may take up vacancies contiguous to any part of 1ns land.</p> <p>Relation is a fiction of law invented for the furtherance of justice. A writ issued in vacation is tested the first day of the last term; but it may be contradicted, and the true time of its issuing be shewn —Cowp. 177. 2 Burr. 968. As to other instances of relation he cited 2 Burr. 1134. 3 Burr. 1243. A Burr. 1961. S Burr. 2783. 1 Salk. 185. The plaintiff’s title was complete before the assignment of the certificate was made to Lyon. A special warrant is an inception of the contract. It was in the year 1768 when the rule was introduced that certificates must be sis months in the office before a grant can issue thereon. A common warrant located has the preference to a special warrant issued afterwards. The defendant’s certificate was not returned to the land office when the plaintiff’s patent issued. If two equities are equal, the prior equity shall .prevail; purchasers without notice, for a valuable consideration, and having the prior legal title, shall have the preference. Where there has been a lease for five years, and afterwards a release, the release shall not have relation to the date of the lease to defeat any mesne conveyance. Relation comes in aid of equity. Admits the doctrine of relation, where several acts are necessary to complete a conveyance, as in the case of feoffment and livery of seisin. Also admits relation between the proprietary and the grantee, but not as to a third person. Relation is complete between the parties, but not between third persons. In the cases cited, a legal estate was first created, and the relation is not to an incipient contract. Induction relates to the presentation to vest a right to tithes, and to invest with a legitimate power.</p> <p>The general principle as to relation is admitted, but it does not apply to this case. It was adopted to prevent the necessity of applying to the court of chancery, where the eldest certificate had been returned. The plaintiff has the oldest legal title with superior equity. Lyon never had any equity, for Howard.hsA paid for the land, and, obtained a patent, before Lyon had paid, or before the assignment of the certificate was made to him. Lyon’s contract with the state, under the warrant of resurvey and certificate, was to correct error, throw out land running foul of elder surveys, and to take up vacancy which lay contiguous; and if there were intermediate granted lands which inicrcepted him, he could net cross over such land to take up vacancy, for he had notcontracted for such vacant land. In this case there was intervening land. The warrant to Medcalf was a special warrant to take up contiguous vacaney, and could be located only on contiguous vacancy. A special warrant of resur.vey is Hot an authority to take up any but contiguous vacancy-. A warrant is a constructive notice to all persons, and whilst it is in force every person-must be presumed to have notice. If in this case the defendant is allowed to run through an elder tract fotakeuptheland, for which we have «prior title, then a special warrant of resurvey would have the effect to operate on all the vacant land in the state, A special Warrant cannot have a priority over a common warrant, as it respects any vacancy not contiguous to the land on which the resurvey is made, There was no contract between the proprietary and Lyon as to vacancy not contiguous, before the composition money was paid. And if the certificate to Medcalf was returned before the grant to Howard issued, it could not affect the plaintiff’s case, as the composition money was not paid. Howard obtained his grant before Lyon paid the composstion money. Nothing but an equitable interest passes till the patent issues. The cases cited do not apply to the case of an equitable title converted into a legal estate. As to the case of the enrolment of a deed of bargain and sale having relation to the date of the deed, the bargain and sale is the legal conveyance, and the enrolment is a mere ceremony; so it is with livery of seisin in case of feoffment. But the patent itself is the legal conveyance. If the warrant and certificate are legal titles, and the issuing of the grant is not a ceremony, then the cases cited by the defendant’s counsel do not apply. When a legal interest has been once conveyed, the party making the conveyance cannot convey to another a legal estate in the same property. The proprietary having once granted, he had nothing left to grant to another.</p> <p>The principle of relation can only rest on equitable grounds, and is established for the purposes of justice. The caveat having been decided the, one way or the oilier, can have no influence on the case.</p>

<p>Attachment on warrant under the act of November If 95, eh. 56, removed to this court from Prince-George’s county court, by a writ of certiorari. Under this attachment, squares and lots lying within the city of Washington, in the District of Columbia, were attached by the sheriff of Prince-George’s county.</p> <p>The following admission of facts were submitted for the court’s opinion thereon, viz.</p> <p>That the plaintiff in this case is and was a citizen of this state at the time when the debt accrued on the cause of action on which the attachment in this case issued. That the defendants in this case, are respectively nonresidents of this state, to wit, resident of the state of Pennsylvania, and that they were traders to this state; and being so nonresident and traders, they having a fee simple estate in the lands on which the attachment is laid, by deed of bargain and sale, duly executed, acknowledged and recorded, before the issuing of the warrant for attachment^ and before the laying'of the attachment, to wit, on the 26th of June 1797, for a valuable consideration paid, conveyed the said lands in fee to a certain Henry Pratt, and others. That the grantees in the said deed were and yet continue citizens and resident of the state of Pennsylvania, and not of this state. That the said Henry Pratt, and others, or any other person, have never executed such bond as is required by the act of 1753, ch. 36, entitled, st A supplementary act to the act, entitled, An act for the relief of creditors in England against bankrupts who have imported any goods into this province not accounted for.” (a)</p> <p>The question was, whether or not the said deed was valid and operative to pass the fee to the grantees therein named?</p> <p>contended, that this case did not come within the meaning, policy or spirit, of tiie act of 1753. If that act stood alone, doubts might be cntcrmeniary to the act of 1704. ch. 29. it was- necessary to consider that law also; all laws made upon the same subject matter must be considered together — 4 Bac. Jh. tit. Statute, 647. He would first take a view of the act of 1704, ch. 29, entitled, “An act for the relief of creditors in England, against bankrupts who have, imported any goods into this province, not ac • counted for.” (a) This law was made soon after the extension of trade from England to this country. It was found necessary that the property of a bankrupt should be liable to tho debts due by him in England, subject to the proviso in the act; because a commission of bankruptcy in England transferred no property of the bankrupt which might be in this country. What was the situation of the people of Maryland under tho act of 1704, tained; but being' stipple unless the commissioners of the bankrupt in England executed a bond? They could demand no account:, and the bankrupt might come into this country, receive his debts, and leave the creditors here without any remedy. The act of 1704 gave no priority or lien to our citizens, but in the event of an execution ef the bond. In the year 1753, the legislature found that the act of 1704 would not meet all the existing evils: it was to secure domestic creditors which was the cause of the passing of the law of that year. Under the act of 1704 only goods and chattels were affected, and domestic creditors had no priority where the bankrupt had land. The. supplementary act in 1753, affected land. The absurd and pernicious consequences which would follow from a contrary construction are innumerable; it would defeat trade. If a man purchased of a foreigner, trading to this state, a cargo of goods, and paid therefor a Ml and valuable consideration, the sale would be void unless be gave bond. If an Englishman mortgaged property to secure the payment of a debt, the mortgage would be void. If a planter sold his tobacco to a British f etor, who assigned bonds in payment, such assignments would be void, unless another bond was given by the purchaser. Even a piece of broad cloth, bought of a foreigner, could be attached, unless the purchaser give bond, to ho liable for the amount to creditors. If land is bought ei a foreigner, and a bond of conveyance is given by him, the purchaser must give bond to be answerable, and under the last clause of the act he must sue himself. Such are the monstrous evils which would flow from this construction.</p> <p>He noticed the 2d section of the 4th article of the constitution of the United States, which he said entitled the defendants, and every citizen of a sister state, to the privileges of our own citizens; and to show that our legislature have considered them on a footing with ourselves, he referred to the act of 1791, ck. 45, sec. 6, which enables foreigners to hold lands in that part of the District of Columbia which lies within this state, in the same manner as if they were citizens of this state.</p> <p>contended, that where the intention of the legislature is plain no other power can controul it. 1 Bik. Com. 91. — There is no evil growing out of the law which may not be reme - died by the ordinary rules of construction. 1 Mb. Com„ 87, lays down the principle by which a statute ought to he construed. We must consider what the law was before the act of 1704; ■ the mischief complained of, and the. remedy intended to be given — when a man, who held property in Maryland, was declared a bankrupt in England, lie was left in the enjoyment of his property here; the mischief was, that honest creditors here were defi'auded. The act of 1704 was the remedy applied to this mischief. In 1704 our exports were less than our imports. Few subjects of these colonies had claims against subjects of Great Britain: but many British subjects had demands against American subjects. British merchants had acquired a considerable property here. The law of 1704 constitutes this property a fund for the discharge of debts against him in case of his bankruptcy. A provision in favour of Maryland creditors was then unnecessary. Between the years 1704 and 1753, the commerce of these colonies assumed a more flourishing aspect; our exports were considerable, and many of our subjects became creditors of British subjects, and the act of 1753 was made for the benefit of such Maryland creditors. This law does not transfer any thing; it merely strikes at certain conveyances. How then can it be said to enlarge the operation of the act of 1704? The act of 1753 is calculated only for the benefit of Maryland creditors. Bankrupts would be more apt to give the preference to British subjects, with whom they were acquainted, than to strangers. Men, much involved in debt, might by fraudulent conveyances withdraw the only fund out of which the Maryland creditors could with ease be satisfied. The word “bankrupt” is properly introduced into the act of 1704, because that act was only intended for the benefit of British creditors. But the law of 1753, being for the benefit of Maryland creditors, it was necessary to introduce a more general term, (trader.) The law of 1753 strikes only at certain conveyances; British merchants may send factors over here, who may purchase negroes, or any other property, (except land,) and transfer it without the sale being affected by this act. The act of 1704 is a perpetual law; that of 1753 a temporary one. If the latter was intended only to enlarge the operation of the former, it ought to have been made permanent. It is introductory of new provisions, the wholesomeness of which was to be determined by time. Experience proving it to be a good law, it was in 1763 made permanent. The law of 1704 was made with a different intent from that of 1753; as to the, title of the act, that is no part of it, nor can be taken as a clue to the exposition of it — 4 Mac. Jib. 465. The words of the act of 1753 are very different from those in the act of 1704; the latter applies only to creditors in England; under the act of 1704 a factor might sell goods in the course of trade, but not otherwise. Had the legislature intended to confine the law of 1753 to bankrupts, why not insert that word, as had been done in the former law? Why substitute in its place the more general term, trader? In determining this question no regard ought to be liad to the consequences, nor to the practice unless sanctioned by law. With respect to the idea suggested by the counsel for the defendants, and predicated upon the 2d section of the 4th article of the constitution of the United States; the law of 1753 gives no preference to our own citizens; a person residing out of Maryland is subject to certain restrictions; citizens of this, as well as other states, purchasing land out of Maryland, must give bond, otherwise the conveyance will be void.</p> <p>Chase, Ch. J. observed, (in reply to something said at the bar,) that it had been decided in the general court, that the attachment first delivered to the sheriff had the preference, and if the sheriff laid the attachment last received, first, it was at his own risk — Wallace, Johnson <‡ Muir, vs. Forrest <$• Stoddert. (a)</p> <p>In the exposition of laws you must sometimes deviate from the words to obtain the spirit; and all laws upon the same subject must be considered in connexion with each other. The .statutes of bankruptcy do not extend beyond England, and could not vest goods in Maryland in the assignees, without an act of assembly. There is no privity between the assignees and the bankrupt; they take under the appointment of the creditors, and not by transfer from the bankrupt. But the bankrupt might have transferred the property in this country to the assignee; and the law was to prevent Maryland creditors from being deprived of their debts. For under a commission of bankruptcy in England no foreigner can come in for a dividend. This proves the propriety of the proviso in the act of 1704, as the commissioners under that act would have swept off all the property for British creditors. About the year 1753 British merchants had acquired in these colonies other property besides goods, and debts due therefor; and the act of 1704 affected only them. It was the practice of the bankrupt to make an actual assignment of the property he had in the colonies. The property in Great Britain was transferred to the commissioners by operation of law; but actual conveyances were necessary to vest in them such property as the bankrupt had in the colonies. Those assignments were made in order that the dividend might be greater, and the allowance to the bankrupt larger. Conveyances and assurances, mention-c;} jn the act, meant such as were given by bankrupts to their assignees. Assignment being the only method by which the assignees coiild obtain an interest in the bankrupt’s property in this province,'the law declares such assignments void unless bond be given to satisfy debts due from bankrupts to citizens of Maryland, to the amount of the property conveyed to them; The title of a law, it has been said, is no part of a law. Although this be true, yet the title is so far a part of the law as to let us know whether it he a supplement to any other law, and must be considered in connexion there* with. The word England is used in the law of 170-4, because the union of England and Scotland had not then taken place, and we had no commerce with the latter. They were united shortly after, before the year 1753. According to the construction, given to ‘ the law by the gentlemen on the other side, all purchases from foreigners would be insecure; but if their idea he correct, a contract for a valuable consideration could never be invalidated, although the purchase money ivas never applied as by the law intended. It could never have been designed, that the purchaser should be insecure to render the Maryland creditor secure. The assignees paid nothing for the property which was assigned to them for the use of the British creditors; they are forbid to touch such property, unless they previously give bond; such condition can operate- no injury to them as they pay nothing; and if they chuse to take it, it must be charged to the full extent of its value, with the debts due to Maryland credi - tors. Commerce cannot be carried on to any extent without the creditors taking instruments of writing. If credit be given, bonds, notes, bills of exchange, &c. are-required. To this it is replied, that bonds could not be assigned in England, nor until many years after, (1763,) in Maryland. But let it be remembered, that nolcs and hills of exchange might — nay bonds might be assigned and the assignee be enabled to recover the money.</p> <p>To the remark that the laws were not connected because the one was a perpetual and the other temporary, it may be answered, that the law of 1753 ivas made tem - porary because its utility was to he determined by experiment. It was practised under and was found beneficial. In short, the evils resulting from such a construc - tion, as the gentlemen contend for on the part of the plaintiff, are so many and monstrous, so variant from the general interpretation, and the uniform practice under it, that he trusted it would never receive the sanction of tins court.</p> <p>Chase, Ch. J. delivered the following opinion: (a) The court, after full consideration of this case, are of opinion, that the acts of parliament relating to bankrupts did not extend to the province of Maryland, and did not operate on the property of the bankrupt which he held here. The act of 1704, ch. 29, relates expressly to bankrupts in England importing goods and merchandise into the province of Maryland. The legislature had two objects in view,</p> <p>1st. The securing the property of the bankrupt here, being goods and merchandise, for the benefit of his creditors.</p> <p>2d. To secure a preference in the payment of the debts contracted here by the bankrupt under the credit of such goods imported.</p> <p>By the operation of this act of assembly all the right to the goods of the bankrupt, not accounted for by the factor to his principal, previous to a demand made by the agent, factor, or attorney of the commissioner of the bankrupt, was vested in the commissioner; provided security was given by the factor of the commissioner to satisfy debts contracted here by the bankrupt. When the act of 1704 passed, the commerce or trade of the province was very inconsiderable, and consisted chiefly of the importation of goods from England, and exportation of tobacco from hence. The act of 1753, ch. 36, is a supplement to the act of 1704. These acts must be considered together as forming one system, and such an exposition given as will effectuate the general intention of the legislature, and to answer the ends of public benefit which they bad in view. In the interval between the two acts, the trade of the province had much increased; the merchants in England trading here had acquired property in lands, negroes, and every species of personal estate. The act of 1753 embraced more objects than the principal; it comprehended every kind of property, real and personal; it extended to ail traders, those in England, or residing elsewhere, trading to this province. It contemplates traders becoming bankrupts wherever they might live out of the province, and pursues the great object under the act of 1704, the securing a preference or priority of payment of the debts due to creditors resident in the province, contracted on the faith of the property of the trader, and to the extent of the property which shall come to the hands or possession of such agent, attorney, or person acting by commission or direction as aforesaid. According to the laws of England, when a commission of bankruptcy is taken out, all the property of the bankrupt in England is vested in tile commissioners from the time the first act of bankruptcy was committed, and all transfers and dispositions of property made by the bankrupt in the intermediate time 01'6 avoided. — 1 Burr. 31. As the acts of bankruptcy did not operate on the property of tiie bankrupt here, if the commissioner did not proceed under the act of assembly of 1704 to subject the property here to the commission, the bankrupt retained tiie power of disposition over it, and the creditors had a right to proceed against the bankrupt, and attach Lis property here, and then each creditor secured his debt according to the diligence used for the recovery of it. According to the act of 1753 when a trader to this province became a bankrupt, and was declared so according to the laws of the country where he lived, the power of disposition of his property here was restrained, and he could not make a valid transfer of it to the commissioner, or bis agent, factor or attorney, unless bond was given in the manner that act directs; and if such bond was not given, tiie whole of the property of the bankrupt here, of every kind and denomination, would remain as a fund for the payment of the debts of the creditors of the bankrupt, and ‘.¿tachable wherever it could he found in Maryland.</p> <p>Tliis appears to the court to be the sound construction of tiie two acts of assembly, considering them together as forming one system, and relating to traders'living out of this state, and trading here. By this exposition, which is warranted by the acts themselves, justice will be done to the creditors who contracted debts witls the bankrupt on the credit of the property he held here, and the numerous evils and inconveniencies avoided which would result from, and grow out of, the construction contended for, considcrng the act of 1753 as an independent” law, and having no relation to the act of 1704. It may well be conjectured, that an evil experienced between the acts of 1704 and 1753, by the creditors of Maryland, gave'rise to the-act of 1753. As the acts relating to bankrupts did not operate to vest the property of the bankrupt, which be held in this province, in the commissioners, the bankrupt retaining the power of disposition over the properly might have transferred it to the commissioners, and thereby have given a preference to his creditors in England, in total exclusion of his creditors here, whereby that property, which was considered as the proper fund for paying the creditors here, would be broke in upon, and diverted from its proper use, to.the injury of the creditors here. The act of 1753. made to restrain this unjust and pernicious practice of the bankrupt, by declaring all assurances and transfers made in writing by tine baakrr.pt, of his property here, Ineffectual, unless bond with security was given in the manner prescribed by the act, operates in the same manner on the property here, as the bankrupt laws of England affected the property there, in defeating all conveyanees and transfers made by the bankrupt after be was so declared, By this construction of the act, that evil is redressed, and the property here is liable to be attached by the creditors residing in this state. It is certainly contrary to the principles of commerce, and repugnant to justice, that the assembly should interfere to restrain the tree transfer of property by a trader previous to his becoming a bankrupt; such regulation instead of promoting would annihilate trade. The act of 1704 points at the evil to be remedied, and provides for the security of the creditors who trusted the bankrupt's property here. It was impracticable for the creditors living in this province, from the remoteness of tlieir situation, to come in for a dividend of the bankrupt’s property in England; and hence the necessity of appropriating by law the property here, as a fund out of which the creditors residing in this province were to be satisfied if the commissioner availed himself of the acts of 1704 and 1753 — 2 Burr. 829. 1 Bci. M, 258» The act of 1753 being a supplement to the act of 1704, and pursuing the same object, was more effectual in its operation for the attainment of it. The act of 1753 avoids ail assurances and transfers of the property, in this province, of the trader, after he becomes a bankrupt; it restrains the commissioner from proceeding under the commission to affect the property here, until he gives bond with security, to be answerable to the creditors residing . within this province, to the full extent of the property here belonging to the bankrupt, if the commissioner did not elect to proceed under the act, and give the seen-, ritv required; the creditors residing in the province would generally acquire a preference, because, being on the spot, they could first lay attachments on the property here. The attachment laws passed in 1692, c. 62, recorded in Lib. L» L. fol. 172, Liber TF. M. <§’ L. fol, 103, and Liber A. A. No. 2. fol. 17; and in 1704, c. 14, recorded in Lib. L. L. No. 3, fol. 1 — 'These acts were similar to the act of 1715, c. 40. The words, f‘or elsewhere,”J in the act of 1753, iverc thrown in rather to provide for a possible than a probable case; for in 1753 ■ the trade with the province of Maryland was almost confined to merchants in England and Scotland, who did business through the medium of their factors here. If the act of 1753 is considered as an independent lav, the consequence would be, that every assurance and transfer in writing, by a trader living out of the province, of any part of his property, real or personal, would be void, unless the purchaser gave bond and security to be answerable to the amount of the property so transferred *° him, which would effectually prevent all transfers in writing, from the trader, of any part of his property, to any person whatever, as no person would become a purchaser, if to validate the writing, the evidence of his title to the property bought, he is to give bond, with security, to be answerable to the amount of such property. I am satisfied the. two acts ought to be considered together as making one system of law on the same subject, and as providing for the case of a trader living out of the province who becomes a bankrupt. The words “agent or agents, attorney or attornies in fact, or such other person or persons, who shall act by commission or direction,” &r. used in the middle of the first section of the act of 1753, and repeated in the conclusion of the same section, with the words “goods,” &c. “which shall come to their hands or possession,” coupled with the act of 1704, indicate plainly that the assembly had nothing in contemplation but the. case of a trader becoming bankrupt; and this exposition is confirmed by the evils and inconveniencies resulting from a contrary construction, and no instance having occurred in which the unlimited operation contended for has been given to the act of 1753.</p> <p>In the case of William Campbell against Robert Morris, (a) on the clause in the constitution of the general government, that the citizens of one state, should enjoy all the immunities and privileges of the citizens of any other state, the court determined, that a particular and limited operation was to be given to those words; that it did not mean the right of suffrage, the right, of holding offices in the state, nor the right of being elected, but the meaning of those words was, that the citizens of all the states should have and enjoy the peculiar advantage of acquiring and holding real as well as personal property, and that the sanie should be protected and secured by the laws of the state in the same manner as the property of the citizens of the state is protected. That it should not be liable to any taxes or burthens which the property of the citizens is not subject to; and to be on the same footing in the payment of the debts of a deceased debtor, with creditors living in the state. If the act of Í753 is to he viewed as an independent law, without reference to the act of 1704, and a deed is good to a creditor or person residing within the state, all creditors or persons residing in any of the other states, as to the means of acquiring and holding real and personal property, are to he considered on the same footing, and as enjoying the same immunities and privileges. By the act of 1791, ch. 45, s. 6, a foreigner is made capable of taking and holding lands within that part of the territory of Columbia, lying within this state, fey deed or will, and of conveying or transmitting the same to his heirs, in the same manner as if he was a citizen of this state. This act has no influence on the question before the court. A foreigner means a person who is not a citizen of any of the United States. The privilege or capacity of taking, holding, conveying, and transmitting lands, lying within any of the United States, is by the general government conferred on, and secured to all the citizens of any of the United States, in the same manner as a citizen of the state where the land lies could take, hold, convey, and transmit the same.</p> <p>The Court are of opinion, that the deed from Morris, Nicholson, Fox and Greenleqf, to Henry Pratt, and others, is valid and operative to pass the lands therein mentioned to the said Henry Pratt, and others, notwithstanding the said objections.</p>

<p>Appear from Prince George’s county court. ' It was an action of debt for an escape.</p> <p>At the trial in the county court, the plaintiff in that court, (the now appellant,) offered in evidence to the jury, a judgment obtained by him in the said court against one Benjamin Duvall, and a writ of capias ad satisfaciendum thereon issued, being the same judgment and writ of capias ad satisfaciendum mentioned in the declaration; and also a return upon the said writ, made by Beall the defendant, (the now appellee,) and the sheriff, to whom the said writ was directed and delivered; by which the said sheriff did return to the court, that he liad taken the said Duvall, and had him according to the command of the said writ.</p> <p>The plaintiff then called a witness, Thomas Harwood, to prove that the said Duvall, at the return of the said writ of capias ad satisfaciendum, was brought into court, and committed to the custody of the said Beall, as sheriff of the county aforesaid, and that the said Beall did himself voluntarily suffer the said Duvall to escape, and go at large. And the said witness objected to being sworn in the cause, alleging that lie wag interested in the said cause; that he was at the time aforesaid one of the deputy sheriffs under the said defendant, and was the person who, as deputy sheriff, served the writ of execution. Whereupon the court ordered him to be sworn specialty, to answer such questions as should be put to him by the court; and the said Harwood then Was sworn; and being’ asked by the court, “whether be would be a gainer or loser by the event of this cause, and whether he believed himself to be interested in the determination thereof?” On oath declared, that he considered himself interested; because if the plaintiff in this cause recovered from the defendant, the said Harwood apprehended himself liable to the defendant for the amount of the recovery. Whereupon the county, court were of opinion that the said Thomas Harwood was interested, and would not compel him to give evidence to the jury in the cause, and he accordingly was .not sworn to the jury. To which opinion the plaintiff excepted, and the verdict and judgment being against him, he appealed to this court.</p>

Debt upon a single bill. The general issue was pleaded, with leave to give the special matter in evidence.

Trespass, vi et armis, for taking a grey stud horse. called Shakspears, of the value of 200Í. current money, and converting him, &c. The general issue pleaded. The. plaintiff, at the trial, offered Joseph Magrnder as a witness, by whom he offered to prove, that the horse for which this suit is brought was the property of the plaintiff, and that a conditional contract vas made, between the, plaintiff and witness for the said horse, which Contract was afterwards cancelled.

Trespass Q. C. F. The defendant pleaded non cuL and that the freehold was in Benjamin Hall, by whose licence lie entered, &c. General replications and issues joined. Plots were made and returned under a warrant of resiirvey issued in the cause.

Assumpsit upon an accepted inland hill of exchange, drawn by William Mayne Duncanson, on the defendants, in favour of the plaintiff.

The judgment had been rendered by confession for assets in futuro, without any declaration being filed} the plaintiff’s cause of action is stated in the record.

Ejectment for a tract of land called Kirkminster, surveyed in the year 1689. The defendant took defence on warrant, and plots were made. The dispute between the parties was, what was the true location of Kirkminster. 1.

Refeeyin for a negro slave. The sheriff returned, «‘replevied and delivered, and the defendant summoned.’ The state of the case was, that James Black, of Now-Castle county, in the state of Delaware, died in possession of the negro in question. That by his will he appointed four executors, the plaintiffs and George Black, and Wallace, who renounced. That George Black died, leaving the plaintiffs surviving executors, and by his will appointed the defendant his executor.

Repievin for negro slaves. Case stated. It was admitted that Robert Davidge, being in his lifetime possessed of two negro slaves, viz. Moll and Fanny, su his own proper slaves, by his will, dated the. 3;1 of June 17G9, made the following bequest: «ítem, 1 give «arid bequeath unto Joshua Yates, the san of Eleanor ¿’Yates, during his natural life, one. negro woman named “Moll, and her daughter Fanny; but in case the said “Joshua Fates should die without lawful issue, my will…

Ejectment for a tract of land called Bordug’s Ha-, iiiation Rock, lying in Baltimore county. The defendant took defence on warrant for all tliat part of the said tract of land, which is included within the lines of a tract of land called Singery’s Trouting Streams, according to his location thereof on the plots returned in the cause. Bins op Exceptions. 1.

Eerievin for two negro slaves, James and Harry. The whole record of the proceedings, including the special verdict and Ml of exceptions, are set forth in 2 Harris’s Entries, 245 to 253.

Ejectment for lot No. 14, in the city of Baltimore, of that part of the said city called Fell’s Point.

<p>Aiteax from Frederick county court, from a judgment rendered in that court in favour of the appellee, on a petition for freedom.</p> <p>The bill of exceptions, taken at the trial, states, that the petitioner, ('Pierre Leivis,) claimed his freedom from having been brought into tisis state from the island of Saint Domingo in the year 1793. The defendant, in the court below, gave in evidence that he was a native of the island of Saint Domingo, and resided therein, and antecedently to the year 1786 went frequently from thence to France, and again returned. That it was customary with the people of fortune in that island to hold a small plantation in France. Thai in 1786 he went to France, and in 17S7 or 1788 purchased a small plantation, and lived and resided there until the year 1793. That in 1789 he was a member of the constituent assembly in France, being a deputy from the province of Touvaine to the said constituent assembly. That in June 1793 he determined to go to Saint Domingo, and left France with that intention, but there being no safe direct conveyance to Saint Domingo, availed himself of a neutral ship bound to America, with a view to go immediately from thence to Saint Domingo. That he landed in America in August 1793, when hearing of the disturbances in the island of Saint Domingo, declined going there in consequence of those troubles, and resided in America in the state of Maryland, where he has ever cinco resided, and still resides. That the petitioner wac the slave, in Saint Domingo, to Pierre Payen, the brother of tli© defendant, who was a native and resident of Saint Domingo, and held the said petitioner as bis slave until the said Pierre Payen’’s death, which happened in January 1791, in Saint Domingo. That the defendant was appointed executor and testamentary representative of the said Pierre Payen, hut had not taken out letters testamentary. That the defendant caused the petitioner to be brought from Saint Domingo to George-Town, in Montgomery county, in the State of Maryland, where lie was landed on the 4th of November 1793; and that on the 31st of December 1793, the defendant did deliver and lodge with the clerk of Montgomery county court, a list of the slaves by him so imported, among which was the said Pierre Lewie, raid is in the words following; (being a translation of it, the original being in the French language;) that is to say, “1 the undersigned, an inhabitant of the French part of the island of Saint Domingo, at this time a resident of Frederick-Town in Maryland, and in conformity to the law of this state of the 23d of December 1792, declare, that three negro slaves, sent from Saint Domingo, arrived the 4th o£i\o= veraber last at George-Town, in Maryland, in the vessel commanded by Capt. Henry Dunning, to wit; Pierrs Lewis, aged about thirty-five; Lambert, aged about five years; and the negro girl Filleüe, aged about eight years: which domestics I keep in my service, conformable to the authorisation granted me by the aforesaid law. Bone at Frederick-Town, in Maryland, this 24th of December, 1793.</p> <p>Paten Eoxsneue-N</p> <p>That the. said Pierre Lewis never was used as a domestic or house slave, by the defendant, before he was brought, to America.</p> <p>The defendant, upon the aforegoing evidence, prayed the opinion of the court, and their direction to the jury, that if they believed the evidence m siafed, the said</p> <p>Pierre Lewis, the petitioner, was not entitled by law to freedom. The County Court [Potts, Ch. J.] Was of 0p¡nx0n, and directed the jury, that if they believed the evidence as above stated, the petitioner was entitled to his freedom. The defendant excepted, and prosecuted this appeal.</p>

<p>Arrear from the county court of Frederick, from a judgment in that court, dismissing the petition filed therein for freedom, by the present appellant.</p> <p>A case, embracing the following facts, was submitted to the county court for their opinion, viz. That a certain Peter Bainbridge, a citizen of the United States, was a resident' of the state of South Carolina, long before, and until the month of April 1791, and did rightfully during his said x*esidence, hold and possess, as his own proper slave, negro Plato, the petitioner, now ,of the age of sixteen years, who was born in the said state, and therein resided from his birth until the month of April aforesaid. That in the month of April 1791, the said Bainbridge removed from the said state of S. C» into this state, with a bona Jide intention of settling here; and upon his said removal he brought with him the said negro Plato, claiming and holding him as a slave. That upon his removal into this state as aforesaid, the first county into which the said Bainbridge brought the said negro Plata was the county of Montgomery. That the said Bainbridge resided in Frederick county, in this state, for two years after Ins said removal into this state as aforesaid; and in the month of November 1791, sold the said negro Plato to the defendant, who then resided tunl still resides in Frederick county aforesaid, and who holds and claims the said negro Piafo as a slave. That the said Bainbridge, on the 17th of February ] 795, and mot before, did by bis own .oath, fully prove to the satisfact ion of James Maceabbin Lingan, who was then and at the time of the removal of the said negro Plato into till's state as aforesaid, collector and naval officer under the government of the United States for the district and port of George-Town, in Montgomery county aforesaid? the residence, of the said negro Plato in some one of the United States for the space of three whole years next preceding and antecedent to his conning into this state» That the said Peter Bainbridge, on the Sd of August 1796, and not before, did fully prove to the satisfaction of John Ritchie, being then and at the time of the importation as aforesaid, collector of the tax for Frederick, county aforesaid, by the oath of one credible witness? the residence of the said negro Plato in some one of the United States for the space of three whole years next preceding and antecedent to his coming into this state.</p> <p>The County Court, upon the preceding statement? gave judgment that the petitioner was not entitled to bis freedom, and dismissed the petition; from which judgment this appeal was prosecuted.</p>

This case came up originally by way of appeal from Allegany county court. It was an action of assumpsit. The declaration, contained sundry counts, viz. sundry mattersmoney had and received; money lakl out and expended; use and occupation of a tenement! and indebitatus assumpsit for 205?. The defendant pleaded non assumpsit and the act of limitations — .Issues were joined. 1.

Ejectment for a tract of land called « The Rcsnrvey bn part of TVbod’s Inclosure,” lying in Frederick county, The defendant took defence on warrant, and plots were made and returned. The plaintiff at the trial, read in evidence a certificate of survey' made for and in the name of John Howard, ■ ón the 5tK of March 1753, for the land in question.

Assumpsit for money had and received. The action was entered at the time it was brought, « at the instance and for the use of William Hall, 3d, and others, commissioners for building a new prison in the city of Annapolis;” but at the trial of the cause this entry was stricken out by the counsel for the plaintiff.

Ejectment for a tract of land called The Resurvey m Pipe Tomahock, lying in Washington county. The defendant took defence upon the plots returned in the cause, for two tracts of land, one called The Grove, and the other called Hazard, both of which tracts were included within the plaintiff’s location of The Resurvey on Pipe Tomahock.

Ejectment for a tract of land called Chance, lying in Baint-Mary’s county.

Fieri Facias, under the act of assembly of 1793, eh. 30, s. Identified, '‘An act to establish a Bank in the District of Columbia,” issued on the 14th of August 1799, and directed to the sheriff of Prince-George’s county; also duplicates of the said writ, directed to the sheriffs of Washington and Allegany counties. . [Yide the form of the writ in 2 Ilarr.

The hill in this case, (filed on the 27th of September 1793,) states, that.

Ejectment for Westwood Manor in Charles county. That the said Thomas afterwards, on the 7th of November 1685, devised all his estate, real and personal, to his wife Ann, who after the death of the said Thomas, and in the life-time of the said Justinian, was seised* That Justinian afterwards died in 1687, without issue, leaving his wife Sarah, his survivor, who married one Michael Curtice.

<p>cited Cro. Car. 450. 1 Roll's M. 305, tit. Audita Querela. Bro. tit. Stat. Merck. 43. By-er 180, pi. 49. Acts of assembly 1715, c. 33, 25. 1704, c. 49. 1721, c. 4. 1728, c. 24. 1732, c. 22.</p> <p>cited 2 Roll's Rep. 132. Compl. Att'y. 245 Cro. Mia. 44, 181. Moore 352.1 Mod. 188, 1 Roll's Rep. 383. 1 Roll's Rep. 133. Moore 850.</p>

<p>Judgment on the demurrer for the defendant.</p>

<p>Judgment upon the demurrer for the plaintiff»</p>

4ihly. The judgment is variant from the award. Cited Yebo. 107. Cm. Eli». 497. Yelv. 45. Vin. lit. Judgment 591, pi. 3, To the 3d point, cited 3 ICeb. 844 pi. 9. 12 Mod. 493. Salk. 403. 2 Stra. 823. 1 Lord Maym. 695. 2 Sira. 80S, 934. To the 4th point, cited 2 Stra. 1025, 735. 13 Mod. 234, 257. Bac. Ab. tit. Arbitration, 144.

Ejectment for Timber Point, lying in Dorchester county. The question was, whether a disseisseo could devise lands of which he was disseised? contended, that lands could not be devised at common law; and were only deviseable by statute or particular custom. — 32 Hen. VIII. ch. 1. 34 Hen. VIII. ch. 5. Plow. 344. 1 Mod. 27, 217. Bro. Jib. tit. Devise, pi. 15. 1 Rol. Jib. 378, pi. 3. 1 Salk. 237. Hob. 746. Law of Devises 135. Co. Litt. 49, 39 H. VI.foL 18.

<p>This was an action on the case for a deceit in the sale of a negro woman, slave, warranting her to be sound. Plea, “that he did not warrant the negro woman called, &c. to be sound and healthy, and without any infirmity, as the said John above against him hath complained,” &c» Issue joined.</p>

<p>Teeseass Q. C. F. into a tract of land called Comb’s Adventure, lying in Baltimore county.</p>

<p>A deed for said land, dated the 14th of September 1741, from James Philips to Isaac Webster the defendant, for 500 acres.</p>

<p>Trespass for breaking and entering the plaintiff’s close called Browning’s Neglect, in Cecil county.</p> <p>1, The Plaintiff at the trial in Cecil county court in June 1759, noncul. being pleaded and issue joined, offered a witness to prove the possession of the plaintiff in the said close. The defendant objected, alleging that the witness had a lease from the plaintiff of part of the said close, which was admitted. The Court decided that the witness should not, for that reason, be examined in the cause. The Plaintiff excepted.</p> <p>2. The Plaintiff offered one II. Sappington as a witness to prove the plaintiff’s possession of the said close, who being sworn on the voire dire, at the instance of the defendant, was asked by the court, “whether or not he was to be a gainer or loser by the event of the cause?” Answered, that he did not know he was to be a farthing gainer or loser by the event of the cause? but-said he was to have a lease from the plaintiff of that land: upon which the trespass is supposed to have been committed. The defendant objected to the said Sappington’s being sworn generally, for that what the witness had disclosed had discovered such an interest in the cause as disqualified him from being an evidence. The Court decided that it was such an interest as disqualified the witness from being sworn generally in the cause. The», Plaintiff excepted — and appealed to this court.</p> <p>Judgment Reversed- by this court, at April term, 1766, and a new trial ordered at the Cecil assizes.</p> <p>3. The plaintiff at the new trial produced a witness to prove his possession in the close in which the trespass is alleged to have been committed. The defendant offered and insisted to examine the same witness, to shew a prior possession in Mm in the place where, &c. upon the plea of not guilty. The plaintiff objected, it not be-ing legal evidence, upon the general issue plea of not guilty.</p>

4. That the said Boreing, father of Absalom, entered into, was seised in fee, and died seised of the above lands. 5. That the lands descended to Absalom Boreing mentioned in the declaration, as his son and heir at law. 7. That then Absalom Boreing being an infant, made a contract and agreement with Nicholas Britton for the purchase and sale of the above lauds. 8.

Ejectment for sundry tracts of land lying in Ealtijjiore county, viz. Boreing’s Forest, CuckoUlmakefs JIufiará, and Boreing’s Gift General defence, and plots returned. II. That afterwards, to wit, 27th July 1765, Boreing executed his deed of bargain and sale to the lessors of the plaintiff, which was duly acknowledged and recorded, and the consideration paid. 12.

Ejectment for a tract of land called Iiverly Hill, lying in Baltimore county, containing 394 acres. Facts Stated. Everly Hill, containing 394 acres, granted to Thomas.

By the intermarriage, a nian ia immediately vested solely with the personal property .of his wife; he is seised of an estate during the coverture ia… Held: by the bankruptcy and his delivery of liis effects, it should discharge Mm of the debt, and be a temporary discharge of the woman. By the same reason, a temporary discharge allowed there, it may here. In Sallteld, the suspension must be by act of the party, the act of the husband may not be taken as the act of the wife.

Here was an interruption of the possession of the giver, and an act of dominion exercised by the donee, so as to demonstrate an intention in one to transfer, and the other to accept.

Richard Johns, and Elizabeth his wife, daughter of Hugh Kinsey the grantee, conveyed by deed, bearing date the 2 0th March 1681, the land in question called Kinsey, to THlliam Cromwell., and his heirs, except that part which lav in the elder survey of Buck Cove. «•Item.

An attachment on a judgment is in the nature of a fieri facias at common law. — Act of Ass. 1715, ch. 40. A fieri facias is a judicial writ at common law, on which the goods and chattels only of the debtor could be taken in execution. It took its name from the words of the writ. — Co. Litt. 290. 6. 3 Co. 11. The writs of execution at common law were only a ft. fa. on the goods and chattels, and a levarifacias, to lay £jle dgjjt and damages upon the land and chattels. — l)alt.

1. The plaintiff at the trial, amongst other title papers, produced a grant from the Lord Proprietary to a certain Marmaduke Simms, hearing date the 1st of June 1687, for the tract of land railed Pin ms’ Forest, “beginning at a bounded red oak standing by Elk river road in the woods, near the land railed The Forest, and running thence with the said road S. and by E. 200 perches, to another bounded red oak standing near the said road, then running.” &c. 2.

In the trial of the issue in this canse it appeared in evidence to the jury, that the plaintiff was not a merchant, as laid in the third count of his declaration, at the time when the words, as laid in the said third count, were spoken of asid concerning the plaintiff by the defendant.

This was an action on the case for a nuisance; and the plaintiif’s declaration was as follows, viz. “ Maryland: Baltimore county, sc.