Volume 6 — Harris & Johnson's Maryland Reports

The will is dated the 12th of March 1805, and the clause under which the relators claim is as follows: “All the necessary expenses attending my daughter, and the expenses of a woman to attend her until she attains the age of eighteen years, shall be paid out of the income of my estate, received by my trustees from my executors, and the residue of the income, after deducting my daughter Mary, and her servant’s expenses, shall he appropriated, until she attains the above age…

<p>In a criminal pro° seeution against a person for giving a pass to a slave contrary to the act of 1796, ch, 67, j. 19, the loss of service by the master must he averred in the indictment</p> <p>The giving a pass to a slave is prohibited by the act of assembly as one of the means only by which the of-fence of depriving the master of the service of the slave was to be consummated</p>

<p>Appeal from a decree of the Court of Chancery dismissing the bill of the ta'dmplainanis, (now appellants.)</p>

Appeal .from a judgment rendered in Prince- Geor'gés county court, for the petitioner in that cdurt, (the appellee,) on his petition for freedom. Tli'e facts are sufficiently stated in the opinion given by this court.

<p>A decree in equity for the sale oí* lands to pay debts or legacies, or for the purpose of distributing the pro» ceeds among those entitled, is a pro. ceeding in rein. The chancellor has the power ofenibi cmg such a decree, by ordering the possession to be delivered tq the. purchaser under the decree, in certain cases.</p> <p>The exercise of this pow er, in i ela * tion. to all such persons as were parties to the proceedings, and whose rights haves been determined by the decree, is essential to the full adniim.it,ration of justice. Persons who come into the possession, of the land pen* dente lite, claim» ing title to it under the parlies to the bill, or some of' them, stand in the same predicament with those whom, they represent ia point of interest</p> <p>But where a per» son was in posses»* sion at the time the bill was filed, claiming adversely, and was not a party to the decree, his interest .cannot be affected by it; and. from such a possession, he cannot be removed until his title is adjudged to be defective in the regular and established course ofju- ' diemf proceeding), and not, in a summary manner by way of morion</p> <p>How far a tim’d person, who comes, into the posseision during the pendency of the suit in equity, claiming adversely to the litigating parties, c«tn, af.er a decree & sale, be removed in a .vunvmarj way at the instance oí the puiN chaser? Puere</p> <p>W bethel- the will in this case was re* yoked by a subsequent marriage $nd the birth of a child? ¡¿uer,$'</p>

The object of the bill filed by the appellees, was to obtain the Surrender and cancelling of a mortgage of some negroes* executed on the 29th of January 1814, by //. Pumplirty, the former husband of the female appellee, to Wesley, one óf the appellants. The case is sufficiently stated in the opinion delivered by this court.

<p>The rú f i o Jh; fi’ivon under a {ye> neiaí iu a foil1', mn.i be aft’ieeablo to iho <“isí- made by the bill, ami mot diifexviif. from, oi :u-<G<>n -tenr, with it.</p> <p>V» ht reahill was filed u» have a ai e<l record uLic-Miad (been omitted fu he recorded within six month*. and closes. with n jyeñ< ral' jmu et* fox* otlurar/t further relief, &t. a decree ihn’ the nuwt/rai’v sid bo sold, f o. is ihji witimi ¡lie relief prajed by the bill.</p> <p>A bill for one purpose can.iot be made to answer another»</p>

<p>This court haS adopted, ami eon” sidera itsi If bound by tlie deciá.om of the supreme court of > the United States respecting tin state insolvent; lhws. (noto)</p> <p>Where the ¡¡real estate of a /time covert is sold’ under the act to direct descents, the muuit.on of her estate from ri ál td personal is c.u tupirte when the eommUsioiuTS5 sale is ratlin tl by the court, and the purchaser h.oeom, plied with the terms of it, by pajin£lhe money** if the sa.e w¡s for cash, or M giving1 bomb to the representatives, if the sale was on a ered« h.</p> <p>The bond passed to the wife by the purchaser is a chose in actions as is ihe money in. the hands of the commissioners, if withheld from her} both J table to he sued for and rt-> covered by the husband alone.</p> <p>The money tint» in the hands of the commissions sf may be attached by the husband’^ creditor to satisfy a debt due by hmn The money, being at the disposal of the husbaud, ism truth and in law liis, and is liable for his debts, and can never be enjoyed by the wife hut upon the* sinS*U’ contingency or her surviving- her husband before an appropriation is made of it by</p>

The declaration contain-?, ed four counts: The first for goods sold and delivered. The second on a quantum meruit for; goods sold and delivered. The thirfl on an insimut computassenti and the fourth qnff special agreement.

Api'eai. from Baltimore county court. The plaintiffs [how appellees,) brought an action on the. ca.se against the defendant, (ihe appellant,) being an innkeeper, for the loss of goods, &c. The declaration states, “That whereas, according to the law and customs of this state, innkeepers, who keep common inns to entertain persons travelling by, or sojourning at the places where such inns are kept, by day and night, are to keep and preserve such guests and their money, goods…

f4 sitting as a court of equity. The appellants filed their bill against the appellees, claiming the entire' interest in two parcels of land in P lince-George's county, of which Bladen Craycroft, the ancestor of- both the appellants and the appellees, died seized, and asking qf the court to make, á partition of these lands between the appellants.

<p>tinder an act of the legislature in» corporatmg a company, shave* were to be subscri» bed ibr to be paid in five instalbndant,who was a subscriber, and who pleaded the statute of limitations. The lasunJO was not barred. lleldf that although the last instalment of $20 was not barred by the tations, yet as the county court had not jurisdiction of that sum, that court did not err on to the jury, that t£t.e plaintiff» were barred of tjUeic right of action by the defendant’* of limitations, ments; four of the instalments had become due more than three years before the suit was brought against the defendant, who was a subscriber, and who pleaded the statute of limitations. The lastjnfitalment of $20 was not barred. Heldf that although the last instalment of $20 was not barred by the statute of limitations, yet as the county court had not jurisdiction of that sum, that court did not err in their direction to the jury, that the plaintiff» were barred of i^ieir right of action by the defendant’* plea of the agtof limitations,</p>

Arpear from Harford county court. An action of replevin was brought by the appellee against the appellant, and the following c$se wg,s stated for the opinion of the court.

<p>Appeal from adecreéof the court of chancery»</p>

<p>Appeal from a judgment rendered in Montgomery county court, for the plaintiff- in that court, (the now appellee,) in an action of trover for sundry negro slaves. The defendant (now appellant,) pleaded the general issue.</p> <p>1. The plaintiff, at the trial below, offered in evidence the letters of administration granted to'her upon the estate of her deceased husband Jesse Burch, by the orphans court of Washington county, bn the District of Columbia, on the 14th of June, 1803, She also proved, by competent witnesses, that the -negro woman Rachel, named in the declara-. tion, belonged to her intestate at the time of Ms death, and that the said negro woman, and the other negroes named in the declaration, and who were the children of said Rachel, after the death of her intestate, and after she obtained the letters of administration aforesaid, came to her possession as administratrix. That she resided in the city of Washington, in the District of Columbia, at the time of obtaining {lie letters of administration, and has ever since resided there. That the negroes before mentioned were, in the pionth of October f 818, sold by the defendant at pnblic auction, and all of them sold for the following prices; Sydney for $540, Louisa for 8525, Eliza for $755, and Rachel and • her two children for §1030. That at the sale a son of the plaintiff’s, and one of the distributees of her intestate, attended as her agent,gave notice to the defendant i>f her claim to the property, and objected to the sale; but that the defendant, notwithstanding the notice and objection, proceeded to make sale,' and did make sale of. the said negroes as before stated-' That tlie said negro Rachel, and her elder children, were held by Kinsey Gittings in Montgomery county, wheíeófhe wash citizen ever since the year, j805, and her other children were born in his possession, and so continued at the time of his death,'which happened in September 1818.' 'The defendant then offered in evidence a record of the orphans ‘ court of the'county’ of Washington, in the District of Columbia, 'in which it is stated, that on the 14th of June 1803, letters' of administration on the estate of Jesse Burch, de ceased, were granted, to Jane Burch, who entered into bond as administratix, with Benjamin Bacon, James R. Bermott and! Kinsey Gittings, as her sureties, and which bond was approved by the court. Then follows an inventory of the estate of the deceased, returned by'the administratrix, ‘ amounting to 8716 98. That on the 21st ofFebruary 1804, B. Bacon, piip of the above sureties, petitioned the court to)order the administratrix to give counter security; and on her being summoned and Laving appeared, she was ordered to give counter security. She afterwards produced (he bond of-Kinsey Gittings to B. Bacon, dated the 18th of April 1804, conditioned to indemnify him for having become her surety. That on the 27th of April 1815, Kinsey Gittings complained to the court that he vyas under apprehension of suffering by his suretyship on account of the misconduct of the administratrix, and. prayed that she might be ordered to give him counter security, or that the property of the deceased might be delivered to him. A summons was ordered against the administratrix, returnable on Saturday week. On Saturday the 11th of May 1805, the court passed the following order: “On application of Kinsey Gittings, one of the securities of Jam Burch, administratrix of Jesse Burch, stating io the court, and satisfactorily proving, that he is in danger of suffering from said securityships — Ordered, that all the property of the said Jesse Burch be delivered into the hands of the said Kinsey Gittings, unless the said Jane Burch give counter security to him on or before the 25ih instant, and that citation issue to compel her thereto.” On Saturday the 25th of May 1805, Jane Burch not appearing, and the summons being returned non est, it wao ordered to be renewed, returnable on the second Tuesday in june then next, on which day it was ordered by the court that ihc order of the 11th of May be made absolute, and that she deliver up 'all the personal property of the deceased to Kinsey Gittings. On the 27th of July 1805, (Hirings returned oil oath an inventory of the estate of the deceased in his hands, viz. a negrogirl named Louisa, - daughter of Rachel, a negro girl named Eliza, daughter of Rachel, and prayed an order to sell them. And the court ordered that he should sell them at public auction, on a credit of six months, on giving three weeks notice in the Washington Federalist, &c. and taking bond with approved security for payment, with interest. That on the 17th of October 1807, the administratrix, on citation at the suit of Thomas Burch, having passed her first account, whereby it appeared that there was in her hands a balance of $602 13, exclusive of an outstanding debt of $ 120, still due by the deceased, which being deducted, left the sum of $482 13, in her hands, to be distributed, it was ordered that the same be distributed as follows, viz. one third, $180 71, to be retained by herself as widow, and the remaining tw6 thirds, $321 42, to be divided equally among the five children of" the deceased, amounting to $64 28| each. The defendant- then offered to read in evidence a bill of' sale from the plaintiff to Jesse Moran, for sundry negra, slaves, dated the 15th of May 1805, and duly acknowledged and recorded in the county of Washington aforesaid, and offered to prove the due execution and enrolment of' the said bill of sale; and- offered1 to prove that the negroes^ Rachel and,Louisa, in the said'bill-of sale mentioned, are two of the identical-negroes mentioned-in the declaration. Tile plaintiff objected to the admissibility of1 the bill of’ sale, and in-order to show the same tobe inadmissible and incompetent, produced* to the court a record of the proceedings in said orphans court. [See the, proceedings stated in Gittings vs. Burch’s. adm’x., 9 Crunch, 372. J-The decree of the orphans court-mentioned in the said record of proceeding, and above referred to, was- made, on the 19th of June 1818, whereby it was “adjudged, ordered 'and decreed, that the said Kinsey Gittings deliver to. the, petitioner, as administratrix of Jesse Burch, the, negroes, mentioned in the inventory of the defendant, and returned' to this court on the 27th of July 1805, and the increase, thereof, provided the said Jane Burch pay and satisfy the, said Kinseydcic, sum of’J46 7 0§, paid byhim to William Willson, executor of John Clarke, being the amount of a, judgment against Jesse Burch, and moreover repay the said Gittings $64 28, being so much paid, as it appears, by Gittings to Thomas. Burch, one of' the children of Jesse Burch, for the amount of his dividend.” This decree, a% stated in the said record, having been reversed in the supreme court of the United States, and the cause remanded-to the orphans court, and the administratrix having after-wards, on the 25th June 1816, filed her replication, denying all the matters and things in the answer, the orphans court passed an order for taking testimony, and a number of depositions were taken and'returned- to the court. That the defendant, although summoned, did- not appear. After which, the proceedings state, that on “the 29th of No-, vember 1817, this cause standing ready for hearing on the-bill, answer and replication, and on the depositions taken, and on all the proceedings had therein, the parties having appeared and being heard, it is, after due consideration by the ‘orphans court of Washington county, and by tbe authority of the same, adjudged, ordered and decreed, this S9tli of November 1817, that the decree formerly passed by this court on tbe 19th of June, 1813, be and the samo is hereby affirmed, and now decreed.” The plaintiff further offered evidence to prove, that before the institution of this suit, the negroes in the declaration mentioned were demanded of the defendant, and also, that at the time of making the said demand, she tendered to the defendant, as administrator of Kinsey Gittings, the sum of money directed by the decree of the orphans court of Washington county aforesaid, to be paid by her to the said Gittings, and that the defendant refused to receive the same. The plaintiff also read in evidence the return of sales of the defendant, made by him as administrator of Kinsey Git-tings, to the -orphans court of Montgomery county, viz. One negro girl named Sydney §540, ditto Louisa 8525, •ditto Eliza $755, one negro woman named Rachel, and her two children, §1030. These sales were made on the 29th, SOth, and 31st of October 1818. The defendant, it was admitted, was the administrator of Kinsey Gittings named in said record, and held possession of the negroes in the declaration named, and sold the same as part of the estate of said Gittings5 and it was also admitted, that the negroes, in the declaration mentioned, had been returned by the defendant in the inventory of said K. Git-lings's estate, filed in the orphans court of Montgomery county, and that the said sale was made under the orders of that court made for that purpose, on the 14th and 27th of October 1818. The defendant objected to the admission of the said record, and the effect of the said record and parol evidence, especially at this stage of the trial, objecting as well to the substance and effect of the said record and parol evidence, as to the admission of it before the court, for the purpose of determining the preliminary question of the admissibility of the evidence now offered by the defendant} and the court, [Ridgely and Kilgour A. J.J sustained the plaintiff’s objection to the admission and competency of the evidence so offered by the defendant, and refused to permit the said bill of sale to be given in evidence, it being the opinion of the court, that from the record and proceedings had between the plaintiff and Kinsey Gittings, deceased, in the ornhans court of the District pf Columbia, and which the court admitted should be read in evidence on behalf of the defendant, the same being produced and offered by him, and is before referred to. That the defendant; as administrator, of Kinsey Gitlingsacquired possession of, and claimed title to the negroes in the declaration named, as belonging to the estate of Jesse Burch', deceased: Und that the defendant, thus claiming title under Kinsey Gitlings, deceased, is concluded from giving the said bill of sale in evidence, to show an outstanding title in a third person, for the purpose of defeating this action. The defendant excepted.</p> <p>2. The defendant then prayed the opinion, and instruction of the court to the jury, that upon the évidenefeso offered-and produced, as well on the part of the plaintiff as of the defendant, if Believed to be true by the jury, the plaintiff is not entitled to recover for the conversion of the several negroes in the declaration mentioned. Which instruction the court refused to give; and upon the prayer of the .plaintiff, instructed the jury as follows: That although Kinsey Gitlings, the defendant’s intestate, may have been authorised by the order of the orphans court of the county of Washington, iri the District of Columbia, dated the 11th day of June, 1805, to take possession of the property of the plaintiff’s intestate, then still to be administered, and' retain the possession thereof till his death, yet upon his death the defendant was not authorised to take the possession thereof, biit was bound, when demanded by the plaintiff, as the administratrix of Jesse Burch, to deliver up the property to the plaintiff, (the letters of administration granted to her not having been revoked,) she being the only person who, after the death of Kinsey Gittings, could claim to hold possession of the said property, and being required by law to go on and discharge her trust; and the sale made of the said property by the defendant) as stated in the testimony, was conversion of it, for which this action may be maintained. To which several decisions of the court, admitting the said exemplification. in evidence, refusing the instruction prayed by the defendant, and giving that prayed by the plaintiff, the defendant excepted.</p> <p>3. The defendant then, for the purpose of proving that a sale had been made by Gittings of the negro woman Rachel, and her two twin children, pursuant to the orders end authority of the Orphans court of Washington county, proved by a competent fvitness, that he was present in August, 1805, at Barney’s (now Semme’s,) Tavern, in 'George-Tovra, District of Columbia, at a public auction then and there had by an auctioneer, under the direction and authority of said Gittings, who Was present acting as vendor of a negro woman and her two children-, who were understood, and stated at the time* to be a part of the estate of Jesse Burch, decéásed, and that, the said negro woman,- and her two children, were bought at su Ji auction by Doctor OsiáS Offutt; that the witness saw no money paid, nor any writing given to the auctioneer by Offutt, nor does he know that the said negroes, ór any of them, were delivered to Offutt. The defendant further proved by another witness, that Dr. Offutt, (who has been dead about thirteen years,) told the witness éarly in the morning after the said sale, at the house of said OffutPs mother, where he lived, that he had bought a negro woman and her two children the day before, that he had enough on his place, (whiéh was about two miles from his toothers,) and would sell those he had bought at the same price he gavé for them, and offered to sell them to the witness at the same price, which was, according to the best of the witness’s recollection, less than g)3C% that the witness declined purchasing them, upon which Offutt said he would offer them to Kinsey Gittings in preference, and if he would not buy them he must sell them to some one else. The said witness further stated, that the negroes were not present at the timé, and he saw them not in Dr. OffutPs possession at any time. The defendant then read in evidence Gittings’s advertisement of said sale, published in the newspaper printed at Georg'e-Town, called The iWashington Federalist, more than three weeks before the sale. Whereupon the court, upon the motion of the plainiiff’s counsel, instructed the jury as follow: 1st. If they should be of opinion, from the evidence, that the sale was bona fide at public auction, and conformable to the order of the orphans court, and an entry of said sale was made by the auctioneer, and that Doctor Offutt complied with, or offered to comply with, the terms of sale, of paid the purchase money to Gittings for the said negroes, that then the property became vested in him, without an actual delivery Thereof to him being necessary. 2d. If they should be of .opinion, from the evidence, that the tefiiis of sale were riot complied with, or offered to be complied with, by Doctor Offútt, br the purchase money was not paid by him to11 Oiitings, or that there was no delivery of the negroes to the said Offutt, that the Jury may and ought to presunta that the property in the hegroés was hot diveáted, biit still remained in Gittings's hands, as part of the property be-1 longing to the estate of Jesse Burch. 3d. If the jury should be of opinioii, from the evidence, that Doctor Offutt did jrarchase thé said negroes for Gittings, then such sale is void; but if the jury should be of opinion that Doctor Offutt did purchase the negroes for himself, and did comply with' the terms of sale; or had possession of said negroes delivered him, aiid afterwards agreed that Gittings should have them at his own bid, then the said sale is legal, and the plaintiff is .not entitled to recover in this action. To the giving of which instructions, in the terms aforesaid, the defendant excepted. The defendant then prdyed the court to give to thé jury the Opinion and instruction following* to wit: That the pioceediiigs of the orphans court of Wa,sh~ ington County aforesaid, as contained in the said exemplification given in evidence by the defendant ás aforesaid, and the account and distribution therein set forth; as adjusted and settled Oñ thé Í7th of October 1807, are competent and sufficient evidence against thé plaintiff, that all the ^property returned in the plaintiff’s inventory, as administratrix of Jesse Burch, -had been disposed Of and reduced into money by the plaintiff, Or with her assent and authority, aiid with the authority and sanction of the said orphan® court. Which instruction the court refused to give as prayed, but instructed the jury, that the proceedings of the orphans court of Washington county, as contained in. the exemplification giVen in evidence by the- defendant, and the account and distribution therein set forth as having been adjusted and settled on the 17ih of October 1807* (provided the jury should be opinion' front tlie evidence that the sale made on the 24th of -August .1805, by Order' bf the orphans court, was a bona fide' sale, and made con-' forriiable to the said order,) are competent and sufficient evidence against.the plaintiff, to show that all the property returned in the plaintiff’s inventory, as administratrix of Jesse Burch, had been administered and reduced into money by the plaintiff, or with her assent, and that the same was sanctioned by said orphans court. To the granting of all and every of which said instructions, and to the refusal of the court to grant the defendant’s, instruction as prayed, the defendant excepted; and the. verdict and judgment being in favour of the plaintiff, the defendant appealed tq this court.</p>

This was án action on the case, brought by the appellee against the appellant, for the alleged violation of a contract.

Assumpsit on a promissory note dated the 17th of February 1819, drawn by the defendant (now appellee,) in favour of the plaintiff (now appellant,) for 8125, Non, assumpsit and issue. At the trial the plaintiff offered in evidence the promissory note upon which the action was brought, admitted by the. defendant to have been executed by him, and delivered to the plaintiff.

<p>If a tvitness swears tharhe was present at the birth of a and the opposite party proves that hn was not present, suelt proof is snbsiantiatty to defeat the credit oi the witness,and bis testimony may he «orroborateá by proof of' hi* prior declination*</p>

Arpead from Baltimore county court. This was an ac-tum of debt brought upon John Chalmers’ bond as sheriff’ of Baltimore county, dated the 28th of December 1814.

' Appeal from an interlocutory decree of the court of chancery. The appellees filed their bill for thé specific .performance of a contract to convey land.

The bill in this case was filed, on the 6th of September 18C4, in the name of Jacob Gibson, William Ml. Calrop, Nathan Harrington, and Benjamin Willmott, against the devisee and executor of Edward Roberts. On the death of Gibson, his executor was made one of the complainants. The facts were these: John Thomas was a candidate for the office of shei’ilF of Talbot county, at the election held on the first Monday of October 1-797.

Assumpsit by the appellees, (the plaintiffs in the court below,) against the appéllant, (the-defendant in that court,) to recover the amount of three instalments of $5-each on 100 shares of stock in the company of the plaintiff's, alleged by them to belong to the defendant. The general issue was pleaded. At the trial below, the plaintiffs read in evidence the acts of assembly of 1808,ch: 111; 1812, ch. 143; 1814, ch. 66, and 1817, ch. 153.

Debt on an ap.-[pcalbond. The defendant below, (now appellant) pleaded I general performance, to which there was the following repli- ' cation: VAnd the said Owings, by his said-attorneys, saith, ; that by any thing, in the said- plea of- the said- Karthaus. ' pleaded, he ought not to be precluded from having and- ’ maintaining his action aforesaid against him the said- Karthaus, because, protesting that the said- Karthaus, in the con-, dition of- the said writing obligatory…

<p>Appeal from Baltimore county court. Assumpsit by the plaintiffs, (now appellants,) on a promissory note, drawn by Latiiner and Lyon in. favour of the defendant, and by him endorsed in blank. Evidence was given as to the manner in which notice of nonpayment was given to the. defendant; but as the decision of tips court relates only to the blank endorsement, such evidénce is omitted. On the defendant’s prayer, which was a general one, the county court, [Hanson, A. J.) directed the jury, that the plaintiffs were not entitled- to: recover. The plaintiffs excepted and appealed, the verdict’ and judgment being against them. The cause was submitted without argument.</p>

Trespass qtiare clausura fregit. Tire general issue was pleaded; and at the trial, the plaintiff, (now appellee,) offered in evidence the plots and explanations returned to the court, and the patent of the tract of land called Hermitage, (on. which the trespass is alleged to have been committed,) granted to William Joseph on the 6th of June 1689, for 8866 acres.

The complainant (now appellant-,) and his wife, had heretofore filed a bill to set aside a settlement made between the defendant and the complainant’s wife, to whom the defendant had been guardian, and to- have an account of the monies in his (the defendant’s) hands,- and to compel him to deliver certain slaves. After a statement of accounts, the chancellor set aside the settlement, and decreed the payment of a specific sum of money, and the delivery of the slaves.

<p>Appeal from Baltimore county court. This Was ¿ special áction on the case, brought by the appellant against the appellees: The declaration charged the defendants below with unskilful management of the concerns of the plaintiff. It contained two counts, to both of which objections were taken; but aS the court did not decide the casé on those objections, it is unnecessary to set out the d eel station. The general issue was pleaded; and at the trial the plaintiff gavé in evidence, that being a merchant, extensively engaged in commerce in the city of Baltimore, he was, as such, a customer of the defendants, and was in the habit of depositing his money with, them for safe keeping, arid of delivering the promissory notes and bills Wfiich. he held, whether payable in Baltimore, or elsewhere in the Atlantic commercial cities, to the defendant^, to collect for him, and in case such notes and bills were not paid,' they were to be returned by the deféndants to him. That bei'njJ; the legal owner and holder of a bill of exchange for g684 95# drawn at Baltimore on the 2d of November 1810, by John Chalmersj junior,- upon John Chalmers of the city of Washington, payable six months after date to William Hawkins¿ ; or order, endorsed by Hawkins to the plaintiff, and ac-' : cepted by the drawee, he delivered the same to the defendants on the 1st of May 1811, to be by them collected from John Ch'almefs,• the acceptor, when the same should become due according to law, and the defendants received the, said bill of exchange for that purpose,. He also gave in evidence, that the defendants did not cause any demand to be made for payment qf this bill on the acceptor, until the Gth of May 1811, when the acceptor refused to pay it. That a protest was immediately made, and notice of-the nonpayment by the acceptor given, to the drawer and endorser, by letter dated the 6th of-May f8.ll, which was immediately forwarded by mail. That, the, plaintiff then applied to William, Ha.ipkins, the endorsos;, for payment, which he also refused to make, and he then instituted suit against Hawkins on the bill, in Baltimore county, court, where he. obtained a judgment by default, from which judgment Hawkins appealed to the court of appeals, where it was reversed. The record and proceedings in that case, it was agreed should constitute a part of the present. LSee that case reported at the end of this.'] The plaintiff further gave in evidence, that John Chalmers, junior, the drawer of the bill, ami John Chalmers, the acceptor, became insolvent about the time the bill became due, and have been regularly discharged under the insolvent laws of this state, and of the District, qf Columbia, and that the plaintiff lias never received any part of the amount of the, bill. The defendants then gave in evidence, that having received the bill.from the plaintiff .on the 1st of May 1811, for the purpose of collection, as stated in the plaintiff’s evidence, they enclosed the same, on the,,2d of May 1811, in a letter from their cashier, addressed,to fflilliam Whann, the cashier of the Bank of Columbia, which bank was the established agent and correspondent of tlm defendants, for the transaction of all such business, in the city of, Washington and George-Town. The letter of tin? 2d ,of May 3811, was sent by mail, and by the regular course, of .the mail,would reach William Whann in the afternoon,, ofstha Sd of May; and that Whann caused the demand tq be made on the Gth of May 1811. They also.gave in evidence, that it was the custom at that time, and constantly before, in the District of Columbia, for the banks there to cause a demand for payment of hills of exchange and promissory notes to be made on the fourth day after they jecame due, and not before. They also gave in evidence, that it is the universal custom, for banks in the city of Baltimore, who collect for their customers notes or bills payable at a distance from Baltimore^ ip, use ike hanks of the place, where the collections are to be made, as agents in. making such collections. On this evidence the defendants prayed the.court to direct the. jury, that the plaintiff was not entitled to recover. Which direction the court, (_Dorr sey, Ch. J. Hanson and Ward, A. J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against him, he. appealed to this court*</p>

<p>J t a * “Neither a husband nor wife is a competent witness in a civil suit to which either is a party, nor iu an action between, tlmd persons, directly aliev tint; the interest of either.</p> <p>jj J ij J Í In an action of repiev in brought by l*, against C,fc> recover two s.< ves held oy C under a i»iil of saie. in the nature of a mortgage, from 3N, ihe wife of N is not a competent witness to pi-ove title in N, at the time of the execution oi such bill of</p> <p>: Where P contracted with N for tin; saie of ecttain slaves, and N was t.o take them into his possession, and pay for them at an ensuing day, but the property of P was to continue mn.il they were paid for, and^ a part of the price agreed upon was paid to Heidi that P did not, ac the time of the contract, part wiih his interest in the •slaves; that the paymí nt of the who e oí the ‘stipulated price was a condition preeed' lit, on the performance of which alone, and not before, the title could ve-t in li. That the part payment was not such a pirformanee as eoiDdof itsetf have the effect to divest i* of his property, but that the title re» mmned in him, notwithstanding any indulgences wtncli he may have extended to N. And although, lie might permit the possession to remain in N, he was under no obligation to stand by -aid ¡mrfer N to transfer tli m to another person, and thereby incur the risk of losing them altogether, but had a right to assert hi*! ihiiia whenever he saw them passing; into other bands, oil Che ground tú-! the title b} theteim of the original tonU’aet was never out of kinn</p>

An action oí] dower was brought by the appellant, the demandant in tba court below, against the appellee, and the following statement submitted- to the court fpr their opinion. George Richardson died in the year 1802-,' seized of the lands and mills .mentioned- in the demandant’s declaration, without malting awill, or disposing of.them, and leaving the following children, Betsey, David, Emma, Samuel, 'Molly and 'Nancy.

Appeae from Queen Anne’s county court. An action of debt was brought in the name of the. state, for the use of Joseph E. Betton, on a bond executed b'y the appellee’s testator, ori the 29th of July 1810, .as the guardian of Bet-ton.

The defendants in the court below, (now appellees,) were the owners of .he cargo of a brig called the Ann.

Jlsswripsii on a promissory note, dated the 2d of February Í.815, drawn by George Magruder, for $300, and payable, 60 days after date, to the appellee’s intestate, (the defendant in the court below,) or order, and by him endorsed to Patrick Ma? grude\\ or order, who endorsed it ta the appellants. . 1.

, Appeal from Baltimore county court. Ejectment, for a lot -of ground in the city of Baltimore. PJéa, non cul. 1.

A weal from Montgomery county court. Ejectment for a tract of land in Mcnlgtvicry county, called Lay Hill. The defendant, (the appellee,) pleaded the general issue. The opinion of the court below was given on a case stated, which presentctl but one question, that is, what was the true construction of a devise in the will of James Beall, executed in the year 1T23, under which the lessor of the, plaintiff claimed?

This bill was brought to compel Thomas laics, and his trustees, to convey to the complainants a square of ground called Hampstead Hill, in the city of Baltimore, upon au alleged contract by Charles Myers, the father of Matilda Grahame, the female complainant, of whoni she is the only child and heir.

Appear from Charles county court. This was an action on the case, and the. declaration alleged that the plaintiff, (now appellant,) was possessed of a dark bay mare of thp value of 8200, as of his proper goods, whereby be received profit and advantage; yet the defendant, (now appellee} not ignorant of the premises, but maliciously intending and contriving to injure the plaintiff in this particular, then and there illegally and toriiously took possession of the said mare, and…

This was an action of debt brought on a bond entered into to the state, on the 9th of November Í816, by John M. Hepburn with Thomas R. Hodges and the appellant, (the defendant in the court below,) conditioned that Hepburn should well and truly perform the office of administrator of JaneFishwick, &c. The defendant pleaded; 1. That the bond was ¡delivered ás an escrow. 2. Non est factum.

Assumpsit by the holders of an inland bill of exchange against the payee. Plea, non. ussuxnpsit. At the trial, the plaintiffs, (now appellees,) gave in evidence an accepted bill of exchange, drawn on the 24th of August 1819, by W. P. Strike,. on W. and A. II.

<p>Appeal from Baltimore county court. This was art action of slander. It is deemed unnecessary to state the slanderous words stated in the declaration. They charged the plaintiff, (who was án unmarried woman,) with fornication. The words proved were only such from which the fornication might have been inferred tin the defendant's prayer, the court, \_Hanson, A. J.] refused to direct thé jury, that the plaintiff was not entitledto recover. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.</p>

á?p3ai. from Baltimore county court. This cause was before this court at June term 1830, the judgment of the county court was reversed, and the case scut back with t procedendo. Seed Ilarr. Johns. 117. It came again before the court, at the -instance of the plaintiff below, ■upon a different question; and the facts in the case are felly stated in the opinion given by this court.

' Appeal from Harford county court., This was an action-on tiie case, and the declaration alleged, that B. Bond had obtained sundry judgments against the plaintiff, (now ap. pellant,) upon which writs of fieri facias had been issued and placed in the hands of Jason Moore, then sheriff of the county, who in pursuance thereof had levied the .same up» on the plaintiff’s property, and had advertised the same to he sold on the 19t)i of August 1817, on which day theplain ■ tiff,…

<p>"Under the act 17S6, chf ¿5, to direct descents, and Sts supplements, a purchaser of the interest of the eldest son, &e. otan intesta te* has it right to elect io take theint.estates ■real estate at the valuation of it by the commissioners</p> <p>A legal estate in severalty does not vest in a party electing to take under the said act of descents, unless lie pays the other heirs their proportions of the va. luation or execu* tes bonds to pity the same.</p>

court. This whs aft action on the case against a sheriff for a false return. The case was this: — At March term 1818, of Baltimore county court,, the plaintiff, Harding, recovered judgment against á certain Hugh Boyle, for the sum of $>¿3000, with, interest from the 2Sd of July i 816, and costs; which was affirmed at June term 18^§, in the court of appeals, with stay of execution until the 15th of December in samé year.

Errór to Baltimore county court for the removal of a criminal prosecution for an assault and,battery, in which a. •verdict was found, for the state, and judgment thereon arrested. To reverse the decision of the county court th$ present writ; of error was brought on tjie part of the state.

This Was ah action' on the case, brought to March-term 1820. At that term the defendant, (the appellee’s intestate,)- appeared, and a rule was laid on the plaintiff, (now appellant,) to-file his declaration, and. he had until the first Monday of the next term to do so.

.This was an action,of ejectment to recover part of a tract of land called Smith’s Desire, containing 135 acres. The general issue was pleaffecL 1.

Arnold, for §617 09, payáble six months after date to the defendant, (the appellant,) or order, and by him endorsed to J. Snyder, who’ endorsed it to the plaintiffs, (the appellees,) and it was by them endorsed in blank. The defendant being ruled to pléad to tlie declaration, made default.

The case is fully stated'in the decree of the Chancellor, and in the opinion delivered by this court. Kilty, Chancellor. This suit was fully argued by the counsel on each side. Since which the proceedings have been considered.

This was an action of debt, brought on the 24th of February 181(5, on a writing obligatory, executed on the 25th of April 1797, by John Black, (since deceased,) and James Salisbury, (the defendant and now appellant,) to James Black, whose administrator de bonis non with the will annexed, the plaintiff below and now appellee is, reciting, that “whereas George Black, deceased, did duly make and execute his last will and testament in writing, and therein and thereby, among…

Aiwai. from Kent county court. An action of debt '«as brought on a writing obligatory, dated the 18th of August 1818, executed by Canneil, (the defendant below and mow appellant,) to BP Chun, (the plaintiff below and appellee.,) reciting, that “whereas the said (-aimed hath agreed to sell and convey to the said BP Clem, a certain lot of woodland containing thirty-seven teres, (which the said Canneil purchased of a certain George W. Thomas, as trustee for the sale of the real…

The object of the fajll in this case,, which vyas filed by the appellees against yke appellant and John Bell, in the court of chancery, on ihe 22d of September 1812, was, among other tilings, to recover from the appellant the sum of 540,000, which the bill alleged had been deposited by one Marcus Ileyland in the hands of the appellant, to and for the use and benefit of the appellees.

<p>Under -the .act bf 1766, clu 14, s- 4, bne justice of the peace ins no authority to take the .probate of a letter of attorney for the acknowledgment Of tin* deed of a nonresident grantor./</p> <p>Nor has lie any such authority untier any other act of assembly, or un tier the common</p> <p>The próbate before mentioned under the said apt of 3766, must be either in the provincial or county court, oi* before one justice of the provincial court, or fwo justices of the county t court, where the land lies.</p> <p>The Safest'course 5s to «roye the lei* 'ter or attorney before the same per* sons who* take the acknowledgment of the conveyance; and qtiere, whether it is.not the only course?</p> <p>A deed of a nonresident grantor} acknowledged by an attorney under a letter of httorney proved before one justice of the peace only, is in-</p> <p>If possession 1ms gone with such a deed, yet if a plaintiff- in eject* tnent produces the deed as evidence of his title, títere ©an bé no presumption that the same was legally executed and acknowledged, tho* if it was not produced, a legal conveyance might be presumed»,</p> <p>If a party objects to the competency of a witness offered on the adverse side, and the court sustain the objection, and the party making it, afterwards waives it, and consents that the witness lie examined, die party offering the witness has no right to require of the court to decide that he is competent independent oí the waiver of the object.on</p> <p>A Certificate of a clerk of a county court, that the two persons, before whom a deed purports to be acknowledged, were attlie time of such acknowledgment and still are “two justices of the peace for the county aforesaid, and to ah certificates given .by them as such, due fai'h anti eredi' is and ought to be given, a* well in courts of justice as thereout ,,s is a sufficient certificate to authorise the recording of the deed among the records of the county in which the land conveyed I» such deed lies;</p> <p>A mixed possession will not prevent the presumption of a deed, unless the same is held by both parties claiming* title to the same land.</p> <p>Where a plaintiff in ejectment produces a patent to B for the land for which he sue«, dated in 1774* and produces a deed for the same land from C t>> F, dated the 7th of November 1785, containing a recital of a deed also for the same land} from B the patentee, to C, and proved a possession in C, of a part of said' land, until 1785, and in F, claiming under him, and in the lessor of the plaintiff claiming under T, and all claiming to hold such possession under a title to the whole tract* u voHYeyance from the patea® tee to C, may be presumed*</p>

this court. It was an! action of ejectment for a tract of land called Frankland. A statement of. facts was agreed to, in which many things' were stated which are unnecessary to be mentioned here, as the question turned wholly on the devises in the will of Charles Bigges, dated the 28th of January 1Z41. The devises are as follows, viz» ' “Item.

Assumpsit for money due for paving taxes, imposed upon the property of the defendants, (the appellees.) They pleaded non as-sumPs^‘ .At the trial the… Held: as tenant by the courtesy, the other undivided moiety of the said lots, in right of his deceased wife, who wás tlie other heir at law of said Fell; and that the amount of the said paving taxes, so charged Upon the said lots of ground, so held by the said defendants, are as follow, to wit: On Dutany-street $3500 28, oil…

) .Plea non assumpsit. At the trial, the plaintiffs gave in evidence an act of the general assembly, passed at No vember session 1796, ch. 68, entitled, “An act to erect Baltimore town, iri Baltimore county, into a city, and to incorporate the inhabitants thereof. ” They also gave in evidence, another Act of the general assembly, passed at November session 1797, ch. 54, entitled, “A supplement to the act, entitled, An act to erect Baltimore towii, in Baltimore county, into a…

This vfas an action of assumpsit, instituted by Charles Cappeau, the áppellee’s inféstate'; ágáinst the appellant, to recover the value of four cases and three bales of dry goods, shipped on board a vessel of the appellaiit,- called the Cecily by the said intestate, to be transported for freight froth Baltimore to Norfolk, and which the declaration alleges were wholly lost by the negligence of the appellant; The declaration states, “that heretofore, to wit,- bit the eleventh…

The bill, which was filed by the appellee, (the complainant below,) was for an account, and to recover from the defendant, (the appellant,) the balance that might be found due by him to the complainant. It is unnecessary to state the facts set forth in the bill; they were substantially denied by the answer. A commission was issued to take testimony, which was executed and returned.

Pléá, Non irifregit conventionerm Thé facts are sufficiently stated iii the opinion of this court. Thé cause was tried iii the coürt below¿ before Archer, Ch. J. and Hanson and Ward, J'. and came to this court on three bill's of exception's, taken to their opinions by the.appellant, who was the plainiilF below.

<p>Appeal from Saint Mary's county court. This is the Same case reported in 5 Harr, fy Johns. 414, and sent back to the county court for a new trial under á writ of prat cedendo.</p> <p>■ 1. At the new trial in the county court; the plaintiff, {now appellee,) read in evidence the articles of agreement, and the record from Baltimore county coiirt; which were given in evidence on the former trial, and then gave in evidence, that the negroes, ill the articles of agreement mentioned, were the descendants of a negro woman called Sail, once the property of Nicholas Sewalh That the said Sewall, sometime between 1800 and 1803, informed the witness, that after Sail’s intermarriage with David Sommei’ville, he agreed that she should attend her husband to Baltimore, and that if lie would pay him, after a certain, time which the deponent did not now recollect; a sum of money, the amount whereof the deponent does not recollect, that Sail should bci the property of her husband. That Sail left the said SewalPs house, and went to Baltimore with her husband* The plaintiff then gave evidence, that betwéenl809 and 1813, David' Sommerville, and Nicholas Sewall in his life time, had án interview* in which Som~ merville expressed his fears that his wife might be interfered’with as a slave and runaway; and that it was then understood between the said Sommerville and Sewall, that the contract, in relation to the said negro Woman, was affirmed, in consideration of having raised two children which he was either to send home, or had sent home, to the said Sewall, and a sum of money which was then paid. The defendant then gave in evidence, that the said negroes, in the agreement mentioned, were paid over by Raphael Neale and Lewis Ford, executors of Nicholas Sewall, to the defendant as guardian to the children of the said Nicholas Sewall. Whereupon the plaintiff offered to give evidence ■by Raphael Neale, one of the executors as aforesaid; to the competency of which witness to give evidence the defendant objected; but thé court, QStephen, Ch. J-3 would not sustain the said objection, but was of opinion that the said •witness was competent to give evidence, and did permit him to give evidence. The defendant excepted.</p> <p>2. The plaintiff then proved by Thomas Lynch, a witness sworn on his part, that between the first and the tenth of May 1817, six negroes were brought on board his vessel lying at Baltimore, and were brought by him to the bouse of the defendant, and delivered to liiip, and claimed' by htm as bis property; that lie afterwards heard the defendant say, that some of those negroes were in dispute in Jialtimore, and that the plaintiff was concerned, lie then gave in evidence, by Peter Gough, that the defendant informed him that he was present at a conversation between Gen. Winder and the plaintiff in August 1817, in which the plaintiff instructed Gen. Winder, who had appeared as counsel in the action of replevin before mentioned, that ha would not authorise him any longer to appear at his instance ■and request to defend the said writ. By consent of the parties, a record of the proceedings in the court of appeals-, tin the former appeal, was given in evidence.</p> <p>The jury then retired, and after some timé engaged, caused the following paper to be transmitted to the court. "‘The jury will thank the honourable court to instruct them which of the parties was legally bound to defend the suit of replevin of Somirlerville vs. Fenwick in the record, mentioned.” Whereupon the court, [Stephen, Ch. J. and Pla'ter, A. J.J by consent of counsel engaged in the cause, ordered the jury to the box, and gave them the following direction and instruction: That the plaintiff in this cause not being a -party to the action of replevin, in the said record mentioned, could not defend said 'action, and was not bound to do so. Thai Fenwick, the defendant in the said action of replevin, and the defendant in this cause, was not bound to defend the said action of replevin, unless he thought‘fit, but if he did not defend the Same, he would bé liable to the plaintiff in this action-, if the plaintiff prove a ■paramount title in the plaintiff in the said action of replevin, by parol or other evidence. The defendant excepted; and the verdict and judgment being against, him, he appealed to this court.</p>

Action of Assumpsit. The' declaration contained four counts — A That Key, the defendant’s testator, (now appellant,) had hired of the plaintiff) (the appellee,) sundry slaves for the use of K. K. Heath, in consideration whereof, Key then and there, in writing, underfoot and faithfully promised the plaintiff to pay him §80 for each and every slave, amounting in the whole to §480. 2.

Jippeal from Harford county court. This was a special action on the case.

The facts appearing by the bill and answer, were these: On the 30th day of August 1819, the appellant was appointed provisional trustee for the benefit of the creditors of Jlmos Jl. Williams, under tire act of assembly, entitled, “An act relating to insolvent debtors in-the city and county of Baltimore,” 1816, chap. 221. On the 15th October 1819, the appellee was appointed permanent trustee under the same: law.

The bill of complaint in this case was filed by L. Stocked, the executrix and devisee of John Stockett, and on her death a bilí ei revivor wa8 filed in the names of the administrator,de bonis non of John Stockett, and of 1he executor and devisee of L. Stockett, (now appellees.) The original bill wasfoi the purpose oí redeeming a tract of land, and some slaves, which were conveyed by John Stockett to the defendant, (now appellant,) bv (iced dated the S81I1 of ¿une 1816. rlhp…

ArPE«. from Montgomery county court. The now appellant, as plaintiff in the court below, ip order to obtain an attachment under the act of 1795,. ch. 56, produced to. the clerk of that court an affidavit, with a promissory not® thereto annexed, together with a warrant from a justice of the peace of that county, directing the attachment to be is-, .sued.

I,t was an action of replevin, instituted by the appellee against the 'ap»„ pellant, to recover a number of slaves. A case was stated for the opinion of the court below, upon which that court, (Ridgely and Kilgom:, A. J.), decided in favour o£ the appellee. The facts of .the case stated sufficiently appear in the opinion delivered by this courn

The bill of the complainant,. (now appellee,) filéd, against William Beanes, and Stephen and. Richard W. West, (the appellants,) on the 16th of September 1818, stated, that on the 9th of April 1798, Hannah West, deceased, being seized of a large real estate, by deed conveyed to said Beanes, his heirs ,and assigns, all her real estate, in trust for her‘own use during the term of! her natural life, and from and after hér death to be equally divided between her sons, the said.

<p>Appeal from Baltimore county court, from q, judgment rendered in favour of the defendant in that court, in an action of replevin.</p>

* In 1821 of 1822, Wm. Godfroid, junior, died; and in May 1822, tlie appellees bled their petition against the appellant, as guardian, demanding the sum bequeathed to Wm,, Godfroid,* junior, by his father, and which, by the accounts of the appellant, appeared to be in his hands as guardian. .The words of W'illiam Godfroid’s bequest to his son are, “I order my executor, hereafter named, to receive from my estate the suni of six thousand dollars, as a legacy to be paid to…

Charles Gassaway, the father of the female appellee, died in the year 181£>, having by his will, among other things, bequeathed as follows: “I give and bequeath to my executors hereinafter named, or the survivor of them, the sum of six ihoiisand dollars, to be put to interest, or vested in some stock or funds within one year after my decease; and the interest arising therefrom, I direct my said executors to pay annually to my daughter, Polly Catlett, (the female appellee,)…

On ' the ISth of April 1821, a petition •was filed by the appellee, who is the wife of the appellant, staling, that her husband had turned her out of his house, and refused to permit her to live with him, or to make any reasonable provision for her support, and that she was left destitute., and that he was a man of considerable property, the girpier part of whih he obtained by his marriage with her.

“I give and bequeath to my dear wife, Agnes Lux, for and during her natural life, my tract of land and plantation, palled Ghatswortk with the dwelling house, and all the buildings and improvements thereon, (save and except, the rope-walk.n) “I give, a.nd bequeath to my dear son, George Lux, his heirs an ■ Prayer, that the defendants may be decreed to release all right, title and claim, or s ipposed title, in and to the said land purchased and possessed by Lammot as…

Assumpsit on a promissory note by the holder against the payee. The defendant, (now appellee) pleaded non assumpsit, arid the act of limitations. The writ issued on the 23th of October 1821. At the trial the plaintiffs produced in evidence the following note: “85,350. Allegany County, Dec. 28, 1819.

In fhe report oi-this case in 5 Harr. Johns. 499, a mistake has occurred, in a part of the court’s opinion delivered on the third bill of exceptions, which R is deemed proper to correct. In that bill of exceptions it is stated, that the plaintiffs below, (the appellees.) having read in evidence the promissory note, on which the action was instituted, offered in evidence a protest of the note, made by anotary public.