Volume 5 — Maryland Reports

This was an attachment, sued out of Baltimore county court by the appellee. Duck, upon a judgment recovered by him in said court against Lientard, upon the promissory note set out in the opinion of this court. The writ was laid in the hands of Poe, as garnishee, who appeared and pleaded nut tiel record, and nulla hona of defendant in his hands, upon which issues were joined. Exception.

Writ op Error to the Circuit Court for Somerset county. The appellee and others, boatmen oa board the schooner “Two Sisters,” were arrested and brought before a justice of the peace for Somerset county, charged with “having violated the laws of this State, by using scoops or drags in taking or •catching of oysters in the waters of this State.” The judgment of the justice, rendered on the 19th of March 1851, found the parties guilty, imposed a fine of $10 upon each of them,…

The bill in this case was filed on the 16th of June 1848, by the appellants against the executors, widow and heirs at law of R. W. Bowie, to enforce the specific performance of an ante-nuptial agreement alleged to have been made betweenStoddert and Bowie, in consideration of the contemplated marriage of Robert, the son of the latter, with Elizabeth, -the-daughter of the former.

This was an action of covenant against the appellee for breach of an indenture of apprenticeship, executed under the act of 1794, ch. 47, between Wright and Cockey, two justices of the peace, and Brown, by which the apprentice, Green, was bound to Brown for two years, the latter thereby covenanting to cause the said apprentice “to be taught to read, write, and cast accounts, and particularly to teach him the art or trade of a silversmith in all the branches thereof.” Issue…

Ejectment by the appellees against the appellants for certain lands in Washington county. Plea, non cul., and defence on warrant. The record shows that the defendants appeared, asked leave to ascertain their defence, and took defence as heirs at law of Benjamin Cushwa, deceased. Exception. The lands were devised by his father to Benjamin Cushwa, and by him conveyed to his brother, John Cdshwa, by deed, dated the 14th of November 1826.

This appeal is taken from the order of the court below, (Perry, J.,) setting aside a sale by the sheriff of certain lands under an execution. The lands and the parties are the same as those mentioned in the preceding case of Cushwa vs. Cushwa’s Lessee. The record shows that the lands were' appraised at the sum of $11,368.64. The facts of the case are fully stated in the opinion of this court.

This case is the same as that reported in 3 Md. Held: &c., oa the fourth Monday of March 1852.” The defendants in error moved to quash the writ for reasons appearing in the argument, insisted that the writ should be quashed, because— 1st. It does not. appear from the record that the writ of error was produced to, aud allowed by, the inferior court before the return day of said writ, or…

This appeal was taken from a decision of the chancellor, overruling the claim of the appellants to a preference in the distribution of the proceeds of the sale of “The Wheatfield Inn,” reported in 2 Md. Ch. Decisions, 169. Other decisions made by the chancellor and the Court of Appeals, on questions arising in the earlier stages of the cause, are reported in 2 Md. Ch.. Decisions, 42, and 7 Gill, 447.

This appeal was taken from the decision of the chancellor, (Johnson,) reported in 3rdMd. Chancery Decisions, 57.

<p>Error to the Circuit Court for Charles county.</p> <p>The defendant in error was indicted for the forgery of a constable’s bond, and pleaded non cul. After the jury was sworn the State’s attorney moved to quash the indictment, which the court, (Crain, J.,) refused to do, and the traverser was acquitted. The case was brought up by writ of error, sued out by the State.</p> <p>On the bond was the following endorsement: “Approved by the commissioners of Charles Co., this 8th day of July 1851. — Test, James McCormac, clerk.” In the progress of the trial the defendant’s counsel raised the objection that it was not averred in the indictment that this approval was on the bond, and the court sustained the objection and gave its ruling to that effect, whereupon the verdict was rendered for the prisoner. After the above ruling, and while the trial was in progress, the prosecution moved to quash the indictment, so as to have a new one found, but this motion was overruled by the court. Two questions are presented: — 1st. Whether the State had the right to quash, and whether the court did not err in refusing to do so? and 2nd. Whether the court did not err in sustaining the objection taken by the defendant’s counsel?</p> <p>1st. The Slate had a right to quash at any time before final verdict. It is a sovereign remedy of which it cannot be deprived, and indispensable to the administration of criminal justice. Archbold's Criminal Pleading and Evidence, 79, 80. Wharton’s Criminal Law, 132. Roscoe’s Criminal Evidence, 233. Tidd’s Practice, 818. These authorities all show, that the application to quash may be made on the part of the prosecution at any time before the defendant has been actually tried.</p> <p>2nd. The endorsement of approval is on the original bond, which was subject to the inspection of the grand jury, filed with the indictment, subject to the inspection of the court below, the counsel and the jury, and was a part of the record in the case, and ought to be equally subject to the inspection of this court. Anything occurring in the proceeding or execution of a suit may be reviewed upon writ of error. Evans’ Pr., 424, 428. Williams’ Saunders, 100, 101, note a. Tidd’s Practice, 1134, 1142. The language of the writ is broad enough to comprehend the bond, and it is proper that it should be brought into this court for inspection and comparison.</p> <p>3rd. It was not necessary to aver that there was an endorsement of approval. The offence is consummated by the false making of the instrument with intent to defraud without any uttering. Wharton’s Criminal Law, 335. It was unnecessary to aver that the bond was approved. Wharton’s Criminal Law, 346. Chitty’s Criminal Law, 1037, 1040.</p> <p>4th. This is an official bond, and it is important that the law should be settled. 5 H. & J., 330, State vs. Buchanan. If the indictment was good without averring the endorsement, the court was right in overruling the motion to quash, but if the indictment was defective in not averring the approval, the court ought to have quashed it, so as to have had a new one.</p>

This was a petition for freedom, filed by the appellants in November 1851.

<p>An executor appealed from a decree directing him to execute deeds of manumission to certain negroes, and gave an appeal bond to the State, in which he stipulated, in case of affirmance, to pay to each negro the value of hip. freedom for the time it was suspended by the appeal. The decree was affirmed as to some, one of whom, after the deeds were executed, sued upon the bond for the value of his time from the date of the decree to its affirmance. Held:</p> <p>That the plaintiff could not recover, because until the deeds of manumission were executed he was a slave under the law, being held and claimed as such, and it makes no difference that the State is the obligee in the bond.</p> <p>In a petition for freedom the recognizance of the master is the negro’s security, whilst the master has none except that afforded by sections 25, 26 and 27 of the act of 1796, ch. 67.</p> <p>A party cannot be required to contract by bond, or otherwise, with a negro whom he claims as his property.</p> <p>A negro, as long as he is a slave, can have no rights adverse to those of his master; he can neither sue nor be sued, nor make any contract or acquire any rights under a deed which either a court of law or equity can enforce.</p> <p>Where negroes are held and claimed as slaves they are presumed to be slaves.</p>

<p>A testatrix bequeathed to her executor, in farther compensation for his trouble and as a special and additional legacy to him,- “all moneys, debts, bonds, notes and other evidences of debt” being in her possession at her death, “he, however, first paying therefrom and thereout all debts of every kind against her or her estate. ” Held:</p> <p>That counsel-fees and costs incurred in a litigation relating to the probate of a codicil to the will should he paid out of the fund thus given to tlie executor.-</p>

This appeal was taken from a decree of the court below for the sale of certain mortgaged premises, passed upon a mort-' gage executed under the acts of 1833, ch. 181, and 1836, ch. 249.

<p>An endorsement of three notes was made, in consideration of the execution, at the same time by the maker to the holder of a mortgage, by the terms of which the mortgagee was to sell the property only on default of the. maker to pay the notes at their maturity. When the first note was due it was dishonored, bat by the assent of all parties a new one was substituted in its place. The mortgagee, after the original, but before the new note or any of the others matured, sold the property with the assent of the mortgagor, but not of the endorser, applied the proceeds to pay the two first notes without protesting them, and sued the endorser upon the third. Held :</p> <p>That the right to sell, which accrued upon the dishonor of the first note, was taken from the mortgagee by the substitution of the new one in its place, and the sale before the maturity of the latter was a violation of the contract between the parties and discharged the endorser.</p> <p>Any dealings wich the principal debtor by the creditor which amount to a departure from the contract by which a surety is to be bound, and which, by possibility, might materially vary or enlarge the latter’s liability without his assent, discharges the surety.</p>

Ejectment by the appellants against the appellee for certain lands in Kent county. The case was submitted to the court below upon a statement of facts, as follows: James Mil-ward being seized of the lands in controversy, by his will executed in 1799, devised as follows: — “Imprimis. 1 give, will and bequeath, unto my son, Charles Milward, all the land I now possess.” “Item.

Apjpjsal Irotn Baltimoie County Court, This was an attachment on warrant, issued by the appellants, on the 13th of November 184.8, against Cunningham, as an absconding debtor, and on the same day laid in the hands of the Sangstons, as garnishees.

This appeal was taken from a decision of the chancellor dismissing the petition of the appellant, reported in 4 Md. Ch. Decisions, 176, where the will of Mr. Harper, which gave rise to the controversy, is fully set out, and where, as well as in the opinion of this court, the other facts of the case are fully stated. 1st. Farquharson had no right to obtrude himself in the case, and ask for the protection of the cestui que trust.

Assumpsit by Smith against Bryan for the value of certain trees standing upon the huid of the latter.

This is an appeal from a decision- of the chancellor, dissolving. an injunction and dismissing the bill of the appellants. reported in 1 Md. Ch. Decisions, 392, where, as well as in tbe opinion of this court, the allegations ©f the bill and answer are sufficiently -stated.

A mortgage under the act of 1833, ch. 181, was executed on the 13th of September 1849, by Robert A. McAllister and Mary Conrad to the appellant, Gatchell, and on the 18th of April 1851, a decree was passed at the instance of the mortgagee for a sale, which was made by the trustee on the 28th of the same month, and affirmed nisi on the 2nd of June following, the appellees being the purchasers. This decree on the day of its passage was entered for the use of Worthington.

<p>A policy of insurance “to the amount of $1000, say $700 on stock of books and stationery, and $300 on music, musical instruments, fancy goods, bronze powder and medicines,” contained a covenant, that if the assured “shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation,” &c., “or in default thereof, this policy shall cease and be of no effect.” Held:</p> <p>That the proper construction of this covenant is, that if any part of the goods mentioned in the policy was afterwards insured in any other insurance office without notice, as provided in the covenant, the whole policy thereby becomes void.</p>

Covenant by the appellee against the appellants, upon an insurance policy for “$3000 on goods” “viz: on steam engine $500, on machinery $2500,.of a plaster mill,, contained in a three-story brick warehouse,” &c. By the terms of the policy the company agreed to pay, to the extent of $3000, all damage or loss occasioned by fire, within,one year, to said property, “unless the said company shall, within thirty days after the proof of such damage or loss, furnish the insured with…

<p>If a person leaves this State and removes to another, with an intention of remaining there for an indefinite timo, and as a place of fixed present domicil, it becomes his place of domicil, notwithstanding he may entertain a floating intention to return at some future period.</p> <p>A citizen of one State may break up his establishment, and, with the avowed purpose of becoming a resident of another, may actually leave his place of former abode, yet if before he reaches the point of his destination he changes his purpose and returns, he does not thereby forfeit his residence or his rights as a citizen at the place of his first abode.</p> <p>A mere intention to acquire a new domicil without the fact of actual removal avails nothing, neither does the fact of a removal without the intention.</p> <p>When once removed to his new domicil the party’s purpose to remain need not be fixed and unalterable; if it becomes aplace oí fixed present domicil, it will be sufficient to fix a residence, though there may be a. floating intention to return to his former place of abode at some future period.</p> <p>Where the verdict and judgment in a petition for freedom were in favor of the defendant, he cannot sustain an appeal though he has taken an exception, because he is not aggrieved by the result of the trial below.</p>

Replevin by the appellants against the appellee for a negro girl. The defendant’s avowry is stated in the opinion of this court. Issues were joined upon the pleas of: — 1st, non tenuerunt; 2nd, no rent in arrear; 3rd, eviction; and 4th, insolvency. The last plea was abandoned in argument. . Exception. The testimony is sufficiently stated in the opinion of this court.

Assumpsit against the appellants by the appellee, as holder of a promissory note drawn by the appellants’ intestate. Exception. The only exception in the case was taken by the defendants to the refusal of the court, (Frick C. J., and Le Grand A. J.,) to admit the deposition of William Chase Barney, taken under the circumstances stated in the opinion of this court.

<p>In assumpsit against two, as partners, and upon the joint plea of non assumpsit, one defendant is not a competent witness for the other to prove there was no partnership, and that the witness alone was responsible for the claim, but after withdrawing his plea and confessing judgment for the full amount of the claim, with interest and costs, he is no longer interested in the event of the suit, and his competency for the purpose mentioned is restored.</p> <p>Under a declaration against two charging a joint liability and a joint plea, the plaintiff cannot recover without establishing the joint liability, and the most conclusive proof or unqualified admission of the liability of one defendant, will not entitle the plaintiff to a verdict and judgment against him alone.</p> <p>A release upon a judgment by confession, necessarily eoming from the plaintiff, clearly manifests his consent to the judgment.</p> <p>Where there is a declaration against two charging a joint liability, and. one defendant confesses judgment for the whole claim,he cannot, since the act of 1825, cli. 117, raise.' in this court the objection that there should have ' beep a joint verdict and-judgment,-or none.........</p> <p>The fact that the witness is a party to the record does not disqualify him, provided he has no interest in the result of the suit; the reason of the rule which excludes a party to the suit from being a witness is his interest in the result, either as to the claim or costs.</p> <p>Where the suit is ended as to one of several defendants, and he has no direct interest in its result as to the others, he is a competent witness for them.</p>

Appear from the Superior Court of Baltimore city. This was an action of trespass on the case, instituted by the appellee against the appellant, on the 22nd of December 1848, to recover damages for the seduction of the plaintiff’s daughter, per quod seroilium amisit. Plea, non cut. lsi Exception.

This appeal is taken from a decision of the chancellor, reported in 2 Md. Ch. Decisions, 94.

Ejectment by the appellees against the appellants for a tract of land called “SIcipnish,” patented to John Swan, under whom the plaintiffs claim, in 1803. Tbey„proved (heir legal title to the land, but offered no evidence of possession. .

Ejectment by the appellee against the appellant for part of a tract of land called “Darnallsylvania.” Plea, non cut., and defence on warrant. The whole tract belonged many years ago to Hercules Courtenay, and as both parties claimed under him, it was agreed to dispense with the location of any earlier title than his.

This is the second appeal in this case, the first being reported in 4 Gill, 318. The suit was instituted by the appellant to recover money paid by him, as the surety of the appellee, on the latter’s bond, in Virginia, as administrator of Benjamin Sedwick.

This is an appeal from an order of the court below, granting an injunction to restrain the appellants, who are, (except Jeremiah Townshend,) negroes, from the further prosecution of their petitions for freedom.

Ejectment by the appellant against tlie appellee for a tract of land called “Jerusalem.” Plea, non cut., and defence on warrant. Both parties claim under certain clauses in the will of Jonathan S. Parsons, executed on the 1st of June 1848, which are fully set out iu the opinion of this court. The following plat and explanations sufficiently exhibit the location of the land: Explanations of the aforegoing Plat. 1.

This was a petition for freedom., by the appellee against the appellant. The facts of the case necessary to the understanding of the opinion of this court are fully stated therein. Four exceptions were taken in the course of the trial, but all of them were abandoned except the second, which was taken by the defendant to the granting, by the court below, (Brewer, J.,) of the instruction set out in the opinion of this court.

By an ordinance of the 22nd of May 1851, the mayor and city council of Baltimore directed the opening of East Biddle street, in said city, from Cathedral to Charles streets.

By an ante-nuptial settlement between the appellant and the testator of the appellees, the former agreed that neither she nor her representatives, either before or after the death of the latter, would “in any way” claim “bis property, real or personal,” in consideration of a similar relinquishment of claim by him and his representatives to her property.

Appear from the Circuit Court of Frederick county. Assumpsit by the appellee against the appellant, to recover a sum of money alleged to have been in the hands of the appellant’s testator at the time of his death belonging to the plaintiff. Plea, non assumpsit. 1st Exception.

Joseph Greenwood died in April 1828, leaving a will by which he devised and bequeathed as follows : “I give and devise, in fee-simple, to my three sons and their heirs and assigns, all my lands, they paying what, I shall hereinafter mention and bequeath.” Then follows a specific division of his lands, among his three sons, John, Ludwick and Philip, and after-wards this bequest: — “Item.

The appellee was arrested upon a warrant issued by a justice of the peace for a violation of the act of 1854, ch. 138. Judgment was rendered against him for $5 and costs, for the nonpayment of which he was committed to jail. He then made application to the Court of Common Pleas for a writ of habeas corpus cum causa, which was granted, and, upon hearing, the petitioner was discharged.

Appear from the Court of Common Pleas of Baltimore city. The appellee in this case, as in the preceding, was proceeded against for a violation of the act of 1854, ch. 138. From the judgment of the justice imposing a penalty of f>5 and costs, he appealed to the Court of Common Pleas.

ick county. The bill in this case was filed on the 30th of November 1837, by the appellees, as administrators of Augustus F. Ebert against John Ebert, stating that a partnership had ex-, isted between the said Augustus and his father, the said John.

This appeal is taken from an order of the court below dissolving an injunction, to restrain the execution of a judgment at law granted upon a bill filed by the appellants.

Appeal fiom the Equity Side qf the Circuit Court of Carroll county, The record in this case shows that the last order passed in it, was on the 25th of January 1853, and that from this order as well as all the previous proceedings in the case, an appeal was prayed on the 30th of April 1853. The transcript of the record was not filed in this court until the 6th of May 1854. The appellee moved to dismiss the appeal, because the record was not transmitted to this court in time.

Issues were sent from the orphans court to the Superior court of Baltimore city during its September term, 1852, to-try the validity of the will of Edward Wright, deceased. The cause was tried at May term, 1853, and the jury having failed to agree it was continued until May term, 1854, and the 12lh day of June in that term fixed for its trial.

Assumpsit by the appellee against the appellant. The counts in the declaration, and the circumstances under which the pleas were filed, are fully stated in the opinion of this court. The third and fourth pleas, general demurrers to which were sustained, are in substance as follows: 3rd.

Assumpsit by the appellant against (he appellee and one Garland, to recover the balance due for the “ Western Continent,” a newspaper sold by plaintiff to defendants. Plea non assumpsit. Exception.

Ejectment by the appellant against the appellees, for a certain lot of ground in the city of Baltimore. Plea, non cut. Exception.

Appear from Baltimore county court. The appellant sued out a writ of scire Jxtcias under the mechanics’ lien law of 1838, ch. 205, to enforce his claim for work and labor done and performed upon and about the building, described in the writ, of which the appellee was the owner or reputed owner. The claim filed before the writ issued is not in the record.

On the 22nd of January 1852, the legislature, by joint vote, elected Mr. Bateman State librarian, “according to the constitution, for the term of two years.” Mr. Bateman resigned the office on the 20th of April 1853, and on the 23rd of that month, the appellee, by joint vote of the legislature, “was duly elected Stale librarian.” On the 7th of March 1854* the appellant was in the same manner “duly elected State librarian,” and insisting that the appointment of the appellee…

Trover by the appellant against the appellee, to recover the value of negro slave Rose and her two children, alleged to belong to the estate of Sarah Seward, deceased. The pleadings are the same as those in the case of Stewart vs. Redditt, 3 Md. Rep., 67. In the course of the trial eleven exceptions were taken by the plaintiff. 1st Exception.

This was an action of trespass vi et armis, by the appellee against the appellants. The declaration contains two counts; the first charging a joint assault and battery by the defendants, and the second a joint trespass in breaking and entering the plaintiff’s dwelling house.

This appeal is taken from an order of the court below dismissing the petition of the appellant. The facts of the case, as disclosed by the record, are sufficiently stated in the opinion of this court. made the following points: 1st. That upon general principles the administration in Massachusetts is principal, and the administration in this State ancillary thereto.

This appeal was taken from an order of the court below granting an injunction upon a bill filed by the appellees against the appellant and others, represented to be the heirs at law of Michael B. Carroll, deceased. The allegations of the bill and all the facts of the case are fully stated in the opinion of this court. The act of 1835, ch. 380, enables any one defendant, on filing his answer, to appeal from an order granting an injuncSion. 7 Gill, 109, Barnes vs. Dodge.

This appeal was taken from an order of the court below', (Le Grand', A. J.,) dismissing the bill of the appellant. The facts of the case are fully stated in the opinion of this court. 1st. The will of the deceased contains no such devise to, or provision for, the widow as required her to make a renunciation in order to entitle her to claim her reasonable part or thirds of the testator’s personal estate.

This was an action of trespass quare clausum fregit, by the appellee against the appellant, instituted in Carroll and removed from thence to Frederick county. The pleadings and evidence in the cause are fully stated in the opinion of this court. 1st Exception.