Volume 6 — Gill & Johnson's Maryland Reports

Appear from Ohaneery. The bill in this case was filed by the appellants on the 2d of April, 1832; and the judge, by whom the opinion of this court was delivered, has fully stated all the circumstances.

Appkal from tbe Court of Chancery. Tbe original bill in this caso was filed by tbe appellant on the 23d of August, 1828, and was afterwards amended by making additional parties. It alleged that Edward Collinson, the brother of tho complainant, died intestate, and without issue, some time in March, 1823, leaving the complainant, and the appellees and others, Ms heirs at law.

The object of the original bill filed in this cause, was to obtain a decree for the sale of the real estate of Lanncelot Dorsey, who died in 1829, and a division amongst his heirs of the proceeds of sale. A decree passed, and a sale was made, reported, and ratified.

This was a creditor’s bill filed by the appellee and others, claiming to be creditors of Israel Cox, deceased, on the equity side of Harford county court, against the appellants, to set aside certain deeds made to them by the said Cox, on the 29th of January, 1817.

The present bill was filed on the 28th May, 1829, by Henry Neff the appellant’s testator, in his life-time to foreclose two mortgages, executed to him by the appellee John Blizzard, the one dated on the 25th April, 1818, the other on the 15th May, 1821, to secure the several sums of $1000 and $550, with interest, on the days therein limited.

This bill was filed by the appellants on the 11th April, 1831. It stated that William L. Boyd, the uncle of the complainants, all of whom are minors, died some time in the year 1827, having first made his last will and testament, now duly admitted to probate, and that letters of administration with the said will annexed have been granted to the appellee by the Orphans court of Baltimore county.

The bill in this case was filed on the 21st of September, 1827, by the appellee against the appellants and others, heirs at law of Elias Ellicott, deceased, for the sale of his real estate for the payment of his debts; for which purpose a decree was passed on the 12th of October, 1827, appointing the appellants trustees, to make thejÉ^^ The sale was accordingly made and reported by thl^^Khe Chancellor on the 23d of April, 1828, amounting ^¶^^450, and the same was duly…

The present bill was filed by the appellant, on the 20th of November, 1831, and the case made by it is sufficiently stated by the learned judge who delivered the opinion of this court. The appellee demurred specially. 1. That the bill contained no matter of equity whereon a decree could be grounded, or upon which any relief could be granted against the defendant. 2.

'The present bill was filed on, the equity side of .Baltimore county court, by the appellants, Joice and wife, and Stephen Severson and Sarah his wife, formerly Sarah Joice, ■on the 29th of September, 1830, and afterwards removed to the court of Chancery.

This was an action oí Assumpsit, brought by the appellant against the appellee, on the g;id January, 1828, for the price ■of merchandize, alleged to have been sold and delivered by the plaintiff to one Mary Ann Brien, upon the faith of the defendant’s letter of credit. Issue was joined upon the plea of non assumpsit.

<p>In a suit by the assignee of a single bill against the assignor, the obligee, on the failure to pay by the. obligor, and on the question of due diligence by the assignee in pursuing the obligor, the admissibility of parol evidence of the notorious insolvency of the obligor cannot be questioned. It may also be proved by other evidence, such as a discharge of the obligor under the insolvent law, or the return of nulla Iona to a fieri facias sued out on a judgment obtained against him on the single bill.</p> <p>B sold C certain oxen, and received on account of that sale an assignment of a single bill executed by M to C. B brought suit against M on the single bill to the next succeeding term of the court, and obtained a judgment in regular course by confession, with a stay of execution for thirty days. He afterwards sued out a ca sa which was returned cepi and entered, not called by consent of parties. —Held, that if M had been notoriously insolvent at the time of the assignment, or had become so before the first term of the court after the assignment, there would have been no obligation on the assignee B to have sued him; and that if M was insolvent at the time of the rendition of the judgment, and no loss had arisen from the stay or entering the execution not called by consent, no laches could be imputed to the assignee of the single bill.</p> <p>The court in refusing to grant the defendant’s prayer, that for certain specified reasons the plaintiff is not entitled to recover, ought not to go further and assume that the parol evidence of the plaintiff necessarily establishes his claim, for that would be an encroachment on the province of the jury.</p> <p>Where a vendor of chattels accepts from the vendee the single bill of a third person on account of his purchase money, he is bound to use active diligence in pursuing the obligor for a recovery of the sum due on the bill, so that nothing should be lost by the laches of the vendor.</p>

This was an action of trespass, vi et armis, for taking and carrying away certain slaves, instituted by the appellant against the appellee, on the third day of February, 1832. It áppeared by the bill of exceptions taken at the trial, that the property had been morgaged by the plaintiff to the defendant on the 19th August, 1831, with a condition, that the instrument should be void in case the mortgage debt was paid on or before the first day of September, 1832.

On the 12th of October, 1832, the appellee sued out from the Prince Georges county court the writ of habere facias possessionem, under the act of 1825, ch. 103, to obtain the possession of lands purchased by him at a sheriíf’s sale, under a venditioni exponas, which had issued to make the amount of a judgment in favor of one Samuel Peach, against Nathan Waters, rendered at April term, 1824.

This was an action of replevin for four negroes; a woman and three boys, commenced by the appellees as the executors of Francis Tolson, against the appellant on the 8th of March, 1831. The defendant pleaded property in himself, and the act of limitations, to which there were issues. 1.

<p>A bill alleged that C and others were stockholders in the Union Bank of Maryland, and that by its charter I'egulating the right to vote for directors, a certain standard of voting was prescribed, fixing sixty votes as the maximum to which any single proprietor of stock could be entitled, and that no share should confer the right of suffrage which should not have been holden four calendar months previous to the day of election; that P and E large proprietors of stock, with the fraudulent intent of evading the provisions of the charter in that respect, and for the purpose of increasing their number of votes, caused a number of shares to be transferred to divers unknown persons without consideration, and colorably, taking from the transferrees powers of attorney, securing to them P and E all control over said stock, and the right to vote the same at their discretion; that this was a fraud upon the charter and complainants as stockholders, of which PandE designed to avail themselves at the coming election. The bill prayed an injunction against P and E, the President, Directors, and officers of the bank, and the judges of its election, and for subpoena against P and E, T E president of the bank, R M cashier thereof, five of the directors by name, three of the clerks of the bank, and the judges of the election when appointed. Upon this bill it was held.</p> <p>1. That the matter of the bill furnished sufficient ground for the interposition of a court of equity.</p> <p>2. That the facts stated are a violation of the principles and spirit of- the charter, and if carried into effect would be a practical fraud upon the complainants, and in derogation of their chartered rights, for which an injunction was the appropriate remedy.</p> <p>3. That the relief granted by the injunction was a proper remedy.</p> <p>4. That the objection for the want of proper parties, and to the injunction, having issued against persons unknown, is not sustainable.</p>

This bill was filed by the appellant on the 7th of October, 1830. At July term, 1832, Bland, Chancellor, passed his final decree, dismissing the bill with costs, from which the complainant appealed to the court of Appeals.

<p>M filed his bill against the administrator, widow, and heir at law, of J, for the sale of real estate, sold by M to J, upon which a balance of the purchase money was due. The bill charged that the number of acres in the tract was not ascertained at the time of the sale, but it was agreed to estimate the quantity at. 300 acres ; that a survey should be made ; and any excess should be paid for at the price per aero agreed for the 300 acres. The vendor executed a bond of conveyance, and the vendee gave his bond for the purchase money. After a receipt of a part of the purchase money the vendor assigned his bond to B for value. A survey was then made, and the excess above the 300 acres ascertained. Held, that as B, the assignee of M, might have a lien for the unpaid balance of his bond, he was a necessary party to the bill.</p> <p>2d. That as to the excess'abovc 300 acres, the complainant had a lien for the purchase money, and could recover it by a sale of the land, unless the administrator has assets to pay him.</p> <p>3d. That parol evidence is admissible to establish an independent contract in relation to the excess above 300 acres, if the bonds are silent upon that subject.</p> <p>4th. That the bill should be so amended as to charge assets in the hands of the administrator, the prayer being, either for a decree against him, or in case of his failure to pay, that the land might be sold.</p>

On the 11th of June, 1832, the appellant exhibited her bill in the court of Chancery, praying that certain lands in Frederick county might be sold, for the purpose of distributing the proceeds among the parties entitled.

This was an action for money had and received, instituted by the appellant against the appellee, on the 17th February, 1829. Issue was joined upon the plea of non-assumpsit.

The bill in the present case was filed by the appellant against the-appellees, on the 8th of September, 1825.

The appellee in this case, filed his petition for freedom on the 6th of July, 1832, against the appellant. 1. At the trial the petitioner gave evidence to the jury, by legal and competent witnesses, without objection on the part of the defendant, that about the year 1784, negro Dinah the grand-mother of the petitioner, and negro La.vy or Lavinia, the mother of the petitioner, and the only child of said Dinah, were the slaves of a certain William Mackubin.

Appear from the court of Chancery. By the will of Samuel Owings, executed in the year 1803, certain lands and property are devised to his son William, upon the following conditions, — “To hold the same to him the said William Owings, his heirs and assigns forever, upon the express condition, that he, and they, or the person or persons to whom the estate devised to the said William Owings, may eventually pass, maintain my daughter Rebecca, or pay sixty pounds current money a…

On the 13th of August, 1832, the appellants exhibited their bill in the court of Chancery, alleging themselves to be creditors of one Gerard Cowman deceased; and praying for a sale of his real estate upon the ground, that his personal estate was inadequate to pay his debts; and that what there was of it had been expended by the appellees, his brothers and sisters, without any administration.

This was an action of Debt, instituted November 5th, 1829, in the name of the State, for the use of George Barber, surviving obligee of John T.Barber, against the appellees, as the executors of Philip Hammond, one of the sureties in the testamentary bond of Rezin Hammond, as the executor of Matthias Hammond.

The present bill was filed on the first of November, 1831, by Richard Iglehart, and others of the residuary legatees in remainder of James P. Soper deceased, against Joseph Evans, his surviving executor; Charles R. Steioart administrator de bonis non, C. T. A. of Ann Soper, the widow of the said James P. Soper, Elizabeth Evans, the residuary devisee and legatee of the said Ann Soper; and others of the residuary legatees in remainder of the said James P. Soper, for an account…

On the Bd of October, 1834, the State of Maryland filed a bill on the equity side of Baltimore county court, against the appellees, the President and Directors of the Bank of Maryland, and Thomas Ellicott, John B. Morris, and Richard W. Gill, trustees; claiming to be paid out of certain funds in the hands of the trustees, in preference to the other creditors of the bank, which was charged and admitted to be insolvent.

This was an action- of Replevin, instituted by the appellant against the appellee, on the 2Sth of November, 1831, for a negro slave named Samuel; the title to whom depended upon the following clause in the will of Anna Biscoe, dated 8th March, 1824, and proved on the 11th of May, of the same year. “ítem, Í give and bequeath to my nephew John McKay Biscoe, my slave Samuel; in case the said John McKay Biscoe should die without lawful heir of his body, I then give the said…

The present bill was filed by the appellant on the 27th of November, 1833, for an injunction, and general relief against a judgment in favor of Young, one of the appellees. rendered by the court of Appeals at June term, 1833, against the appellant, as one of the sureties of the other appellee, Kemp.

The appellee on the 11th of April, 1831, filed his bill on the equity side of Washington county court, to compel the appellant as his co-surety, to contribute his proportion of the money paid by the appellee, in discharge of a bond to one Lane, in which they, with others, were bound as sureties for Matthew Lind.

Cross Appeals from Alleghany county court. This was an action of Assumpsit, instituted on the 25th of August, 1829, by the appellant in the first case, against Hohlitzell in his life-time, to charge him as the assignor of two bonds for $1000 each, payable respectively on the 1st of April, 1824, and 1825.

Mary's county court. This was an action of Covenant, brought by the appellant against the appellees', on the 12th of July, 1832, on the following contract, under the hands and seals of the parties. “We, John M. Goldsmith, and Richard H. Miles, promise and oblige ourselves to deliver to John Kilgour, or his agent in Baltimore, on the first day of July next, three thousand bushels of good merchantable corn; and he, the said Kilgour, promises and obliges himself, his heirs and…

The appellant on the 7th of March, 1832, filed his bill against the appellee, alleging that being indebted to the appellee in the sum of $500, for the purpose of securing the payment of the same, he conveyed to him on the 7th of November, 1828, by a deed absolute upon its face, certain leasehold property in the city of Baltimore, and at the same time, took from the appellee a bond conditioned for the re-conveyance of the property, upon the payment of the said sum of money,…

Mary's county court. The suit was instituted on the 8th of February, 1831, by the appellee, against the appellant, as the administrators of Calistus Underwood, the co-administrator with one Robert Holton, of Jeremiah Underwood, deceased. The bond on which the action was brought is dated October 13th, 1821, and conditioned in tho common form for the faithful performance by Holton, and the appellant’s intestate, of their duty as administrators of the said Jeremiah Underwood.

<p>A principal is responsible for the negligence or misconduct of his agents or/'' servants, while acting in his employment; and any person who sustains an injury by such negligence or misconduct, may resort to the principal for indemnity and redress.</p> <p>Where the slave of the plaintiff was carried on board a steam boat of the defendant, an incorporated company, and the captain of the boat, on the eve of its departure, informed of the slave being on board, told the plaintiff’s agent to search for her, but made no search for her himself, and the slave was in fact carried off in the boat, and lost to the plaintiff; the court would not permit the jury to consider whether the agents of the defendant were guilty of misconduct or negligence in permitting the escape of the negro, and helo, that it was the duty of the master of the boat to have made such a search as would have prevented the escape of the slave, and not doing this, the owners of the boat were responsible.</p>

Trespass commenced by the appellant against the appellee on the 12th of March, 1832, for taking and selling certain articles of personal property.

Ejectment to recover two tracts of land in Calvert county, called, ciChew,s Purchase,” and “Grantham,” instituted by the appellants on the 7th of September, 1832. The appellees took defence on title, and pleaded not guilty.

The appellee on the 20th of November, 1830, exhibited her bill in the court of Chancery, against the present appellants, asking to be relieved by injunction, from the operation of three judgments in favor of the appellant Gott, rendered by Anne Arundel county court, upon appeals from the judgments of a justice of the peace. The circumstances upon which the opinion of this court turned, are sufficiently stated in the opinion delivered fay his honor the chief judge.

Cross Appeals from tbe Orphans court of Anne Arundel county. A petition was filed by Elizabeth Lee in the Orphans court of Anne Arundel county, on the 16th of September, 1834, representing that her husband Stephen Lee, died in tbe month of January, 1833, leaving a considerable real and personal estate, the whole of which he devised and bequeathed to her during her single life, subject to the payment of certain legacies out of the profits thereof.

Appear from the court of Chancery. Bills were filed on the 8th of January, tlie22d of April, and the 13th July, 1831, by the appellee, Taylor, as permanent trustee of Stephen H. Ford., an insolvent petitioner, and others of Ford’s creditors, against himself and Hugh and William Crawford, James C. Selhnan, John Franciscas, and the Commercial and Farmer’s Bank of Baltimore, for the purpose of setting aside certain conveyances and assignments to them, and placing the property…

This was an attachment on warrant, issued under the act of 1795, ch. 56, by the appellants, to recover the amount of two notes drawn by McCaffrey, in their favor for the sums of $322 06, and $210, one at thirty, and the other at sixty days from February 9th, 1832.

On the 21st of April, 1832, the appellants, Henry Bruce, and William Fisher, sued out an attachment, on the warrant of a justice of the peace, under the provisions of the-act of 1795, ch. 56, to recover the amount of two notes made by Scarborough, payable to them, each for $225 60,. dated on the 11th of October, 1831, at four and six months.

<p>T and 5VI in contemplation of marriage, agreed that all the property of the intended wile, (¡VI,) and estate of every description to which she was then entitled, or might thereafter become entitled, should be, and was thereby conveyed to a trustee and his heirs in trust, for the use and benefit of the said M, her heirs and assigns forever, without impeachment of waste; all which property to be under, and subject, to the exclusive and entire management and control of the said M, her heirs, &c. without the interference in any manner of the said T; and the said M, her heirs; &e. to receive and enjoy the rents, &c. thereof, with power to M, to sell and dispose of the said estate by last will as if she were a feme sole. After the marriage and death of the wife without will; held, that the true character of the contract was not a temporary surrender of the marital rights over the estate during the life of M, but an entire abandonment of them, and therefore he was not entitled to administration upon her estate.</p> <p>Where the contract of marriage merely suspends the marital rights over the wife’s estate during her life, and she fails to exercise the right of appointing an executor, where the right to devise is secured to her by the contract; then the husband is entitled to administration, and to the undisposed personal estate, and choses in action of his wife.</p>

Debt on a single bill for $649 87, dated August 12th, 1830, at sixty days, signed, Wilkinson and Holland, and payable to the appellant, who instituted the present action upon it, against both the obligors, on the 11th of October, 1831.

W7. The bill in this cause was filed on the 4th June, 1834, by the President and Directors of the Union Bank of Tennessee against Thomas Ellicott, John B. Morris and Richard W. Gill, as trustees of the Bank of Maryland. .It alleged on behalf of the complainants, and all other creditors of the Bank of Maryland who should come in and contribute to the expenses of the suit, that in the prosecution of the complainants’ business as bankers, the Bank of Maryland became indebted to…

The appellees on tbe 30th of November, 1831, exhibited their bill in Baltimore county court, against tbe appellants, praying that the sum of §10,000, which had been deposited by the intestate of the appellants, in the Maryland Savings Institution, might be paid to them.

This was an action of Debt, instituted by the appellees against the appellant, on the 15th of September, 1823, for rent in arrear, reserved on several leases, bearing date May 30th, 1807.

This was an action of Trespass Q. C. F., commenced by tbe appellant against the appellees, on the 15th October, 1832. The defendants pleaded not guilty.

Actions on the case for slanderous words, spoken by the appellant of the appellees, instituted on the 8th of June, 1830. Issues were joined upon the pleas of not guilty. The circumstances of these cases are sufficiently stated by the judge who delivered the opinion of this court. The appeals were taken by the defendant, the verdict and judgment of the county court (Hanson, A. J. presiding) being in favour of the plaintiffs in that court.

On the 3d of January, 1816, James Williams, the elder, made and published his last will and testament, in which, after directing that his debts should be paid, and giving several legacies, — there are the following clauses:— “ I give and bequeath to my nephew, James Williams, of Philadelphia, all the remainder and residue of my estate, both real and personal, of every kind and description, that I may die possessed of, or that I may be in any way entitled to, in law or…

This bill was filed by the appellant against the appellees, on the 22d of. October, 1829, and Bland, Chancellor, having dismissed it with costs, he appealed to the court of Appeals.

This was an action of Slander, instituted by the appellant against the appellee, on the 13th November, 1830. Issue was joined upon the plea of not guilty. At the trial the following exceptions were taken by the parties. 1.

This was an action of Debt, instituted by the appellant against the appellee, Tyson, and others, as his sureties, on a replevin bond, in the penalty of $2,000, dated March 31st, 1827. The pleadings were stated by the Judge, by whom the opinion of this court was delivered, as follows : This action was instituted in Baltimore county court, upon a replevin bond. The defendants pleaded performance generally.

Ejectment for one moiety of a tract of land called “Bennett's Lowe, commenced by the appellants against the appellee, on the 6th of September, 1830.

Appear from Queen Ann's county court. This was an action of Replevin, commenced by the appellee against the appellant, on the 17th day of October, 1831, for negro boy named Bill. Issues were joined upon the pleas of non cepit, and property in defendant. 1.

The present bill was filed by the appellee against the appellants, to recover a sum of money, the proceeds of certain real estate, which, under the circumstances detailed by the judge who delivered the opinion of this court, had been paid to the clerk of Kent county court, and by him deposited in bank. The county court decreed the money to the complainant, and from that decree the defendant prosecuted an appeal to this court.

The appellees exhibited their bill against the appellant and one Ann Pratt, on the 1st of May, 1826, for the purpose of charging certain lands which had descended to the appellant from his father, with a debt due the appellees’ testator from Ann Pratt.

This was an action on the case in the nature of waste, instituted by the appellant against the appellee, a resident of Caroline county, on the 4th of March, 1829, to recover damages for injuries done to the appellant’s inheritance, situate in Dorchester county, by the appellee, the tenant thereof. The defendant demurred specially to the declaration, upon the ground that the action was local, and should have been brought in Dorchester county.

Appeai, from Worcester county court as a court of equity. The appellant, on the 7th day of November, 1833, filed his bill on the equity side of Worcester county court, against the appellee, alleging that he, the appellant, in right of his wife, one of the daughters of James B. Robins, deceased, was entitled to a legacy of $2,000 under the will of her father.