Volume 5 — Harris & Johnson's Maryland Reports

This was an action of debt instituted by the appellee against the appellant, on a writing obligatory, executed by T. Harris, P. Wilmer, (the appellant,) and TV.

Ejectment for three • . ° ° racts of land, viz. Piccadilly, Vicharas Venture, and °3 5 Bunn’s Range.

The following case was stated for the opinion •of that court, viz. That Marie. Benton died intestate, without issue, on the 4th of November-1808, -seized of the lands and tenements mentioned m the declaration; -and that said lands and tenements were acquired by tbe in- . i • i testate by-purchase, and not derived from or through either J 1 i i i t_ xi of his ancestors.

This was an action on. the case, brought by the appellee against the appellant.

Ejectment for a tract of land called Tulip Forest. The defendant in the court below, (the present appellee,) took defence on warrant, and plots were returned. 1. At the trial the plaintiff read in evidence a grant of the tract of land called Tulip Forest, made to Simon Wickes on the 6th of November 1790, and traced the title from Simon Wickes to the lessor of the plaintiff.

Assumpsit by the appellee against the appellant. The declaration , . . . , „ contained tour counts:—1 he first for §250for services reny dered as an overseer on the íarm oí the' defendant, fnow appellant,) in the year 1817. The second for the like sum for work and labour as an overseer, &c. in the same year. The third on a quantum meruit for services rendered as an overseer, &c. and the fourth on an insimid compuiassent. The general issue was pleaded. .

The appellant petitioned the county court for his freedom, as being descended lineally in the female line, from a free woman named Violet. The general issue was pleaded. 1. At the trial the petitioner proved, by competent timony, that he was the son of a woman by the name of Tansey, who was the daughter of Violet.

It was an action debt on a bond dated the' 13th of April 1802. Judgment was given by the court below for the defendant, on a case stated. The facts agreed upon were, that Morgan,. the plaintiff, at the April term 1801, of the late General tíourt, obtained a judgment on a bond against one Samuel Davis, _ -, , _ , , i. for penalty and costs, to be released on payment of r J . _ $2200, with interest from the 24th of November 1796, 7 • 7 till paid, and costs.

<p>s«A5suppm-?ecimaf eapaclty°of depuáVronsMoer.1 “</p> <p>riff a ¡n’’“seifhig com-the plaintiff in which the fC fa-issued, is satisfied h|8debt,an<tctionty, of trover may be deftn'dant m such good™eaKain»tthe ÍwÍouk líoef’as</p> <p>!¡asVhh*n lucí )>c1adeputysising atyiií‘,ui“ó™ fraud l,ommlts a</p>

<p>Appeal from the court of chancery.</p> <p>The case is sufficiently stated in the court’s opinion.</p>

The plain-__ * / \ 7 > , ,. tiff in that court, (the present appellant,) brought an acti7 ' 1 11 7 ° on of ejectment to recover part ot a tract of land callea Magruder’s Plains Enlarged, which was described by courses and distances, and as containing 100 acres of land. The defendant, (now appellee,) took general defence, the general issue was joined.

. The cate was this: A judgment was rendered in Charles county court in favour of the present appellants, against John Campbell, in, August 1 80. It was superseded by a confession entered into on the 29th of March 1809, by Campbell, with F. Newman and W. Courts as his sureties. On this ccnfos«Ion a scire facias issued on the 17th of February 1817, against Campbell, Newman and Courts.

The appellee brought an action on the case against the appellant for obstructing a water course* &c. The injury complained of, and set forth in the declaration, was overflowing lands by the back water from a mill in the occupancy of the plaintiff below. The defendant pleaded hot guilty, and issue was joined. A warrant of resurvey was issued, and the lands were laid down on plots returned.

It was an action of assumpsit for money paid, laid out and expended, and for money had and received, brought by the appellant against the appellees. The following case was submitted to the county court for their opinion, viz. That the plaintiff, (now appellant,) resides on a tract of land situated ydthin three miles of the turnpike gate, No. 2, of the Baltimore and Ráster'1 s-tovm Turnpike Road, but that no part of the said tract runs with, binds bn, or touches the said road.

This was a •petition freedom, and was submitted to Baltimore city court, UP011 tiie following statement of facts, viz. That the defondant, (the appellee,) being driven from the island of Saint Domingo by an insurrection of the negroes, fled to the city of New-York, carrying witli her the petitioners, (the appellants.) She arrived at New-York in 1797, but finding the climate unfavouvable to her health, removed to the city of Baltimore, with the petitioners as part of her * . .

° ■ ‘ ‘ • tLat court, on a petition for freedom. Held: and now holds, real and personal property ' . » ' r. * v in this state, and is a native thereof. That she has a nu mber of relations residing in this state; and has alternately resided in Pennsylvania, and in this state, since her first removal to Carlisle, and has spent two winters in Jlnnapolis since 1813.

<p>Appeal from Baltimore city court from a judgment rendered on a petition for freedom, dismissing the petition. At the trial the petitioner, by his counsel, offered in evidence a deed of manumission executed by Prettyman Boyes, of Sussex county, in the state of Delaware, on the 12th of October 1801, in which he stated that he set free from bondage bis negro Carsy, daughter of Annes, who was born in 1T94, to he free as above when she comes to be 18 years of age. The deed was signed, sealed and delivered, in the presence of A.sakel Phelps and Daniel Balter, the former of whom, on the 18th of- November 1801, in a court of common picas held for Sussex county, “made oath, in due form of law, that he saw the grantor sign, seal ■and deliver, the deed; that he subscribed his name to it as a witness, and saw Daniel Balter subscribe his name as another witness.” The copy was certified by the recorder of Sussex county to be a true one taken from the record thereof remaining on the rolls office for the said county. It was also certified by the secretary of state of Delaware, that the person, a copy of whose name is subscribed to the certificate of the proof of the execution of the deed of manumission, was at the date thereof Prothonotary of the . Court of Common Ploas of the state of Delaware; and that the person whose name is subscribed to the certificate of the copy of the rolls, &c. was and is recorder of deeds in and for Sussex county. It was also certified by the chief justice of the court of common pleas of said state, that the attestation by the recorder of deeds, &c. is in due form, and by the proper officer. There was also the certificate of the secretary of state of Delaioare, that the person who certified as chief justice, &c.’was such, &c. And the certificate of the prothpnotary of the court of common pleas of New-Castle county, that the person who certified as chief justice, &c. was such, &c. It was admitted that the petitioner is the person mentioned in the deed of manumission. The act of assembly of Delaware, which autho-, rised the executing deeds of manumission of slaves, passed on the 18th of January 1797, eh. 124; and those parts of the act which are material in this case are as follows: Section 2. “That all and every manumission of any negro or mulatto slave shall be in writing, and signed and sealéd by the master or mistress manumitting such slave, and shall be attested and subscribed, in the presence of such master or mistress, by one or more competent and credible witnesses, or else such manumission shall be utterly void and of none effect.” Section 3. “That it shall and may be lawful for any master or mistress named in such manumission, which shall be signed, sealed, attested and subscribed, as aforesaid, in his or her proper person, or by his or her attorney for that purpose appointed, to appear before the supreme court, or before the court of common pleas, or before the chancellor, or any judge or justice of the peace in the county in which such master or mistress reside, at any time after the execution of. such manumission, and acknowledge that such manumission is the act or deed of such master or mistress; and in case such master or mistress be dead, or cannot appear, it shall and may be lawful for any one or more of the witnesses, who attested and subscribed such manumission, to be brought before the supreme court, or court of common pleas, or before the chancellor, or any judge or justice of the peace, _ which witness or witnesses shall be examined upon oath,, or affirmation, to prove the execution, and their attestation and subscription of the manumission then produced; whereupon the clerk or prothonotary of the said court, under his hand, and the seal of his office, or the said chancellor, judge, or justice of the peace, under his hand and seal, shall certify such acknowledgment or proof upon the back of the manumission as aforesaid, within the year, when the same was made and by whom; and every such manumission, so acknowledged or proved, shall be recorded in the' office forrecording of deeds, after the execution thereof,” &c.</p>

The appellant, (the plaintiff in the court below,) brought an action of trespass on the case against the appellee, to recover damages for an injury sustained by the plaintiff from a tortious of the defendant, in committing waste upon premises which the plaintiff was a lessee for years. A verdict was found for the plaintiff, subject to the opinion of the court, upon the following case, yiz.

It was an action of assumpsit brought by the appellee, as indorsee of a proxnissory note, against the appellant, as maker. The declaration contained two counts, one upon the note, stating • ' _ *' it to have been made by the appellant on the 18th of March J 1813, and that he thereby, 9,0 days after date, promised to pay John E. Dorsey, or order, 8760, for value received; that Dorsey endorsed it -to William MiMechen, who endorsed it to the appellee.

The appellant, who was the plaintiff in the court below, on the 14tlj of November 1814, by his agents, Appleton and Poor, sold abale of broad cloths at Baltimore, to the defendants, gave them , i ,íy»í» r j.i a pattern card, containing: a sample cut oil iron one ot the . , , , , , ,, .• i meces of cloth in the bale, and at the same time made out * i ■ „ , —i ’ -i .i . >i j and delivered to them a bill of parcels. 1 he cloths at that ‘ * . time were in Philadelphia, and were…

<p>Appeal from Charles county court. This was an action- ^ . 0f assumpsit. The declaration contained two. counts, one j* J . ior 111011 e7 paid, laid out and expended, by the plaintiff be-(the appellee,), for the defendant, (the appellant,) and other for money lent and advanced. The facts are billy stated in the court’s opinion. The court below, [Johnson, Ch. J.] instructed the jury, that the plaintiff was entitled to recover.. The defendant excepted; and the verdict and judgment being against him,, he prosecuted ... . tillS appeal-</p> <p>cited 1 Esp. t>. <->Ar\ 249»</p> <p>cited Exall vs. Partridge,, 8 T. R, 310. 1 Selwyn’s N. P. 65. Tousaint vs. Mcrt.innanl, 2 T. R. 104; and Morgan vs. Reintzell,. 7 Crunch, 273.</p>

7 J o rendered in that court in favour of the defendant, (the ap- - ' v 1 Pe^ee?) in an action of assumpsit for money had and received, brought in the names of The President, Managers an& Company, of the Hager's-Town Turnpike Road Com™ The general issue was pleaded. 1. At the trial, the plaintiffs read' in evidence the acts agserayiy 0f jgQg5 CJL Q6; 1812, ch. 50, and 1-8Í3, ch. 138.

This was an action of slander. The declaration contained three counts, to which the general issue was pleaded. The only question in the case was, whether the defendant’s having charged the plaintiff with burning Ms, the defendant’s,' barn, was, per se, actionable. These were the words laid in the declaration, and laid without a colloquium.

<p>whsnrfhe «míe. fa located* on'ole veyi“Vthe whoi% be given >in ?ríde¡>«¡ ■‘iionéH it is not itself lo»</p> <p>,con> ,e“ th?n tl,e ^dehee^SmS wwSfSSp tSra”t°f the</p> <p>togaftthe fte'™aSdoai" tym^ln Ane^ñy granted™byh'!$e ryimd‘Z “ «íd by €. to the grantaml tliat the grántor had bar-g?™teed a\v&iC?h« the slit sSafi S- a{í„c^¿y «soto.'jT or by tbe chancellor, to conrey to the grantee “the said tract, as corrected by a stirvtfma^’blt'^, decree of the chancellor, the metes, bounds, cota-ses and didunces bring then ntabliskéd‘ to have and to hold the said ¡tract thereby granted tothe grantee anti li"' heirs,1’ &c. Held, .fchht such deed eonveyed only the quantity of land included within the met™ and bounds, eotHses and distances, estalN ached by the chancellors and -cannot be giyen inevidente uqless located*</p>

The plaintiff in court below, (the present appellant,) in order to obtain an attachment under the act of 1795, ch. 56, exhibited to the clerk of that court the following affidavit, to wit: “State of Maryland, Baltimore coúnty, set.

Ejectment for ° J o four tracts of land, viz. Bachelor's Delight, Felty's tune, Felty's Addition, and Addition to Dearboughl. ' The defendants in the court below, (the now appellants,) took defence on warrant for the three first tracts only, and plots were returned. For the last tract, judgment was entered by default against the casual ejector. 1.

Covenant on a policy of insurance, dated the 29th of September 1809, was brought by tlie appellant against the appellees.

The case is sufficiently stated in the Chancellor’s decree, and in the opinion of this court. ' ' Kilty, Chancellor, (February term 1817.) It appears, from the papers in this, cause, that a petition was filed for a sale under the will of- A. Simpson, by A. Davis, the sent defendant, on which a decree was passed, and the sales thereon ratified, as well as those before made under an erroneous impression; in which last mentioned sales was included the one which is the subject…

Trespass quars. clausum fregit on a tract of land called Jlnlietum Works. The defendant (now appellant,) pleaded the general issue, A warrant of resurvey issued, and plots were returned, 1.

Ejeptment for two tracts of land, one called Enlargement (a), the other ■Brown’s Adventure, lyjng in Baltimore county. . The declaration contained seven separate demises, viz. by Charles Carroll, of Carrollton, Nicholas Carroll, Daniel Carroll, Duddington, and Robert Carter, each for an undivided fifth part, by Abraham Van, Bibber for one undivided tenth paid, by Isaac Van Bibber for. one undivided fiftieth part, and by William Smith for four undivided fiftieth parts.

b* Dorchester county court to remove the proceedings in a criminal prosecution against the plaintiff ip error for misdemeanors.

<p>Appeal from a decree of the orphans court of Cecil . r . county. The case is sufficiently stated m the court’s J N ° opinion. , ■</p>

Ejectment J ' ° for á tract of land called Matthew's Enlargement The ° judgment of the court below was rendered oh the follow - ing casé stated, viz. That a grant regularly issued for the land mentioned in the declaration, and that the title.1 tó said land was regularly transmitted by descent or devise to John Élliott, who died, seized thereof in fee simple, ón the 20th of November 1784.

Ejectment for a lot of ground in the city of Baltimore, being' part of lot No. 50. The defendant in the court below, pleaded the general issue.

county court. Trespassrluure clausum fregit, in a close called Partnership. The defendant, in the court below, (now appellant,) pleaded the }ssue_ The judgment of the court below was rendered on a case stated. The facts are sufficiently detailed in the court’s opinion. Judgment, by agreement of the parties, was entered fos? the plaintiff. The defendant appealed to this court, relied on the act of 1796, ch. 67, s. 13.

Appear from Baltimore county court. Ejectment for a tract of land called Cole’s Harbour. The defendant in the court below, (now the appellee,) took defence on warrant, and plots were made. At the trial of the cause it was agreed between the parties, that on the 1st of June 1700, a tract of land called Todd’s Range was granted to James-Todd, for 510 acres, being a resurvey on a tract called Cole’s Harbour, granted to Thomas Cole the 17th of November 1668, for 550 acres.

'JTyGVCY fbl* J. v (J VLi luí Appeal from Prince-George’s county court, several negro slaves, brought by the appellant against (he appellee. The facts are sufficiently stated in the opinion of this court. The court below, [ Johnson, CU. J- and K&iu A. J.l were of opinion against the plaintiff, and the v. i ,• . . : . 5 , , . . verdict and judgment being against him5 he appealed to this court. v 1 cited 6 Bac. Mb. tit.

Appear from Washington county court. Assumpsit to recover damages for the violation of a contract of the fendant, to deliver a quantity of wheat to the plaintiff, at a particular day. 'The facts are fully stated in the court’s opinion. The opinion of the court bcíow, (Buphanan, Ch. 1 1 \ 5 * ’ . ‘ . . ^ . . and T\ Buchanan, A. J.J was aaamst the piaintin, and the verdict and judgment being also against him, he prosecuted the present appeal.

<p>Appeal from B'altimdre county court. If was an áctioig °* ass^(mPs'^ broúgíit by the appellee against the appellants* was taken for the plaintiff, subject to' the opinion C0lirf:> oil the following frets, viz. The plaintiff in Juty 1303, lent to Yates, the defendant’s intestate, gi'ÓOO, and Yates, soon after,, in the course of the same year, became bankrupt, and was discharged under the statute of' of the United States, and iu pursuance of that statute, transferred his property to assignees regularly appointed according to its provisions,? No dividend was ever made by said assignees among the creditors of Yates. Some time in the year 1815, fates entered into partnership, as an auctioneer, with Hall Ham son, and the plaintiff' became indebted to Yates and Harrison in the sum of §28 15, for commissions on sales at auction; and when the plaintiff was called upon for payment of said debt, he replied, h'é supposed Yates would have charged himself with it, in part payment of the aforesaid money lent by him to Yales, and ,that he would call on Yates oil the siibject. The plaintiff did soon after call, and told Yales he was surprised he had not settled the above debt of §28 15, by charging himself with it; Yales replied, that the plaintiff’s claim on him had nothing to do with the business of himself and Harrison. The plaintiff, however, persisted in his claim, and urged his debt against Yates as a debt of honour, it being for money lent from motives of friendship merely, and oúght to be paid, Yates replied, that he had transferred property to his assignees sufficient to pay this and his other debts. - The plaintiff insisted that his debt ought not to be put on that footing, that it ought to he paid by Yales, and that he would not battle it with his assignees. He also observed, that he expected, in consequence of the dissolution of the copartnership between Thomas and Samuel Hollingsworth, they would have a good deal of business for aft auctioneer, and that he had always employed him, Yates, as an auctioneer, and was desirous still t'o do so, but that he should not do so unless Yates would consent that the commissions should be applied in payment of this debt. Yales said, he thought it hard that his services should he thus applied, when he had assigned sufficient property for the payment of all his debts. The plaintiff replied he had nothing to do with that,, that his debt did not originate in the course of business, but was merely a loan to accommodate Yates, who then said that his partner’s half of the commissions alluded to must be paid, but that his own half should be applied to the payment of the debt he owed the plaintiff; and at the same time directed the above sum of §28 15, due from the plaintiff to him and Harrison, to be charged to himself, and applied in part to the discharge of the plaintiff’s debt, which was accordingly done at the time, to wit, in July 1815.</p> <p>On these facts the county court gave judgment for the plaintiff, and the defendants appealed to this court.</p> <p>relied on the thirty-fourth section of the “Act to establish an uniforin system of bankruptcy throughout the United States(5 Vol. of the Laws of the U. States, 332.) Cole vs. Saxby, S Esp. Rep. 159. LynbUy vs. VPeightman, 5 Esp. Rep. 198. Besford vs. Sdunders, 2 H. Bile. 'Rep. 116. Seouton vs. Eislord; 7 Johns. Rep. 36. Davies vs. Smith, 4 Esp. Rep. 36. Clementson vs. Williams, 8 Cranch, 72. Tlvrupp vs. Fielder, 2 Esp. Rep. 628. 1 Com. on Cont. 163. Rowcroft vs-. Lomas; and 4 Maude fy Selw. 457.</p>

Appeal frorii Montgomery county court. Replevin for two slaves. The appellee whs the plaintiff below. The ^ *■ H ^hmdaiit, (the appellant,) pleaded—1. Non cepit, 2. Property in himself as executor of Kcmp% and 3. Proper-in a stranger.

<p>auitntiyteobiaiS áftéíwa,”<£1' issael the legal estate bel comes vested in the second paten-</p> <p>a deed from a shenffto a vendee, ata sale under a «jfrj “ ^¿adm¿ the vení j^y operation</p>

Ejectment brought in the name of Lawrence O’Neale’s lessee against John F. Bowie, on two demises; one for a tract of land called Twinn, or Trivifer, or Twiforcl, lying in Prince-George's county; and the other for a moiety of the same land. Lawrence O’Neale having died, his heirs and widow were made parties, lessors of the plaintiff; and John F. Bowie having also died, his devisee was made defendant; defence was taken on warrant, and plots made and returned. 1.

<p>Appeal from á judgment in Arine-Arundel county court/ ':l a criminal prosecution'. The indictment charged, that the traverser “on the,” &c. “did assist a negro woman named Nelly, the slave of a certain James Anderson, of,’7 &c. “m eloping and running away from the said James Anderson, by accompanying her a considerable distance, arid showing her the road by which she might escape, thereby depriving her master, the' said James Anderson, of the service ol the said negro slave, contrary to the torm of the ac$t of assembly m such case made aftd provided, and against the peace, government and dig-nitv, of the state.95 ® 1 ’ _ ... - ,® , . , 'I he traverser pleaded not guilty; and at the trial a witness x J Prot*uce“ 011 Par^ °* gbite, who proved, that on (jie night tlie negro left the service of her master, the wit-o O > mjss-and the traverser were together on their way to- the ]10use 0f Qne A. L; that in going they met with the slave mentioned in the indictment, and other slaves; that they accorapanied them some distance, but did not sleep in the woods with them. After the examination of the said witness was closed, the district attorney, in behalf of the state, called another witness, and by her offered to prove, that the above witness had declared to her some time previously, that he did sleep in the woods with the said negroes. To this testimony the counsel for the traverser objected, and insisted, that as the said witness was produced >vy the state, any declarations which he had made out of court, wereiiot admissible testimony on the part of the state. Rut the court, [C7i«se, Ch. J. and Riilgely, A. J.] were of opinion, that the testimony was admissible on the part of the state to impeach the credit of said witness, and permitted the evidence to be given. The traverser excepted. The jury having found the traverser guilty, his counsel moved the court in arrest of judgment—1. Because the act with which the traverser was charged was not forbidden by the law upon which the prosecution was grounded. And 2. Because of the want of certainty in the description of the offence. The county court overruled the motion, and rendered judgment upon the verdict against the traverser for the penalty prescribed by the act of 1796, ch. 67. Fx-omthis judgment the traverser appealed to this coui-t, whex-ethe case was argued before Buchanan, Eaiile, Johnson, Martin, and Dorsey, J.</p> <p>x-efen-ed to the acts of 1796, ch. 67, s. 19, and 1785, ch. 87, s. 6. Gumming vs. The State, 1 Harr. Johns. 840. The Stat. of Westminster, 2nd (AS Bdiu. I.) ch. 31. 1 Bac. Ab. tit. Bills of Exceptions, 528, and note. Jacob’s L. D. tit. 7m-plead. Balter vs. The State, decided in this court at June term, 1806. 1 Thill. Evid. 213, 215. Bull. N. P. 297. 3 Bac. Ab. tit. Indictment, 560, (note;) and The-King Vs. Philipps, 6 East, 464, 472, 473, 474.</p> <p>for the State, cited Peake’s Evid. 135. The State vs. Norris, 1 Hayw. Rep. 439. 2 Inst. 427. 1 Thill. Evid. 213, 215. 1 Chitty’s G. L. 622. 1 Bac. Ab. 528. Tidd’s Pr. 786. Willes’s Rep. 535, and note; and, McNally, 325.</p>

The bill states # ~ _ Ceorge Creager, senior, being indebted to Thomas Burke, ih 81000; on the 1st of May, 1808, executed, with 7 7 J7 7 7 Brengle, the complainant, (now appellee,) as his surety, a j0’ttt and several bond in Burke’s favour; that the interest was paid thereon to the 10th April 1810, and that the complamant had himself paid 8300 of the principal debt.

. two tracts of laud, one called Dorsey’s Search, (the original survey,) and Dorsey’s Search, (the resurvey lying in Jinne-Jlmndd county. Held: possessed, used and occupied, exclusively by the said Dryer, and those holding under him, claiming the same as their property and right; and that the locations made on the plots by the defendant, where they differ from the locations of the plaintiff, are correct, The plaintiff then pyayed the

This was an ac-J • • v ' tion °f assumpsit, instituted by the appellant, (the plaintiff 'n the court below,) against the state, The. decla-ation contained three counts—The first for sundry matters properly chargeable in account; the second for work and labour, &c. and the third a general indebitatus assumpsit for a certain sum of money, without setting out the canse, or consideration upon which the debt accrued.

<p>Error to Anne Arundel county court. This was an action of assumpsit brought against the state. The declaration «contained two counts, one for wórk and labour, &c. and the tether on a quantum meruit for work and labour. The general issue was pleaded.</p> <p>1. At the trial the plaintiff, (now defendant in error,) gave in evidence, that he was, on the 27th of January 1806, appointed and commissioned chief judge of the third judicial district of this state, and that he accepted the said appointment and took upon himself the performance of the duties thereof, after having subscribed a declaration of his belief in the Christian religion, and taken che several oaths required by the constitution and laws of this state to he taken by him as chief judge as aforesaid. That he hath continued to hold the said oSlice, under his said commission, and still doth hold the same, exercising and performing, all the powers and duties thereof. That at various times, and in various cases, since his appointment and acceptance of the office of chief judge as aforesaid, he hath been called upon, agreeably to the provisions of the act of assembly hereinafter mentioned, as chief judge of the third.judicial district aforesaid, and during the recess of the county courts of the said judicial district, to perform and render the several duties required to be performed and rendered by him as chief judge as aforesaid; under and in virtue of the provisions contained in the acts of assembly of 1806, ch. 55, and 1811, c7i. 189, and that he did well and faithfully perform, and render all the said duties, whenever and as often as he was called upon and required so to do. And to prove services to have been rendered by him, under and in virtue of the act of 1806, ch. 55, he offered in evidence the bills, papers, and whole pi’oceedings in the court of chancery, in a number of cases; and thé certificate of the chancellor in those cases, stating that he could not conscientiously act thereon; and also read in evidence the several orders and decrees passed by him in the said suits under and in virtue of the said act of assembly, the complalnahts therein having made their election as stated in the said act of assembly. He also offered in evidence sundry cases depending in the court of chancery, wherein the chancellor requested him to give his opinion upon questions of law arising thereon; and that accordingly, and in virtue of the act of assembly of 1811, ch. 189, he did give an opinion on the said questions, which opinions were read in evidence to the jury; and he proved all the services set forth above to have been rendered by him subsequently to his appointment as chief judge as aforesaid, and to the passage of the laws under which he grounds his claim to be compensated for them. He also offered in evidence the proceedings of the house of delegates upon a memorial preferred by him to the general assembly in the year 1807, allowing, by a resolution passed that house, the sum of §200 to the chief judge of the third judicial district, as a compensation for his services performed under the act of 1806, ch. 55.</p> <p>The state then, by its counsel, offered in evidence, that the plaintiff held the office of chief judge of the third judicial district, from the 27th of January 1806, until a period subsequent to the institution of this suit, under an annual salary of §2200. That from the time of his appoint-meat to the office of chief judge, until after the bringing of the present action, lie regularly received, as it became due, the salary of 82200, so allowed him by law. The state also offered in evidence the proceedings of the senate in the year 1807, negativing the resolution which passed the house of delegates as herein before referred to; and the^proceedings of the house of delegates at December session 1818, negativing the resolution proposing to, allow the chief judge, as a cortipensation for his services performed under the act of 1806, ch. 55, one year’s additional salary. The plaintiff then prayed the court to instruct the jury, that upon the above statement of facts, if the jury find the same to be true, he is entitled to recover. Which instruction the court, [Eidgely and Kilgour, A. J.] gave to the jury, being of opinion, that an implied assumpsit was created on the part of the state, that the plaintiff should be paid and satisfied for the services above stated to have been performed, if proved to the satisfaction of the jury; and that it was the province of the jury to determine the amount of such compensation. The state, by its attorney, excepted,</p> <p>2. The state, by its counsel, then prayed the opinion of the court, and their direction to the jury, that the plaintiff having held the office of chief judge of the third judicial district from the time of his appointment on the 27th of January 1806, until after the institution of this suit, under an annual salary of 82200, which he admits to have been regularly paid to him, is not entitled in law to any additional compensation from the state; and that the services, of which'evidence has been offered, constitute no consideration from which an assumpsit on the part of the state can be implied; and that therefore he is not entitled to recover in this action. Which opinion and direction the court refused to give. The state, by its counsel, excepted.</p> <p>3, The state, by its counsel, also prayed the opinion of the court, and their direction to the jury, that as the act of 1805, ch. 65, which passed prior to the plaintiff’s appointment as chief judge of the third judicial district, and under which he holds his commission, required him to hear and determine all cases in which the chancellor might be interested; and the case of Kilty and Simmons against Lane and others, and Kilty against the heirs of Brown, were cases of that description, the plaintiff was bound to hear and determine them without being entitled to any allowance therefor in addition to his annual salary as chief judge of the third judicial district; and that the services rendered in hearing and determining those cases,, constitute no consideration from which an assumpsit on the part of the State can be implied, and that consequently the plain-: tiff is not entitled to recover any compensation therefor, although the chancellor had certified to the said chief judge that he could not conscientiously act thereon. 'Which opinion and direction the court refused to give. The state, by its counsel, excepted. Verdict for the plaintiff for £3000 current money damages. Upon which a judgment was rendered for the plaintiff; and on which judgment the state brought a writ of error, returnable to this court.</p> <p>for the state, contended—1, That no action could be maintained against the state, in cases of this description, under the act of 1786, ch. 53, which act, they contended, authorised suits against the state only where claims against the state could not be settled and adjusted with the auditor general, by reason of a disagreement between the claimant and the auditor, as to the sum to be allowed, They referred to the preamble of that act, and also to the resolutions of Eebruary 1777, No. 1, March 1778, No, 1, and 1790, No. 8, defining the powers and duties of the auditor general,</p> <p>% That the legislature had a right to impose new and additional duties and services of a judicial nature upon the courts and judges after their appointment; that it had a right to repeal, inodify, or change the law of the land, whether the burthens of the courts or judges were lessened, added to, or varied, or not; and this in regard to all the objects of the law, criminal, common law or equity law. They referred to the Decl. of Eights, 3d sect. Const. 10th and 11th sect.</p> <p>3. That the duties enjoined upon the chief judge of the third judicial district, or upon the county courts of that district, by the acts of 1806,' c/r. 55, and 1811, ch. 189, being judicial pou>ers, could rightfully be imposed upon tbe judges or courts of the several districts. They referred to the acts of 1723, ch. 12; 1774,c/i. 28; 1763, ch 23, s. 5; 1785, ch. 49; 1791, ch. 78; 1792, ch. 63; 1814, ch. 55; 1814, ch. 94, and 1816, ch. 193, s. 16. Whetcroft vs. Dorsey, 3 Harr. %• M‘Hen. 357. Johnson vs. 77ie State, Ibid 223, Haybitrn’s case, 2 Dali. Rep. 409.</p> <p>4. That the legislature might impose local and peculiar judicial duties upon any particular court, or a particular judge of any court. They referred to the several acts of assembly requiring the county courts, bordering upon the Potomac, to take cognizance of abuses practised upon the navigation of that river; the county courts bordering upon the Susquehanna tp take cognizance of encroachments upon the fisheries, &c. and of Baltimore county court, in a peculiar manner, administering the ordinances of the city of Baltimore; also the acts of 1796, ch. 68, s. 9; 1813, ch. 126, s. 2; 1814, ch. 94, p. 3/1815, ch. 215, s, 2; 1816, eh. 151, s. 1, and 1817, ch. 148, s. 6,10,</p> <p>5. That no services, especially judicial, which the legislature could rightfully exact of any court or judge, a permanent salary being established for the judges, could lay the foundation of an implied assumpsit on the part of the state, that any other or further compensation should be, or ought in law to be paid. They referred to the fleet, of flights, 30th sect, and the act of 1805, ch. 86,</p> <p>6. That, supposing there were no other objections, there was nothing in. the nature of the duties, or of the burthen? someness of the services, or of any other circumstances connected with this controversy, which entitled the defendant in error tp expect or demand additional compensation. They referred to the act of November 1779, ch. 24, s. 4, where duties similar to those imposed by the act of 1805 ch. 55, s. 1, were cast on the general court, which law was acted under in Quynn ys, Staines, 3 Harr, and MlHen. 128; and opinions given by that court, when requested by the chancellor, qs in Ridgely vs. M‘Laugklin, 3 Harr, and M'Hen. 220. Russell apd Lux vs. Falls, Ibid 457. Ridgely vs. Howdrf fbid S2f. Chcston vs. Page, 4 Harr, and MlHen. 471. Land Hold, Jlss. 384,403. Clarke vs. Ray, 1 Harr, and Johns, 318. Manro ys. (fittings and Smith, Ibid 492. Loioe vs. Maccubbin, Ibid 550. They also referred to Chandler vs. The State, (ante 284, J</p> <p>7. That under the third' bill of exceptions, the services, alleged to be performed by the defendant in error, were under the act of 1805, ch. 65, s. 19, which passed prior to his appointment, and consequently he accepted the office-with a knowledge, and therefore the implied assent, that he would be called upon to perform those duties.</p> <p>contended—1. That under the act of 1786, ch. 53, this action might be sustained against the state, that act, they contended, was general, giving the right to, all descriptions of persons to proceed under it. They referred^» 19 Fin. ,3b. tit. Statute, 51% 520, 522,528, as to the rules to be observed in the construction of statutes. The act oí 1786, ch, 49, s. 4. And to. show that under the act of 1786, ch. 53, similar suits had been, brought against the state, they referred to Nicholson vs. The Slate, 3 Harr, and MlHen. 109. Tschudy vs. The State, 3 Harr, and M-Hen. 1. Dugan vs. The State, in 1790. Dorsey vs. The Slate, 4 Harr, and M‘IIen, 165. Clarke vs. The State, in 1788. Chase vs. The State, in 1810. Green vs.. The Slate, in 1810; and the act of 1799, ch. 79, s. 7.</p> <p>2. That the acts of 1806, ch. 55, and 1811, ch. 189,. imposed duties on the defendant in error which were not imposed on any oilier judge, and which he was not bound, to perform, having been imposed after his appointment; but that having performed them, he was entitled tobe compensated therefor. They cited Chandler vs. The State, per Johnson,, J.</p> <p>3. That it.was not contended that the defendant in error could claim compensation for any services performed by him under the act of 1805.</p>

Tlie general issue was pleaded. At thé trial below, the plaintiff (now appellant,) gavé id evidence, that on the 12th of March 1816, án account was stated and agreed to between the plaintiff and defendant, stating the nett proceeds on the áalés of four hbgsheads of tobacco, sold by the plaintiff for the defendant in • x .

°* raised two ques-Had |.]ie complainants (now appellants,) a right r ■ . . . . ... r_? J to redeem a mortgage executed m 1754 under a bill tiled * ° ° • *n 1309? And, 2.

<p>A'"’r,t of errOT</p> <p>t,>anscril)t <>f of the clerk ami seal of the court,</p> <p>with the writ of error annexed, is a legal ant] sufficient return to such writ of error*</p> <p>‘ The offence of conspiracy is of common law origin'; ant] not restricted or abridged by the statute 33 Edward I. • ‘</p> <p>A conspiracy »o do any act that is criminal per se, is an indictable offence at common law.</p> <p>An indictment will Ite at common laws 3. Tor a conspiracy to do an act not ill--gai, nov punishable if done by an indvidual. but immoral only, ■ 2. For a conspiracy to do an act neither illegal nor immoral in an individual, but to effect a purpose which has a tendency to prejudice tin- public 3. For a conspiracy to eytort money fn'pi auofhei, or to injure his reputation by means not indictable if practised by an individual, as by verbal dt famatims, and Unit whetheru be to charge him with an indictable offence or nfit. 4. Tor a conspiracy to cheat'and defraud a third person* accomplished h\ means of an act which would not in law amount to an indictable cheat, if c-ffi eted by an individuar. 5. Tor a malicious conspiracy to impoverish or ruin a third ptV'On in ]ns trade or profission. 6. For a conspiracy to defraud a third person by means of an act not per $e unlawful, and though no person be tin re-by injured 7 For a have eonspuai*> to cheat or defraud a thfrd person, though the miaos of eff.-cting at should not be determined on at the time. 8. A conspiracy is a substantive offlfice, and punishable at common law, though nothing be done in exeeu'ion of it.</p> <p>In a pvoseeutidn’for a-conspiracy, it is sufficient to state in the indictrhent, tbe conspiracy and the (Object of it: and iho me ans b\ whu h it was intended to be accomplished need not be si t out.</p> <p>'• Every conspiracy to do an unlawful act, or to do a lawful act for ai» illegal, fraiiduU nt, malicious, or corrupt purpose, or for a purpose which lias a tendency to piejudiee the public i/i gentraí, i» at com. inon law an indictable offence, though nothing be done m ’ execution orit,/and no matter by whit means the conspiracy was intended to be effected; which may be peifectiy nidifies ent, and makes no Ingredient of the crime, and therefore need not he stated in the indictment.</p> <p>- Our anvestms brought with them the laws of t]ie mother (jountr), so far at least as they were appli* cable to their situation, and the condition of an infant colony.' T hi y-wore in the piedicane-nt of a. people discovering and planting an uninhabited country.’ -And if they brouitfif v ah then, the common. }aw of conspiracy, they brought it as it is now settled and known hi England. It is to judical decisions that we are to look for the evidences of the common law, ' '•</p> <p>• The third section of the Bill of-Rights has reference to the common law' in mass, as it existed here, either potentially, or practically, and as it prevailed in England at that time, except such portions of it as are inconsistent with the spirit of that instrument, anil the nature ofournetv political insuttuions;. and it cannot be inconsistent with,-or repugnant to the spirit and principles of our institutions, to correct the moials and protect (he reputation, rights and property of individuals, by punishing con upt combinations fajsely to rob another of his reputation, maliciously to ruin him m hw business, or fraudulent^' to cheat hint of his property. < •</p> <p>¿a indictment haying two counts, the^Vvi charging the defendants with an executed conspiracy, falsely, fraudulently and unlawfully* l>y wrongful and indirect means, to client, defraud and impovej'Hi the President. Directors pud Company of the Bank of the United Siatr&i and the second charging them with a conspiracy only, falsely, fraudulently and unUiwiell), by wrongful and indirect means,to cheat, defraud and im novel ish the 1 resident. Directors and Company of the Bank of the United States; —wheie one of the deft ud.mts was the pr« sident of the office of discount.■ and deposit of the mother hank, another thV cashier of that office, and the other a directo** of the mother bank—Rthly that the mutter charged in ea<h count m the indictment constitutes a punishable conspiracy at common lawj, and ‘hat that porúon of the common :a\v is in force in this, state.</p> <p>Under the constitution oí the United Slates ihe conns of this state have jurisdic.ion of the offence charged m the above indictment.</p> <p>On the reversal of a judgment rendered m favour of Ike traversers in a criminal prosecution,a pran, ccdendo was awarded directing a new trial.</p>

<p>Appeal from the orphans court of Queen-Jlnne's county.</p>

The facts stated in the bill which was filed, by the appellee against Nicholas S. Jones, -• J 11 0 , (the appellant)) Mary Brown, the Trustees of James Jtlston and the President and Directors of the Mechanics 7 . • . t - , ®an^c °f Baltimore, were, that the appellant^ and David J°nesi being merchants, and in copartnership, became in-' debted to the appellee in the sum of glO, 896 73, for which %eJ Say9 dieir bond, Suit was instituted on'the bond, and in 1812 judgment was…

. - . . , > j , . . equity. Tliis was an uilormation and bill of complaint tiled , i , „ 1 m the name of the Attorney General, at and by the rela- , * ’J * f tJon 0f the trustees of Hillsborough school in Caroline and the vestry of Saint Peter*s churcli in the °f Baltimore, and the trustees of Saint Peter’s school the said city, oh the behalf of themselves and of Peter Éumué, &c. poor children belonging to the congtogatioii Protestant Episcopal Church in the city of Saint…

This was an ac- . * tion of trover brought on the 10th of March 1818 by the appellant, as provisional trustee of F. A. Abbott, an insolvent debtor, against the appellee, for two promissory notes.

This was an ,. r , _r,. , ' action ox covenant. I he declaration stated, that by an , . * indenture oí writing, entered into on the 22d of July 1817. , * ~ J • 7 between the defendant, (now appellant,) and the plaintiff, (l^le aPPG^ee») the defendant did, in consideration of the 9um >3750 to him paid by the plaintiff, bargain and sell unto ^le plaintiff sundry negroes, to wit, negroes George, &racQ> Joseph and Eliza, and did thereby warrant and de*eIu^ said negroes to the…

Debt brought oil the 4th of May 1818, in the name of the State, at the instance of T. Harris, and for the use of J. Murray, bn the blind executed on the 23d of November 1811, by William Merryman, as sheriff of Baltimore county, with Caleb and John Merryman as his sureties. The bond was in due form, and was approved by the orphans court of the county on the day of its date.

Ejectment for-two lots Qf ground in the city of Baltimore, numbered 398. ail(t 399., The general issue was pleaded. At the trial it was admitted that the lots in question were a part of a tract of land called Mounienay’s Neck, regularly granted in the year 1663, and that the title of the lots had been regularly transmitted to William Frost, who being a British.

Debt on a bond* The declaration contained two counts—The first was in t]ie usual foi'm; and the second as follows, viz. “And . whereas the defendant, (now appellant,) by another writ- ' _ T {nfi. obligatory dated the 28th day of January 180S,- sealed with his seal, acknowledged himself to be held and lirmly bound unto the said George Rea in his life time, in another of SS2°0 current money, to be paid unto the said George Rea, his heirs, executors, administrators or assigns-,…

This was an action slander, brought’ bv the now appellee against the anPe^an^* declaration, after the usual introductory W01'^s bi actions of slaiifler of the plaintiff’s being a go.od, honest and faithful citizen, &c. stated, “and where» the plaintiff bad been nominated. by the president of United Slates, to, tl\e seu.ate thereof, fin* the office of commissioner of claims, &ci ■ Yet the defendant well the premises, but contriying, and wickedly and maliciously intending to…

<p>Appear.from the Court of Chancery., It appears by the record that at September term 18.13,. the seven children of Doctor C. A. Warfield, by their petition to the chancellor, , , ’ prayed that a commission might issue to divide, them the real estate of the deceased. The petition stated * the death of Doctor Warfield, and that the petitioners.were his heirs. On the same day the chancellor passed a decree for dividing the lands into seven equal parts; that is, among all the children, and a commission issued accordih-gly. Afterwards a letter from the commissioners t<A Richard Snowden, who bad .married one of the daughters, of Doctor Warfield, was filed, in which they decline executing the commission,, and assign as their reasons, that they were directed to divide into seven equal parts the land only of which Doctor Warfield died seized, without, any mention of the lands deeded to Henry R. Warfield,. and. Samuel Thomas, (who had married one of the daughters.) ' 1 \ ’ 0 ' which if divided without those lands being taken in, would, n0* efí*ec^ Ike object tlie parties had in view. They thereiore recommended an alteration of the commission, &c. Whereupon the chancellor passed an order,, saying the decree could not be altered, and suggested another mode. of proceeding, viz,. That if the persons advanced state. their agVeement, and join in a petition with the other par-, ties, a commission might be framed accordingly, otherwise the- parties not advanced might petition, making the others. defendants, and calling on them to make the election: and . . *1,1 _ that the petition might also pray that the former decree. * 0 1 J , should be set aside, In January 1814, the bill, m the case court, was filed against Henry R. and now before the Touisa Warfield, by the rest of the children. This bill, Staies the death of Doctor Warfield, intestate; that he left seven children; that he conveyed certain lands to Samud Thomas, one of the complainants, who married one of his. daughters, and certain other lands to ílenry R. one of the, defendants; that these conveyances were made as advancenients; that Samuel Thomas is willing to bring his part . 7 , ,. J rr -rj i ¶ , ° . 1 hotchpot: that Henry it. had agreed at one time to . . •a ° , °rril§ Par^ in^Q hotchpot, and with thatviewthe petition kirst mentioned had been prepared and agreed to by all the. and the business entrusted to-him as counsel. Q]}ildren v Tke kill also states the proceedings, on the first petition; tkat the complainants were advised that no commission to divide could issue until Henry R, should make his election whether to bring his land into hotchpot or not. The bill prays that no further proceedings may be had on. the former petition; that the decree may be set aside, and the petition dismissed. It then proceeds to state, that the defendants .... , ’ kave re‘use“ to j0111 ln “le second application; that Henry R, has refused to make his election, and prays that he maJ” ke compelled to make his election, and that commiss^on 113‘U’ issue to. diyide the land into seven equal parts, if commission issued, testimony was taken under it and re turned, and the cause submitted to the chancellor. he elects to come in, and into six if he refuses. The anawer of Lovisct Warfield is not material to the point in dispute. The answer of Henry II. Warfield admits the proceedings on the former petition; he thinks it was the 1 ® , . proper mode oi proceeding, and assigns his reasons; but *" 1 r ° ° does not elect to bring m the part conveyed to him, and does not refuse to bring it in, but insists that he has a right to elect after the commissioners make their valuation.. A</p> <p>Kilty, Chancellor, (December term 1816.) The man, per proposed by the answer of the defendant, II. II. War-field, of making the partition and election, is not, in my opinion, sucli as he is entitled to; and considering the claim of his right thus set up as an election not to bring the conveyed to him.into hotchpot, it is adjudged proper to divide the estate amongst the other heirs, including therein the part conveyed to S, Thomas—Decreed, that" the defendant, II II Warfield, be precluded from all participation in or share of the real estate of C. A. Ifarfiield, deceased, in the proceedings mentioned; and that the real estate of C. A. W'arfield, deceased, of which lie died seized, including the land conveyed by him to the complainant, (S'. Thomas, be divided into six parts, and that commission issue, &c. From which decree the defendants appealed-to this court; and at June term 1818, the cause was argued before Buchanan, Johnson, Martin, and Dorsey, J,</p> <p>contended, that the chancellor ought not to have passed the last decree while liis former decree was in force, and the cause still pending on the former petition. They cited 2 Madd. Chan, 856, 357, 408- Cooper’s Plead. 88, 269, 272; and Hollingsworth et ux vs, MlDonald et al. in this court, at December term 1807,</p> <p>contended, that the first was not a decree to be enrolled, but ivas merely an order. They cited Cooper’s Plead. 266,268, 2 Harr, Chan. 327. 2 Aik. 383,</p> <p>The appellants’ counsel dismissed the appeal, on the suggestion of the court that an amendment to the proceedings plight be had in the court of chancery, so as to bring th-o true and real point in controversy fully before them, as coni nected with the question as to the period at which the va». Ration of the advancement to H. JR. Warfield was to be; made.</p> <p>in July 1818, by his peti-. tion to the chancellor, states, that by the decree ofDecember 1816, his answer is considered ‘‘as an election not to bring the part of his late father’s estate, as conveyed to him, into hotchpot,” and therefore he is by the decree precluded from all participation in the real estate of his father. That this view of his answer is one which he was. mot aware could be taken of it, for he always was ready, and'now is ready and desirous to bring his said part into hotchpot, claiming to bring the same in at the value if was. when conveyed to him. He therefore prayed the chancel-, lor to permit him to answer further,.and tq state, that he does elect to bring into hotchpot his advancement received from his father at tjie value of the said advancement atth.e. time he received it. That he had dismissed the appeal, which he prayed from the interlocutory decree, and,there had not been any return of the coinmission, to make partir tion, issued under that decree, &c..</p> <p>Kilty, Chancellor, (December term ,1818.) A petition/ Vas filed on the 1st of July 1818, by H. 11. WarJ.eld, one. of the defendants, for permission to answer further in the cause, and to state, that he does elect to bring into hotchpot his advancement in the manner therein mentioned. Which petition came on to be heard at the present term, and was argued by counsel on each side. It appears, from, the proceedings, that a decree was passed at December, terra 1816, for a division of the real estate of C. Jd. War-field, deceased, into six parts, excluding the defendant II. JR. Warfield, for the reasons therein assigned.. During the same term two depositions were filed on behalf of the defendant, and admitted by the opposite counsel to be received in, evidence. They related tff. the improved value of the land conveyed to him by C. JI. Warfield in 1797; and on motion and on hearing, the court decided that the decree should remain unaltered. An appeal was made from the-decree to the court of appeals,, which the petitioner states, that lie dismissed, as was admitted in the course of the argument. On the dismissal of the appeal, a commission isjsSBed in pursuance of the decree, which has been executed and returned since the filing of the present petition, and no exceptions have been made thereto, except so far as the petition may be so considered. On that part of the petition, for permission to put in an amended answer, it is to be observed, that the practice of the court is less strict than it is in England, and that a discretionary power is exercised to meet the merits of the case, whenever it can be 'considered open or liable to be opened. In the case cited, of Weems and O'JReilh/, and in that of Boyce and Gassaway, I did not discover any certain rule to be drawn front the English practice; But I incline to the opinion, that the interlocutory decree in this casé might be opened, if the answer preferred was such as the merits of the case required. The permission might, however, have been subjected to the terms respecting the intermediate costs, so ás to include those of the execution of the commission; But I am of opinion, that the kind of answer proposed in the petition is not such as to meet the merits of the case, hr to call for the interference of the court, more especially áfter the declaration contained in the decree, and the intimation of the sentiments of the court of appeals. The answer proposed in the petition, is somewhat different from the one filed before by the same defendant, but does not appear to be a proper answer to the petition under the act to direct descents. Tt is an election made subject to á proviso or condition, and necessarily implies a refusal to élect, without a compliance on the part of the court with that condition, according to the maxim, that “expressio unins est exclusio alteriusI do not recollect any case ill this court, in which the fifth section of the act to direct descents, 1786, ch\ 45, which provides “that any qhild or children of the intestate, or their issue, having received from the intestate any real estate by way of advancement^ ihay elect to come into partition with the other parceners, on bringing such advancement into hotchpot with the estate' descended; but such child or children, or their issue, shall not be entitled to claim a share by descent, without-bringing such advancement into the common stock, or hotchpot, if there be any child or children unprovided for,” was acted on, except that of Sprigg and Sprigg, cited in the argument, and I shall therefore state my views of that part ef the law connected with the common law. In England, parceners were only by common law or by custom. By common law they could not be such otherwise than by descent. And only females could, in the first instance, be parcener's, (making together but one heir,) becáúsé in case of a son the land descended to him alone. The act of. 1786, ch. 46, was passéd in order tó change the course of descent, and by directing it to bé to the children equally, it in effect made them all parceners, and they áre so called in the jrflh section-. It is to be presumed that the framters of the act were familiar with the law as to land received in irank-marriage* and that in 'creating parceners of a new kind or by statute* they saw the necessity of permitting such of the co-heirs, as might havé received any real estate by way of advancement* to come into partition, on bringing such advancement into hotchpot, and of excluding them from a share by dissent if they did not bring such advancement into the common stock or hotchpot. Therefore, although gifts in frank-marriage had fallen into disusé in Érigland, ás stated by Blackslo'oc, yet in a provision for the division of lands, thé formér doctrines, applicable to these gifts and coparcenery of land, ought to be used in the Construction of this act, and not those (where they differ,) applicable to the British statutes, and our own acts, for the distribution of the personal estates of intestates. It is láid down by Lord Coke, that when thé lands are put in hotchpot* and the valué of each are known* the donéés shall retain the land given in frank-marriage, and shall have so much of that ih fee descended, as will* together with land given in frank-mafriáge, niake their share equal to that of the other parcener. It is also laid ¡down by the same' author* that it is clear that the valué shall be according as it was at the time of the partition, assigning his reasons therefor* According to this authority, the condition on which the defendant’s election is, made to depend, is not such as the law entitles him to. But supposing it doubtful, or that the valué ought to be according as it was át tlie time of the gift or advancement, yet it is á point on which the court is not obliged to decide at thé present state of the proceedings. The provisions of thé Jiftii section of the act are fot* the benefit, of a co-heir who liiay have received real estate by way of advancement of less value than any one of the parts descending to the other heirs,' They cannot force him, but he may elect to chine into partition with the other parceners, on bringing such advancement into hotchpot, &c. And here I have to observe, that I do not comprehend the distinction made between the words “advancement and estate,” in the answer filed, and in the argument of the defendant. I am off opiniou, that the person so disposed, must elect to come into partition, &c. in the words of the act, or to the samé éffect, leaving for further inquiry and decision the manner of proceeding as to the issuing of the commission, and the manner of valuing and dividing, ivhich are open to exception, and of course to the decision of the court thereon. The condition required in the answer filed, and in the one proposed to be filed, would amount to a negotiatioii with the court, which is not the usual mode of proceeding. And therefore, in making the decree in 1816, as the condition could not be complied with by the court, I considered it as an election not to bring the. part conveyed into hotchpot, or as it might have been moré accurately expressed, as not making ah election to bring it in. Although the Condition is now varied in terms, it amounts in substance nearly to the sanie thing. And the defendant comes under that part of the law which declares that such persons shall not be entitled to claim a share by descent, without bringing such advancement into hotchpot. The ground of my refusal to grant the petition is, that if an answer, such as is proposed therein to be made, was regularly filed in the cause, I should not consider it as an election to come into partition, and' should decree on it as I did on the first answer. It was urged in argument, that the defendant would be barred of relief if the amendment was not allowed, on which the main question could be fairly brought out and finally settled. This remark would have weight if the amendment was such as ought tobe offered or ought to be received, but as it is, the consequence, whatever it may be,'will be brought oh by the defendant himself. He has had full time for consideration, and has had the opinion or intimation of the court of appeals. He has availed himself of Ms own professional knowledge, in addition to the advice of Ms counsel, and in lieu of one condition or requisition, he has only substituted another, liable to the same objection. The commission has been executed and returned, and an allotment of thé six parts agreed to by the parties, excepting the defendant, H. JR. Warfiüdj and the permission to put in the answer proposed therein riot being granted, ;a final decree will be made'. Decreed, that the return óf the 'commissioners, and the division by them made, be and the same is hereby ratified and confirmed. Also decreed, that Richard Sñoibdén shall hold in severalty in right of his wife Eliza, who is deceased, and not jointly with the other parties to this shit-, all that part of the said real estate distinguished on thé plot* arid the return of the commissioners, by the number oti'é, fréé, cléár* anddistehárged from all claim of the other parties to this suit. And, &c. &c. Prom this decree the defendánt H. R. Warfield appealed to this court. ,</p> <p>1. The appellant ivas not bound to bring in the land itself given to him by his father* but the value of it, such as it was at the time he received it 2. He was entitled to make his election ih that form, and was not bound to make his election in general terms, 3. The chancellor ferred in excluding the appellant from the partition on his answer, in which he claimed the right to decide at a future time/ 4. The chancellor ought to have allowed the appellant to amend his answer as he proposed in his petition. On the first point, they1 referred to the act of 1786, ch. 45, s. 5. 3 Bac. Ab. tit. Executors and Administrators* (K) 76. Kircudbright vs. Kircudbright, 8 Fes. 51. 2 Blk. Com. 190. On the fourth point they referred to Rbycé vs. Cassaway, December 1818, and Weems vs. O'Reilly, October 1819.</p> <p>Í. The appellant, by not electing whether or not he' would bring his advancement into hotchpot, thereby refused to elect. 2. The land itself ought to have been brought inj and if not, then the Value thereof at the time of the- partition. They cited 3 Jacobs1L. D. tit. hotchpot. Co. Litt. s, 273. The' acts of 1715, ch. 39, s. 4,5; 1798, ch. 101, sub ch. 11,. s. 6. Toller on Executors, 176. They also contended that no appeal would lie from the refusal of the chancellor to permita defendant to amend his answer.</p> <p>Curia adv. vult.</p>

Appeal feom. Kent county court The plaintiif below, (now appellee,) brought an action on the case against the defendant below,, (now appellant,) for obstructing a right of way-, &c. The declaration stated, “that whereas the. p^inti'íí, beforehand at the time of the committing of the., grievance by the defendant as- hereinafter mentioned, was, and-from thence hitherto-hath been, and still is, lawfully possessed of a-certain farm and plantation, with the appur* tenances…

<p>Appeal from Cecil county court. The cause was argued before Buciianan, Martin, Dorsey, and Stephen, J.by</p>

<p>Appeal from Worcester county court. This was an action of assu npsit, brought in the names of The President 'and Directors of the Farmers Bank of Somerset and Worcester, (now appellees,) against Whittington, (the appellant,) as the indorsor of a promissory note drawn on the 25th of February 1818, by R. J. II. Handy, ami payable 60 days after date to J. C. Handy, or order, for $5790, and endorsed by J. C. handy to the appellant, or order, and by the appellant endorsed to the appellees. The note Was made negotiable at The Farmers Bank of Somerset and Worcester', and payable at the house of J. P. Dvffi&ld, in the town of Snoia Hill, The declaration was in the usual form, stating the manner in which the note was drawn, and the endorsement thereof by J. C. Handy to the defendant, and that he endorsed the note, “his own proper hand being thereon subscribed, and by that indorsement appointed ths con*®hts of tlie said note to be paid to the said Farmers Bank of Somerset and Worcester, or its order, for value of it received,” &c¡ Th~e declaration averred, that on the 29th of April 1818, at the house of J. P. Duffield, in the town of Snow Hill, the said Farmers Bank of Somerset and Worcester presented the note, with the endorsements made thereon, to R. J. Id Handy, and requested payment', &c. and on the same day at the said house gave notice by S. ÍI. the proper servant for that purpose of the said Farmers Bank, &c. that the said note had become due, and exhibited the said note, &c. and inquired for the defendant for the purpose of demanding payment, &c. The defendant having been ruled to plead, at the third term after the action vims brought, viz; May term 1822, “suggested to the court that there is no plaintiff in court, And that the corporation known by the riame and style Of The President and Directors of the Faimers Bank of Somerset and Worcester, is dissolved and dead, and that there is no such body corporate in beipg; and the said Whittington saitli, that the said writ and declaration, and the matters therein contained, are not sufficient in law to compel him to answer to the said writ and declaration, to which said writ and declaration the said Whittington is under no necessity, nor in any wise bound by the law of the land to answer. And the said Whittington defends the force and injury when, &c. and saiih,” &c. pleading the general issue, and exhibiting an account in bar, being for 100 shares of stock in the said bank of 85000, and the profits and dividends thereof. Issue was joined.</p> <p>1. The defendant, on the third day of the court, (May term 1822, being the third term after the’ action was brought,) made a suggestion upon the record, that there is no plaintiff in court, and that the corporation, which appears as-plaintiff, is dead, and that there is no party in court authorised to act as attorney for the said nominal plaintiff; and offered to prove the same by the charter, and proceedings-in the said bank,'and acts of assembly. But the- court, [Martin, Ch. J.3 was of opinion, and so decided, that no dilatory plea could be received, unless the fact upon which that dilatory plea was founded occurred subsequent to the second day of this term, at which time the. rule to plead expired. The defendant excepted.</p> <p>2. The plaintiffs at the,trial offered in evidence the promissory note mentioned in the declaration, after the signatures of the drawer and endorsers had been, proved, to, which the defendant objected, on the ground that it did, not appear from the note that the same had been protested according to law;, which objection was overruled by the court. The defendant-excepted.</p> <p>3. The plaintiffs, after having read in evidence the promissory note above mentioned, offered in evidence a protest of the said note, made on the 29th of April 1818, at the request of The Farmers Bank of Somerset and Worcester, by a notary public. To which the. defendant objected, on the grounds that the said protest appears to have been made at the request of The Farmers Bank of Somerset and Worcester, instead of The President and Di■rectors oj the Fanners Bank of Somerset and Worcester. The objection was overruled. The defendant excepted.</p> <p>4. Evidence having been offered to prove that the following order was entered upon the proceedings of the board, of directors, of the Farmers Bank of Somerset and Worcester, on t!;e 24th of October 18IT, to wit: “On motion, Ordered, That a call bo made on all the debtors of this institution, of ten per cent, and giv.e a.privijege to them to surrender stock of the .institution, at the rate allowed to stockholders in paying the last instalment, of all or any part of the debts due the institution., This order to operate on all notes becoming due after the first of December next;” which order appearing upon the record of proceedings of the board of directors, and it not appearing from the said record that it had been rescinded at ahy.time subsequent to the 24th of October 1817; and it having appeared in evidence, that the defendant was possessed of. 100 shares of the capital of said bank, of the value of §50 per share, and that he had made a tender to the board of directors to comply with the terms of the order, on the 18th of July 1821, which tender and proposition are as follow; “July 18th, 1821. It is ordered and agreed by this board, that the president and cashier be authorised to settle and adjust the claim of this institution against ff. Whittington; and if the said Whittington has or shall procure stock or notes of this institution, or stock or estate in the ■property formerly belonging to The Union Company, that the same, or any part thereof, shall be accepted and received in- discharge of his debt to this institution a,t par, to the amount thereof, which may be transferred or delivered to the institution. ” Upon said tender and proposition appears the following endorsement; “Rejected as to the manner of payment.” The defendant then moved the court to instruct the jury, that forasmuch, as the said order appears upon the proceedings of the said board of directors in writing; an.d forasmuch as it does not appear; in writing, among the proceedings, of the said board of directors, that' the said order had been rescinded at any time subsequently to the 24th of October 18X7, that therefore parol evidence cannot now be’introduced to rescind and annul the-said written order; and that the defendant is entitled to an allowance of any amount of stock which he may. possess in the Farmers Bank of Somerset and Worcester, as an account in bar against the amount for which this suit is brought, under the said order of the said board,' adopted on the 24th of October 1817., Which direction the court refused to give; but were of opinion, and so directed the jury, that if they should believe from the evidence, that the order of the 24th of October; 18.17 was passed by the president and board of directors, that so long as that order was in force and unaltered, the defendant might tender-stock in payment of his debt to tire bank'; but if the said order was rescinded or annulled by the president and board of directors, consisting of at least five directors and the president, by a parol order, that the president and directors were not compelled to receive the said stock in payment of the defendant’s debt, after the rescinding the order as aforesaid. The court were also of opinion, -that if there was an order made by the president and directors to rescind the said'order of the 24th of October 1817, and no minute in writing or memorandum made of the same, -that it may be proved by parol evidence. The defendant excepted.</p> <p>5. .The defendant then moved the court to instruct the jury, that no parol evidence can prove the rescinding of the order of the 24th of October 1817, before mentioned, unless such evidence establishes the fact, that the said order was rescinded by the board of directors at a regular meeting of the said board, atjAie ordinary place of meet-. ing of the board, consisting of the president ind not less than five directors; and also that such parol testimony should show the day- and year on which the said order had been so as aforesaid rescinded. Which the court refused to give. The defendant excepted.</p> <p>6. The defendant then prayed the court to direct the jury, that they should make any deductions or allowance from the amount claimed by the plaintiffs, by reason of any .money or funds or slock, which may be in the hands of the plaintiff's, belonging to the defendant; and that the jury shall make deductions from the amount claimed by the plaintiffs of money, funds, stock or. credits, belonging to the defendant, in the hands of the plaintiffs. Which direction the court also refused to give; but were of opinion, and so directed the jury, that if they believed from the evidence that the defendant had money or other funds in the bands of the plaintiffs, that they pught to deduct the' amount of such money or funds from the plaintiffs’ claim; but the defendant cannot, in this action, set off against the claim of the plaintiffs any stock he may have in the Bank of Somerset and Worcester, unless the jury shall believe from the evidence, that the order of the 24th pf October 1817, before mentioned, is still in force, or the said stock was rendered by the defendant to the plaintiffs in payment during the time the said order was in force, and before it, was rescinded. The defendant excepted,</p> <p>7. The defendant then prayed the court to instruct the jury, that under the general issue pleaded in this action, • the plaintiffs must show that they, are a body corporate; Which instruction the court refused to give. The defendant excepted.</p> <p>8. The defendant then moved the court to instruct the jury, that although the promissory note given by the defendant, as exhibited in evidence, is evidence of so much money being in his hands or possession as in the promissory note is specified, yet that the defendant may retain the same in equity and conscience, though not at law, provided they were satisfied from the evidence, that the plaintiffs have in their hands or possession, money, dividends of stock, or other profits of The Farmers Bank of Somerset and Worcester, to th.e same or greater amount belonging to the defendant; and that the jury should so find- their verdict. Which instruction the court refused to give, but were of opinion, an! so directed the jury, that if they believe from, the evidence that the defendant has money or other funds ^le ^ant^s of the plaintiffs, they ought to deduct the amount of the sanie from, the plaintiffs’ claim in this case. The defendant excepted.</p> <p>9. The defendant then moved the court to direct the jury, that the.defendant, under the plea of non assumpsit has a right to avail himself of any fraud, mistake or imposition, practised on him in the transactions of. the said bank, whereby it may appear to the jury that the claim of the plaintiffs, as exhibited againsphim, is unlawful, and to show that nothing in equity and conscience is due to the plaintiffs. Which instruction the court, refused to give, because it was in too general terms, and might mislead the •jury; but they were of opinion, and so directed the jury, that the defendant has a right in this action to avail himself of any fraud, mistake or imposition, practised on him ¡is an individual, but that he cannot claim an allowance in this case for any mismanagement of the President and Directors, as a stockholder in this bank. The defendant excepted.</p> <p>10. The defendant then offered to read in evidence the proceedings had before the board of directory of the Farmers Bank of Somerset and Worcester, at a meeting by them held on the 29th of November 3,815, viz. “November 29th,, 1815. Present, John C. -Handy, President, James Givans, James B. Robins, (qualified,) John S-Martin, E. K. Wilson. Ordered, that Mr. Wilson be requested to attend to tbe business of this bank in the proposed convention at Annapolis. On the 2d, Ordered that the cashier may permit the account of the Union Company to run up to the sum of- 85CÍJ0; after that sum has been drawn by them, interest to be paid until paid up, which is pledged to be paid bn or before the 15th of March 3 816”— with a view to show that there was not a number of directors present at that time competent to transact business of that description, and that funds had been withdrawn from the bank in consequence of tbe ordérs of that, day, adopted as aforesaid by the president and four directors, when, tlie charter of incorporation, and the act of assembly under which they acted, required a president and five directors for the transaction of such business. Whereby he alleges that he, as a stockholder, has been imposed on by the plainiiffs, and deprived of a dividend on the said sum of §5000, from the date of the said order to the present time; and that as no dividends have been allowed the stockholders on the said sum, and as the' sdifte has been illegally withdrawn from the vaults of the bank, the same should in law be still considered and presumed to be in the vaults of the said bank; and that the jury have a right in this action to make him an allowance of a reasonable dividend on the same, and deduct the same from the plaintiffs’ claim. But the court were of opinion, that the said evidence was inadmissible, and refused to let it go to the jury. The defendant excepted.</p> <p>11. The defendant then addressed the following questions to J. P. Duffield, a witness introduced and sworn on tlie part'of the defendant, which witness was the cashier of the Farmers Bank of Somerset and Worcester, to wit: 4lYou say that this bank.is insolvent, specify some particular creditor, and say what is the evidence and the amount of his debt?” 'for the purpose of showing whether the claimants or alleged creditors were genuine or spurious, or counterfeit claimants or creditors; for upon the introduction of the evidence of their alleged claims, it may appear in evidence that the said alleged claims were either satisfied, or the evidence of the debts might be counterfeit bank notes, and if so, that thereby it would appear that there is money in bank on which the defendant is entitled, to a dividend, which should by the jury be carried to his credit against the claim of the plaintiffs. To the answering of which questions the plaintiffs objected; ¡jnd which objection was sustained by the court. The defendant excepted.</p> <p>12. The defendant then moved the court to instruct the jury, that the testimony delivered by J. C. Handy, a witness introduced and sworn on the part of the defendant, and who was the President of the Fanners Bank of Somerset and Worcester, is insufficient, and not competent in law, on account of its vagueness and uncertainty, to prove the rescinding of the order adopted on the 24th of October .1817, (herein before mentioned,) and appearing upon the records of the proceedings of the board of directors. The witness, on being told to repeat the testimony which he had before given upon the subject of rescinding the order adopted at a meeting ef the board oí directors on the 24th of October 1817, said as follows: “It was at a meet-board, the day or particular time I do riot rec°Uecti the order was rescinded, and directions given to me to give notice to the proper officer. There was no memorandum in writing, that I recollect; ánd I do not remember whether that meeting of the board of directors was a regular or special meeting—whether the meeting of .the board of directors was called by me as president; or the number of directors that were present.” Which instruction the court refused to give. The defendant excepted.</p> <p>13. The defendant then moved the court to instruct the jury, that whatever money has not been .drawn out of the Farmers Bank of Somerset ánd Worcester, agreeably to the charter of incorporation, the legal by-laws of the institution, the laws and constitution of this state, and the constitution of the United States, is to be considered and presumed to be in the vault of the said bank, for the benefit of the stockholders and creditors of the said bank; and that the jury has a right to apply as much thereof as belongs to the defendant, either as a stockholder, individual, or creditor of the said bank, as will bar the claim exhibited against him by the plaintiffs. Which instruction the court refused to give, being apprehensive it would mislead the jury; but were of opinion, and so directed the jury, that the defendant may set off any money he has in the hands of the plaintiffs, or any dividends or profits declared by the president and directors to be due to him as a stock - holder; but that he cannot be allowed for the value of his' stock in this action, unless the jury shall believe from the evidence, that the order of the board of directors of the 24th of October 1817, is still in force, or that he tendered the said stock in payment of his debt before the said order was rescinded; or that he tendered notes of the bank in payment. The defendant excepted.</p> <p>14. The defendant then produced evidence that he was entitled to 100 shares of the capital stock of the Farmers Bank of Somerset and Worcester, and that he had fully paid up and satisfied to the president and directors of the said bank, the sum of §50 on each share of the said bank ■stock, conformable to the rules, regulations and by-laws of the said corporation, and agreeably to the original act of incorporation. He further offered in evidence the act of assembly, entitled, “An act for the benefit of the Farmers Bank of Somerset and Worcester, and the Salisbury . * . branch/9 passed at December session 1830,:eh. 116, whereby the said corporation is declared no longer capable of discounting bills, drafts or notes, but is by the said law required to close the concerns of the said bank, and to make dividends of the profits among the stockholders of the same institution every two months. He further offered evidence, ■ to prove that the joint property of the said bank, as con-. 'nected with the branch bank at Salisbury, was amply suf-. ficient to pay and satisfy all claims and demands whatever as debts due and owing from the said institution. Upon this evidence the defendant moved the court to instruct the jury, that if, from the evidence thus exhibited to them, they should be satisfied that the defendant was entitled to 100 shares of the capital stock of the said bank; and that the joint funds of the said banks are good and solvent, and capable of paying the creditors of the said institutions; and that after paying all debts and claims to which said institutions were liable, there would he a considerable surplus, which ought to be applied to the benefit of the stockholders, that then and in that case the jury were bound in law, and it was their duty in assessing damages, to admit the true value of such stock as a set off against the plaintiffs’ claim. Which instruction the court refused to give. The defendant excepted.</p> <p>15. The defendant then moved the court to direct the jury, that if they should, from the evidence exhibited, believe that the defendant was entitled to 100 shares in the •capital stock of the said company, and that the stockholders of the said bank bad accepted the provisions of the act of assembly, entitled, “An act for the benefit of the Farmers Bank of Somerset and Worcester, and the Salisbury branch,” passed at December session 1820, ch. 11.6, and had acted and proceeded to collect the debts, and pay off the creditors of the said institution, agreeably to the terms of the said act of assembly, that then and in that case, if the plaintiffs do not by competent evidence show that the joint funds of the said corporation are insufficient to pay the whole debts of the said corporation, they have a right, and ought to presume that the joint funds are sufficient to discharge, as well the debts and claims against the said institution, as all stockholders in the said bank; and they are boimd in assessing damages to admit as a set off the ñilí amount of cápitál stock held by the defendant at the -just vá*ue ^ereo^ Which instruction the court refused to give.The defendant excepted.</p> <p>16". The defendant then stated, that by the original act iof incorporation of the said bank, passed at November session 1811, ch. 19S, it is, in the sixth section Of that act; enacted as follows: “And be it enacted;, That the affairs of the said bank shall be managed by sixteen .directors and á president; eight of the directors to be resident in Worcester county, and eight iii Somerset coúñty.” He further stated; that the preamble of the act of 1820, ’ch. 116, is as follows, viz, “Whéréás it has been deemed advantageous by the stockholders of the Farmers Bank of Somerset and Worcester, and the Salisbury Branch Bank, that the affairs of the banlfs should be settled, and the corporation dissolved, and to that end hath petitioned the legislature of Maryland f’ and this preamble, he alleges, contains a suggestion of matters and things not true; and he alleges, that neither the president nor directors did apply or give their consent to the changes made in the said act of incorporation by the said act of 18'20, ch. 116; arid he further states and alleges, that it was not deemed advantageous by the stockholders of the Farmers Bank of Somerset .and Worcester, or by the stockholder's of the Salisbury branch bank; that the' said change or reduction of the number of directors, from sixteen to seven, should be made, nor were they ever . consulted or advised upon the subject, nor did they ever prefer a petition to the legislature' for that purpose; and that the last mentioned act was. passed? without their consent first had and obtained according' to law. If these statements, allegations and suggestion’s, should, appear to the jury to be true, from the evidence introduced in the case,then and in that cas® the defendant contends,' that the said? act was obtained through fraud, imposition, and surprise, and is void. The defendant then moved the court.to instruct the jury, that the said last mentioned aet of assembly is unconstitutional, null and void; and if so, .that the' present action cannot be sustained,- it having been brought, by virtue of the said act of assembly of 1820, ch. 116; andtliey are bound to find a verdict for tire, defend ant. Which; Instruction the court refused to give.- The defendant ex*. cepted. The verdict and judgment being in favour of the plaintiffs, the defendant appealed to this Court.</p>