Volume 6 — Maryland Reports

This was an action of debt, brought on the 4th of September 1850, by the appellee against the appellant.

Assumpsit by the appellee, as holder, against the appellants, as endorsers of the note, stated in the opinion of this court. Plea non-assumpsit. Exception.

Assumpsit by the appellees against the appellant, to recover a balance due the plaintiffs on account of the sale of certain goods, (fourteen bales of osnaburgs and twenty-five bales of drills,) alleged to have been first sold by the plaintiffs to defendant, and afterwards, at his request, resold by them on his account. The declaration contained the common money counts. Plea, non assumpsit.

Appear from .Cecil county court. This was an action of trespass on the case, brought on the 29th of October 1847, by the appellees against the appellants, to recover damages for an alleged injury to the plaintiffs’ water-right and .overflowing their land, occasioned by the erection of a dam in 1828 on defendants own land below that of the plaintiffs. The pleas were non cut. and limitations. Exception.

This was a petition for freedom filed by the appellee, who claimed his freedom under the will of Richard Pierce. The case was tried upon the issue of freedom vel non. 1st Exception.

Trover by the appellees against the appellants, to recover the value of certain goods alleged to be illegally held by the defendants. The suit was begun on the 3rd of September 1849, and was entered for the use of Birckhead and Pearce, on the 14th of January 1851. Plea non cul. 1st Exception.

The bill in this case was filed by the appellant, for the sale of certain real estate which had been mortgaged to him by the appellee, Ames. The lend was sold, and upon the distribution of the proceeds the question arose, whether the appellant or the appellee, Day, was entitled to a priority under the circumstances stated in the opinion of this court? Two accounts were stated, one giving priority to Jchte app.ellaní and the other giving preference to Day.

The proceedings in this case instituted by the appellees, were by way of attachment against the property of a married woman, under the act of 1842, ch. 293.

The fact's agreed upon by the parties are briefly these: A paving tax for the paving of Biddle street in the city of Baltimore was assessed upon the real estate of one Alcoek, who subsequently sold the property in-fee to Hall, who afterwards leased a part of it to Donaldson-.

This was a scire facias, sued out by the appellees in their own names, to revive a judgment which had been recovered by the Bank of Alexandria against the appellant. The writ recites the recovery of the judgment in Baltimore county court at its September term 1838, and states that it was assigned by the bank to Bernard Iiooe and others, and- by them to the plaintiffs in the writ.

The action was assumpsit by the appellee against the appellants.- The pleadings and all the facts ill the case are the Same as in the former appeal, with the exception of the additional proof by the defendants, that Rosenthal and Mosher applied for the benefit of the insolvent laws, on the 31st of January 1845, showing by their schedule $9000, of debts due by them, and no property but that sold by the defendants, and that Glenn was duly appointed and bonded as'their…

Jlssumpsii by the appellee against the appellant, to recover upon a note given by the defendant to the plaintiff for capital shares of its stock, conformably to the act of 1813, ch. 55, the company’s charter.

Ejectment by the appellant against the appellee for a tradii of land'called “Aquila’s Delight.” Plea, non cul, and defence on warrant;- 1st Exception. The plaintiff offered in evidence a patent fertile land in question, granted to him on the 18th' of NovemberS844.

Appeal, from Baltimore county court. Assumpsit by the- appellee against the appellant, on a subscription of $500 for the purpose of erecting an Atheneum in the city of Baltimore. The suit was brought in- September 1848, by the plaintiff, as treasurer of the fund for building the Atheneum.

The bill in this case was filed by the appellee against the appellants and others, for an account of the moneys and effects of the maternal grandmother of the complainant’s deceased wife, who was the daughter of George Calvert the father of the appellants. The appellee was tenant for life, and his children remainder men in fee, of the fund in controversy. This fund called in the proceedings the “maternal succession,” arose in the following manner.

Assumpsit by the appellee as adm’r of Wood, against the appellant, to recover money paid by his intestate upon an agreement for the sale of lands. The nar contains a count for goods sold and delivered, and the common money counts including the count for money had and received. lsi Exception.

AppEAL'frboa the Circuit Court of Kent County. This was a suit by the appellants against the appellee, docketed by consent in the' court below, to determine the question whether the plaintiffs have any title under the'will of John Mason; executed in- 1826, to George and Jervis; two negroes, therein mentioned.- The material points of this will are stated in the opinion of this court, and the statement of facts upon which the cáse was tried below further shows: that the…

Error, to the Circuit Court of Frederick county. The defendant in error was indicted and tried for the murder of Edward Flynn. The indictment contained two counts, both charging murder. The jury rendered a verdict of “ guilty of manslaughter,” which was received and recorded.

•Cross-Appeals from the Court of Chancery. The bill in this case was filed on the equity side of Baltimore county court, on the 10th of September 1830, by Bullitt and others, creditors of Walter Worthington, to vacate .three deeds executed by said Walter to his son Samuel Wor.thington.

<p>A bill in equity, sworn to by the party and containing statements in reference i» his title to certain lands, may be used in another case in chancery affeeting'the same lands, as evidence against one claiming under such party in’ regard to the title under which the party so claiming liolds.</p> <p>Where possession alone is relied on to confer title to land, it must be adverse,exclusive and continuous for more .than twenty years.</p> <p>Where' land is sold at sheriff’s sale, the title of the defendant in the judgment is vested in the purchaser by operation of law.</p> <p>A right' of entry cannot be barred by possession alone unless it be adverse,exclusive and continuous-for twenty years, and any recognition or acknowledgment of such right hy the party in possession, will prevent his possession? from operating as a bar to such right until twenty years after the acknowledgment has been made.</p> <p>Payment of part of a mortgage’ prevents the bar of limitations for twenty years afterwards, though- the mortgagor may have been in possession for upwards of nineteen years prior to the- payment.</p>

Debt by the appellees, as executors of David Williamson Sen., brought on the 16th of March 1838, against Elizabeth A. Mitchell, executrix of James D. Mitchell, and after her death contained against the appellant, as administrator d. b. n. c. t. a, of said James D. Mitchell, upon a bond for $2000, executed by David Williamson, Jr., as principal, and said James D. Mitchell, as surety, dated the 17th of August 1833, payable to the plaintiffs, executors as aforesaid, at any time…

Appear from the Court of Chancery. A bill was filed in ^chancery on the 16th of January 1841, by the appellee, Samuel Fenby, against the appellant, Joshua Hitch, and William Hitch, alleging that the defendants had executed to the complainant two bills of sale of personal property, the one dated the 17th of May 1838, and the other the 18th of November 1840, to secure the payment of a large sum of money-due from the grantors; that a portion of the property embraced in the…

The defendant appeared, and pleaded not guilty and took defence on warrant, which latter defence the court on motion of the plaintiff ordered to be strickg defendant then applied for leave to withdrav^nj^^Mf^ff^ ¶ guilty, and for leave to ascertain his defencejjtbut this application the court refused, and on this state the case was tried. ji Exception.

Assumpsit by the appellees against the appellants, to recover the sum of $818.66, in the hands .of jhe latter as stakeholders, it being the amount of damages assessed in favor of the owner of a lot of ground ip the city of Baltimore through which a ptreet had beep opened. The count ip the declaration relied upon was for money had and received. Plea, non assumpsit.

This was a bill of interpleader filed by the appellee, Clement, Hill, to have ascertained to whom he should pay a certain single bill for $3500, executed by himself as principal, and his mother, Mrs. Ann S. Hill as surety, in favor of Mrs. Cornelia Lansdale.

In this case three issues were sent from the orphans court to the circuit court of Prince Georges county, to try the validity of a certain paper purporting to be the will of Francis Edelen, deceased..

In this case issues to test the validity of the will of John Townshend were originally sent from the orphans court to the county court of Prince Georges county for trial, and thence removed to Anne Arundel county. This is the third appeal in the case; the first is reported in 7 Gill, 10, and the second in 9 Gill, 506. At the trial under the last procedendo two exceptions were taken by the caveatees; which are the only ones presented on this appeal. 1st Exception.

Appears from the Orphans Court of Charles county. These were two cases between the same parties, and will be reported together.

<p>A. defendant cannot, in answer to a sc,ire facias, set up any matter which might have been relied on as a defence to the original action, and hence he cannot plead to a scire facias that he was an infant when the original judgment was obtained against him.</p>

This was an appeal taken by the appellant, Jacob M. Buckey, from an order of the court below (Nelson, J.,) overruling a motion made by him to amend a writ of fieri facias, and also from the judgment of said court making absolute a rule obtained by the insolvent trustee of the appellee to quash said writ. The facts of the case are fully slated in the opinion of this court.

Crqss-Akpeals from the Court of Chancery. The bill in this case was filed in the equity side of Baltimore county court, on the 25th of August 1845, by McDowell and' others, creditors of Elizabeth Osborne, to vacate three conveyances made by her to Goldsmith. The first, dated the 14th of July 1841, conveying a lot of ground for $2000.

This appeal was taken by the appellant from the refusal of the orphans court to order the appellee, as executrix of Lloyd M. Lowe, to deliver over to him certain personal estate which had been devised to him by the said testator, and from an order passed by said court directing the said executrix to sell as much of the personal estate as may be sufficient for the payment of all outstanding debts, claims and commissions.

Cross-Appeals from the Superior Court of Baltimore city. Jlssumpsit by Alexander and Tyson against Webster and Speed, as administrators of Macauley, to recover damages for the non performance of the following contract, entered into between the said plaintiffs on the one part and the said Macauley on the other, dated the 26th of July 1836: “It is hereby agreed and admitted, that John H. Alexander and Philip T. Tyson have bargained and sold unto Patrick Macauley one undivided…

<p>A wife, who with her husband resided in Maryland, being entitled to a distributive share of an estate in Louisiana, executed to her husband a power of attorney to collect the same, by virtue of which he appointed two persons in New Orleans as agents to receive the money, to whom a portion of the proceeds of the personal estate was paid over before the death of the husband, and was transmitted to Maryland by a draft drawn after his death and received by his executors. Held :</p> <p>That the receipt of this money by these agents, whether they bo regarded as the agents of the husband or of the wife, was equivalent to the receipt by the husband, and was a reduction into possession by him of the claim of his ■wife, and precluded her right to the same by survivorship.</p> <p>If a debtor of a married woman pays to her during coverture the debt, the payment enures to the benefit of the husband and the money becomes absolutely his.</p> <p>The husband is entitled absolutely to all sums of money received by a third person on account of liis wife during coverture.</p> <p>If husband and wife authorise a third person to receive her chose in action, and he does receive it, her right by survivorship is gone, though it never reaches the possession of the husband..</p> <p>If husband and wife unite in a letter of attorney to another to collect a legacy and he-receives it, the property by that act is vested in the husband alone.</p> <p>Though the law allows a married woman to hold and enjoy property to her separate use, yet such a trust should be clearly expressed before a court will sustain it against the rights of the husband.</p> <p>Where a husband during coverture proposes to settle upon his wife a separate estate out of his own property, the act by which he does it must be clear and unequivocal.</p> <p>The words “ for me and in my name,” in a power of attorney given by a wife to her husband to collect a claim due her, even if such power of attorney be regarded as the act of the husband, are not sufficient to create a separate estate in the wife in the money received under it.</p> <p>The words “ for her use and benefit,” employed in making a gift or transfer of property to a married woman, do not convey a separate estate to her.</p>

Replevin by the appellee against the appellant, to recover several negroes alleged to belong to the plaintiff’s intestate. By agreement, all errors in pleading were waived and either party was allowed to give in evidence any facts that would be admissible under any form of legal pleadings. Exception.

<p>Appeal from the orphans court of Charles county.</p> <p>Ann Ward by her will bequeathed specific legacies consisting of negroes who were named, and other specified articles of personal property to the appellees. Some of these bequests of negroes were during the life of the legatees and others in fee. She then gave to the appellants pecuniary legacies of various sums of money. All the property except the specific legacies was exhausted in paying debts and expenses. The appellants then filed their petition, asking for an order directing the executor to sell the negroes and other specific legacies, and distribute the proceeds pro rata among all the legatees. This the court refused to do, but passed an order directing the legacies for life to be delivered over to the legatees for life, and dismissing the petition. From this order the petitioners appealed. Particular parts of the will, and the opinion of the court below, will be found in the argument of counsel.</p>

<p>If it does not appear by the record that the party appealing has rights which have been injured by the decision below, such decision will not be reversed though it is erroneous in reference to other parties.</p>

Error, to the Circuit Court for Anne Arundel county. The plaintiff in error was indicted and tried as stated in the opinion of this court, and being found guilty, his counsel moved in arrest of judgment, for the following reasons: 1st. Because the offence charged in the indictment is not a crime under the laws of this State for which the prisoner can be punished. 2nd.

Assumpsit by the appellee against the appellant, on an account against the estate of Henry D. Platton, the defendant’s intestate. The declaration contains two counts: — 1st, that said Hatton in his lifetime was indebted to the plaintiff for sundry articles properly chargeable in account, as by a particular account thereof herewith exhibited appears; 2nd, at quantum meruit count for goods sold and delivered by the plaintiff to said Hatton in his lifetime.

The bill in this case was filed in the summer of 1848 by the appellees, who were creditors of Robert W. Bowie, deceased, who died in January 1848, for the sale of his real estate to pay his debts. Mrs. Bowie, the appellant, who is the widow of the deceased, was made a defendant to this bill, and by her answer, filed in December 1848, set up a claim to a portion of said real estate. The court below, (Crain, J.,) rejected her claim, and from that decision she appealed.

Appear from the Court of Chancery. The bill in this case was filed by the appellants against the appellees, for partition of the real estate of Nathan Haines, deceased, among the parties to the suit, who were his heirs at law. The appellees resisted the division of lots Nos. 1 and 2, upon the grounds stated in the opinion of this court, and the chancellor, (Johnson,) decided that these lots were, not liable to partition. From this decision the complainants appealed.

This appeal was taken by the appellant front the judgment of the court below, (Frederick A. Scht.ey, Special Judge,) sustaining a demurrer to his plea to a scire facias. The facts appearing on the record are fully stated in the opinion of this court. By an agreement of the counsel for the parties it appears, that the original judgment was recovered on the 10th of October 1843, subject to Moore’s discharge under the insolvent laws.

This writ of error was sued out by the State, from the equity side of the circuit court for Howard county, alleging error in the judgment of said court, (Brewer, J.,) remanding this cause to the criminal court of Baltimore city. The facts of the case are stated in the opinion of this court.

<p>Appeal from Washington County Court.</p> <p>This was an action of assumpsit originally brought by the appellees against Price, Martin and Johnston, in March 1846. At March term 1847, Johnston’s death was suggested, and a separate suit docketed and prosecuted against the appellants, his administrators. In November 1847, both cases were referred underothe act of Assembly, to certain referees who made an award in March 1848. To this award the record states, “the counsel for the defendants, Johnston and Fischer, administrators as aforesaid, filed the following exceptions.” These exceptions were not signed by counsel, nor entitled as of the case. The award and the exceptions are the same as in the case against Price ¿r Martin, reported in 4 Md. Rep., ,514. These exceptions the court overruled, and gave judgment on the award for the plaintiffs.</p> <p>Afterwards, in December 1849, the defendants obtained a rule to show cause, why said judgment should not be stricken out, or at least opened, and they allowed to plead plene .administravit, on the ground of error, mistake and surprise. They filed various affidavits in support of the rule, and others were filed on the other side, the purport of all which is sufficiently stated in the opinion of this court. This rule the court (Wieser, A. J.,) discharged, and refused to strike out the judgment, from which judgment (as the record states) the defendants appealed.</p> <p>After the argument of the case in this court was commenced, the counsel for the appellees insisted, that the appeal was confined to the propriety of the action of the court below, in refusing to strike out or open the original judgment, and that that judgment was not open for review here. The counsel for the appellants then, under the rule of this court, suggested a diminution, on the ground that the appeal was general, as well from the original judgment as from the refusal to strike it out, and that there is nothing in the record below so restricting the appeal. The counsel for the parties then made the agreement stated in the opinion of this court.</p>

Assumpsit, by the appellant against the appellee, upon a subscription for four shares of the capital stock of the plaintiff at $25 per share. Plea, non assumpsit. 1st Exception. The plaintiff offered in evidence the subscription list, to which the defendant’s subscription for four' shares was admitted. By this subscription, the subscribers agreed to pay to the said company $25 for each share subscribed.

This was an appeal from the refusal of the court below to grant a writ of mandamus, commanding the appellee to surrender to John Cramer, who was appointed by the appellants keeper of the court house of Washington county, the keys of said court house. The facts of the case are fully stated in the opinion of this court.

Appear from the Orphans Court of Washington county. The record in this case shows, that. Henry Lefever died leaving the appellant Catharine, his widow, and several minor children, one of whom was John Z. Lefever.

Appead from the equity side of the Circuit Court for Washington County. The bill in this case was filed on the 16th of April 1852, by the appellees, to correct an alleged mistake in a deed executed by the appellants to them, and one James Malone' now deceased, dated the 17th of October 1837. The allegations of the bill and answer, and the facts of the case, are sufficiently stated in the opinion- of this court.

<p>The act of 1849, eh. 229, operates upon wills made before'its passage, where the testator dies after the first day of June 1850.</p>

<p>The orphans court passed an order directing certain executors to state their final account, and specifying the items with which they should be charged, and on the day following the executors stated their account in pursuance of this order, which the court approved, and ordered a distribution of the estate in accordance with the account. Held :</p> <p>That upon an appeal from the order of distribution, the first order directing the account, and all questions arising upon the account itself, were open for review.</p> <p>A testator devised to his wife certain lands, “ which I value at fifty dollars per acre, during her natural life, ” and if the lands so devised do not amount to one-third of his estate, his executors were to make up the difference to his wife. Held :</p> <p>That the design of the testator was that his widow should take the land, if she stood by the will, at the price he placed upon it, and in ascertaining her third of the estate tiie land should be valued and charged at fifty dollars per acre.</p> <p>Where land is devised to a widow for life, and she has enjoyed the whole during her life, her administrator cannot claim the allowance for her life estate which the widow would have received if the land had been sold during her life under a decree in equity.</p> <p>Where an executor’s account is of several years standing, and the balance due the estate by it has been distributed, it is error in the orphans court to vacate it without any evidence of its incorrectness, and again bring this balance into the estate.</p> <p>Where a testator directed that his widow should he permitted to purchase a certain amount of his personal estate, without being required to give security for the same, his executors cannot be held responsible for more of the debt so contracted by the widow than they can recover from her estate, if she died insolvent.</p>

This appeal was taken from an order of the court below, dismissing the petition of the appellants. The facts of the case are fully stated in the opinion of this court.

This was an action by the appellee against the sheriff of Baltimore city, (the appellant,) under the statute of 8th Jlnne, ch. 14, for taking in execution the goods of a tenant to the plaintiff, without paying the rent due on the lease. Plea non cut. Exception. On the 1st of April 1850, a party became tenant of the plaintiff of a house and lot, at the annual rent of $560, payable quarterly, and continued such up to the time of this suit.

Assumpsit by the appellee, as holder, against the appellants, as acceptors, of a foreign bill of exchange. The suit was docketed by consent at the January term 1852 of the court below, and a rule laid upon the defendants to plead within fifteen days.

Assumpsit, by the appellees against the appellants, as acceptors of a draft, drawn by Edwin Farrar, of Richmond, Ya., on them for $750, payable to the order of T. & R. Crouch, by whom it was endorsed. Plea, non assumpsit. Exception.

A judgment was entered, in an action of assumpsit by the appellant against the appellee, in Washington county court, on the 20th of March 1847, in favor of the plaintiff, “ to be released on payment of such sum as Isaac Nesbitt shall ascertain to be due.” Afterwards, on the 31st of August 1847, said Nesbitt, the clerk of said court, filed an award under his hand and seal, in which he states, that “having carefully examined the papers filed up to the present date, finds to be…

Ejectment, by the appellees against the appellant, for a tract of land lying in said county, described in the declaration by metes and bounds, containing two hundred and three and a quarter acres, more or less. The nar counts on two demises to James G. Hardy, the nominal plaintiff, the first from Charles H. Hardy and others, and the second from Evan D. and Ormond Hammond. Plea, non cul. and defence on title. ls£ Exception.

Replevin by the appellee, to recover two slaves alleged to belong to the estate of his testator, in the possession of the appellant. Pleas, non cepit, property in defendant, non cepit infra tres annos, and actio non accrevit infra tres annos. Exception.

The orphans court, upon petition of the appellee, ordered the appellant to bring into court all the money in his hands belonging to his ward. From this order the guardian appealed.