Volume 7 — Gill & Johnson's Maryland Reports

The appellees Samuel Ridout, and Tench Ringgold, filed a creditors bill against the appellants Henry A. Callis, and George Semmes, (and against Joseph Kent, who did not appeal,) on the 7th of January, 1832.

This was an action of Replevin instituted by the appellees against the appellant on the 1st of June 1832, for the corporate seal, and record book of the stockholders and trustees of the Academy.

See 1 Gill and John 270, where this case will be found to hare been reported, and the appeal dismissed, as prematurely taken. The present hill was filed hy the appellee, as administrator de bonis non of Anthony Hook, on the 15th of December 1830, against the appellants, the administrators of John Hook and others, purchasers from him, or his representatives.

Mary’s County court. This was an action of beflevin, commenced by George Guylher as the executor of Wm. Guyther, against the appellant Benjamin G. Cole, on the first of February 1833, for negroes Maria and her issue. The death of George Guyther being suggested, the present appellee, as the admit. d. b. non of William, appeared, and became a party to the suit. The defendant pleaded property, non cepit, and limitations, to which there were issues. 1.

This was an action of Assumpsit instituted by the appellees against the appellant, as the second endorser of two promissory notes, drawn by Lewis Duvall, and endorsed by Richard Duvall, and the defendant; the first dated May 9th 1827 for $7857, payable sixty days after date; the other dated June 20th 1827, also at sixty days for §750. The declaration contained counts on the notes; on the special agreement hereinafter mentioned, and for money lent .and advanced.

Maby’s County court. Ejectment by the appellee, against the appellant, instituted 5th January 1822, for certain tracts, or parcels of land, called “ Cole’s Addition ” “Roberts Freehold,,” and u Pasture Ground,” being, as described in the declaration, “ the dwelling plantation of J. Williams, late of Saint Mary’s county, deceased. Defence -was taken on warrant, and not guilty pleaded.

Assumpsit by the appellee against the appellants, instituted March 24th 1828. Pleas non assumpsit, and limitations. At the trial the plaintiff proved, that some time in the year 1821 or 1822, the witness was keeping store in Lower Marlborough, and that upon one occasion the plaintiff, and Daniel Kent, (the intestate of defendant) met at his store, when Kent, told the plaintiff he had his acceptance for the -work done by John H. Breeze for him.

Appeals from Prince George’s County court. These were actions of Assumpsit, instituted on the 21st of September 1829, by the appellants', against the appellee, as the first endorser of two promissory notes, made by one Lewis Duvall, negotiable at the hanking house of the plaintiffs, payable each 60 days after date for the several sums of $7857 and $750, and dated respectively, on the 9th of May, and 20th of June 1827. The general issue was pleaded.

This was a petition for freedom filed by the appellee, on the 25th of October 1833. The evidence in the first exception, is sufficiently recapitulated, by his Honor Judge Stephen, who delivered the opinion of this court.

This was an action of Debt, instituted on the 19th of April J 832, by the appellee, against the appellants, and one E. M. Dorsey, (who died pending the suit) on a bond dated August 7th 1830, in the penalty of $5000, conditioned for the performance by said Dorsey, of his duty as trustee, for the sale of certain real estate, mortgaged by one Walter B. Brooke, to Lucy S. Brooke, and decreed to be sold by Prince, George’s County court, as a court of Chancery, upon a bill by the…

The appellees claiming under a deed of trust to them, from Murray if Payson, partners in trade, bearing date on the 30th of December 1826; exhibited their bill against the appellant, and his partner John Adair (since deceased) and Murray ip Payson, claiming an account of, and payment of the proceeds of sundry promissory notes, which it was alleged, had been deposited with the Adairs, by the agent of Murray if Payson, to secure the payment of $1500, loaned by the former to…

The appellants on the 19th of May 1823, filed their bill in the court of Chancery, against Thomas B. Hall and others, seeking to charge with the vendors lien, certain lands which Lewis, one of the appellants, had before that time sold to Hall.

This petition for freedom, was filed by the appellant, on the 19th of March 1833. It appeared in evidence, that the petitioner was the slave of Nathaniel Chew, the uncle of the appellee, and that, at the expiration of five years, from the death of the testator, and at the time of the trial, he was under the age of forty-five years, and capable of maintaining himself.

The appellee, on the 20th August 1832, exhibited his bill in the court of Chancery, praying for the sale of a tract of land called the “ Two Brothers,” which had been mortgaged to him on the 19th day of July 1832, by Richard Stewart, ,and Louisa his wife, to secure the payment of $281,27.

On the 18th of March 1820, a bill was filed on the equity-side of Baltimore County court, by a creditor of the late firm of Cochran £f Comegys, consisting of William Cochran, and John G. Comegys, for the sale of the real estate of the former, then deceased, upon the allegation, that the assets of the partnership, in the hands of the surviving partner, were inadequate to pay the partnership debts. Upon this bill, the real estate of Cochran was ordered to be sold.

The appellee, together with one Philemon Chew, for himself, and on behalf of the creditors of Henry M. Chew, and Company, filed their petition on the equity side of Prince George’s County court, on the 4th of July 1834, against the appellants, as the sureties of one Dorsey, who had been appointed by a decree of that court, a trustee for the sale of certain premises, mortgaged by a certain Walter B. Brooke to Lucy S. Brooke.

The present bill was filed by the appellants against John Cromwell, the appellees testator in his life time, and Philip Laurenson, a A full statement of the pleadings of the case, is extracted from the opinion of this court as follows:— The appellants allege, that Zachariah Maccubbin, late of Baltimore county, deceased, the ancestor of the appellants, being seized in fee simple of a large and valuable real estate situate in Baltimore county, and possessed of a large and…

The appellant on the 24th of November 1830, exhibited his bill against the appellees Hoffman, Bend & Co. and Stinchcomb and Small, charging that the latter haying petitioned for, and obtained the benefit of the insolvent laws, on about the 12th of .December 1829, he the appellant was appointed their permanent trustee, and duly qualified as such, by giving bond with security.

The present bill was filed by the appellants, and the Frederick County Bank on the 13th of February, 1832. Held: either to said trustees to he sold, or to those who have purchased a part of them, alleging, that as they were no parties to the suit, in which the decree was had, they are not bound by the same.

The appellant on the 28th of November 1832, filed a bill in the court of Chancery, against the appellee Oliver, the heirs of Joseph S. Berrett, and the heirs of one James Inloes, praying that certain deeds, and a decree of the court of Chancery, might be vacated and annulled.

The bill, the statements of which, were admitted by the answers alleged, that a part of said estate was situate in the city of Baltimore, in Maryland, and another part in the State of Pennsylvania. Thejsale of the whole was prayed for, that the proceeds might be distributed as aforesaid, after deducting therelrom, the amount of-an unsatisfied mortgage upon the Baltimore property, executed by the deceased in his life time.

On the 1st of February 1832, a bill was filed in the court of Chancery, by Robert Welch of Ben, a creditor, for the sale of the real estate of Samuel Harrison, deceased, for the payment of his debts, the personalty being insufficient for that purpose.

The appellant as the administrator de bonis non of Benjamin Franklin, and surviving husband of his widow and executrix, filed the present bill on the 23d of September 1833, to recover of the appellees the amount of a legacy bequeathed by Jacob Franklin (who died in 1817) to James Beale Jr., upon a condition which it was alleged, had not been complied with.

.Appeal from Baltimore County court. Ejectment for a tract or parcel of land lying in the city oí Baltimore, called “ Cole’s Harbour, ” commenced by John Creswell, the younger, in his life time on the 23d of November, 1830, and continued by his widow and devisee after his death. The defendant took defence on warrant, and pleaded not guilty.

<p>When a bond is filed with the county clerk, there to remain and become a public record, it is not in legal contemplation in the possession of the plaintiff' in an action brought upon it. His proferí therefore of such a bond is gratified by the production of an office copy, in answer to the prayer of oyer.</p> <p>In giving a form for sheriffs’ bonds, the legislature has not declared that a failure to comply therewith literally, shall avoid the bond, when executed.</p> <p>Substance, and not form, is to control the construction of legislative enactments, prescribing a mode in which acts are to be done.</p> <p>Under the act of 1715, cb. 47, the form of the acknowledgment to be taken by a feme covert, as grantor of a deed, is prescribed for her benefit; yet a literal compliance with the specified form has never been required.</p> <p>A bond which subjects the sheriff and his securities to all and the same obligations imposed on them by the act of 1794, ch. 54, sc. 8, is a substantial compliance with that act.</p> <p>The words “that if the above bounden B. as sheriff of P. G. county, do and shall well and faithfully execute the same office in all things appertaining thereto,” found in the condition of a sheriff’s bond, are sufficient to enforce the performance of the duty of detaining persons taken by him in execution, and do not alter Ms liability in respect to process not delivered to him — and the bond, although defective, in not noting those poitions of the formula given in the act of 1794, which relate to those duties, is still a substantial compliance with that law.</p> <p>The endorsement, “We the subscribers, two of the members of the Orphans’ Court for P. G. county, approved the annexed bond O. U.” found on an office copy of a sheriff’s bond, is sufficient to show, that the Orphans’ Court of said county determined upon the sufficiency of the sureties offered in such bond.</p> <p>The delivery of a sheriff’s bond by the justices of the Orphans’ Court to ,the clerk of the County Court to be there recorded, shows that the bond was so accepted by that court, as to be obligatory upon its signers.</p> <p>The failure of the justices of the Orphans’ Court to attest a sheriff’s bond, is no objection to .its validity. That attestation was not required for the benefit of the sheriff or his sureties, and formed no inducement to their entering into the contract; but was intended to multiply the facilities by which their liability would be rendered certain.</p> <p>The act of 1752, ch: 1, sec. 5, in requiring two witnesses to attest deeds of manumission designed to surround those acts with that form and solemnity, that slave-holders might be guarded against the execution of hasty and inconsiderate deeds of manumission.</p>

This was an action of Debt instituted by the appellant against the appellee, on the 18th of February, 1833, to recover the amount of a single bill, of which the appellee was the maker, for the sum of $1,569, dated 1st January, 1825, and payable to one John Somervell.

The appellant on the 18th of October, 1828, filed his bill on the equity side of the county court, praying for relief against a judgment obtained against him by the appellee Marbury, as the administrator of William Marbury, deceased, for the use of the other appellees. The bill charged, that said judgment was rendered on a bond, in which this appellant was bound as surety for one Benjamin Maclcall deceased.

On the 19th of October, 1827, the appellant exhibited his bill in the court of chancery against Richardson in his life time, alleging that he had obtained a judgment against the complainant in Montgomery county court, for a much larger sum than was really due, in consequence of the absence of a witness, by whom he, the complainant, would have been able to establish a considerable set-off.

Assumpsit by the appellant against the appellee, commenced 24th April, 1832. Issue was joined upon the plea of non assumpsit.

At the May Term of Calvert County court, 1834, the following indictment was found against the defendant in error: “ The Grand Jurors of the State of Maryland for Calvert County, on their oaths, do present, that Jesse Evans, late of said county, labourer, on the first day of March, in the year one thousand eight hundred and thirty-four, with force and arms, at the county aforesaid, two five-franc pieces, silver coins of France, of the value of one dollar, and eighty-eight…

This was an action of Covenant, instituted by the appellee, against the appellant, on the 20th of March, 1834, on a valued policy of insurance on freight.

This case was brought before the court of Appeals, under the provisions of the act of J832, ch. 197, from an order ot Prince George’s County court, dissolving an injunction which it had theretofore granted upon the application of the appellant.

On the 8th of May, 1832, the appellant and her husband, Joseph Deakins, (since deceased) filed their petition in the Orphans’ court of Charles county, praying that a certain paper writing, purporting to be the last will and testament of John Hollis, deceased, the former husband of the female petitioner, executed on the 6th of February, 1826, should be admitted to probate, and that the letters of administration, which had been granted on his estate to James Hollis, (the…

This was a scire facias issued in the name of the State of Maryland, for the use of Mary Kendall, on the 24th of June, 1833, to compel the appellant, as the surety of one Elijah Brookes, to pay to the said Mary, the sum of $120, as a compensation for the maintenance of her female illegitimate child, of which said Brookes was the father.

This was an action of Trespass, quare clausum fregit, brought by the appellant against the appellee, on the 31st of October, 1832. Issue was joined upon the plea of not guilty. 1.

This was an action of assumpsit instituted by the appellants, against the appellees, on the 2nd of June, 1832, to recover the amount of a promissory note for $215, made by the appellee in favour of the appellants, dated 20th of February, 1832, and payable 60 days after date. Issue was joined upon the plea of non assumpsit. 1.

The appellees on the 11th of March, 1833, filed their bill on the equity side of Washington county court, on behalf of themselves, and… Held: or which might thereafter be received, to be distributed among the complainants, and other stockholders similarly situated ; provided the same should not be more than sufficient to pay them $16 per share, with interest at the rate of 6 per cent, per annum from the year 1820; applying the instalments as they had been received by them,…

This was an action on the case, for obstructing a right of way, instituted by the appellants against the appellee, on the 18th of October, 1832.

The circumstances of this case, which was a scire facias against the heirs and terre-tenants of Lewis Duvall, to revive a judgment against him in favour of the appellant, Benjamin H. Mullikin, rendered by the court of appeals at June term, 1819, are fully stated by the learned Judge who delivered the opinion of this court. From the judgment of the county court in favour of the defendant, the plaintiff appealed to the Court of Appeals.

On the 16th of December, 1830, the appellant’s testator made and published his last will and testament, by which he constituted the testatrix of the appellee his universal legatee, and gave her all that he might possess on the day of his decease, and died in the year 1832 without revoking his said will.

The present bill was filed hy the appellees against the appellant, on the 12th of September, 1828, seeking to recove! from her, as the administratrix of one JVewton Bradlee, certain moneys and stocks, which it was alleged, were held and owned by the deceased at the time of his death. The pleadings and proofs, are fully stated by the learned judge who delivered the opinion of this court. At February Term, 1834, of Frederick county court,.

On the 6th day of January, 1830, Lucy .S. Brooke, filed her bill of complaint in Prince George’s county court, as a court of equity, against Walter B. Brooke, to foreclose a mortgage of real estate in Prince George’s county, and for a sale of the mortgaged premises., A decree was passed on the 27th of July, 1830, appointing her solicitor, Edwin M. Dorsey, trustee to make sale of the estate, or so much thereof as should be necessary for payment of the mortgaged debt.

Jissumpsit by the appellants against the appellee instituted on the 22d of July, 1833, for money had and received by the defendant for the use of the plaintiffs. Issue was joined upon the plea of non assumpsit. 1.

On the 24th of September, 1830, the appellant issued an attachment on judgment, against the Ellcton Bank of Maryland, rendered by the Cecil county court, at its April term, 1830. The writ was returnable to the following October term of the court, when the sheriff returned, that he had, in virtue thereof, attached $500 in the hands of the appellee Beaston, and summoned him as garnishee.

This was an action of Debt, brought by the appellant, against the appellee, as surety of one Richard P. Snowden, executor of Rachael Snowden.

The appellees on the 26th of October, 1833, instituted an action of debt against the appellant, to recover of him as the administrator of Peter Brengle, the amount of a judgment which the appellees had recovered against the deceased in his life in the Supreme court of the State of Pennsylvania.

This suit was commenced on the 15th March, 1832, by the appellant against the appellees, as sureties of Richard Peach, in a trustee’s bond, dated 21st of August, 1830, and approved on the 4th of September, 1830, conditioned for the faithful performance by Peach, of his duty as trustee, for the sale of certain mortgaged premises decreed to be sold upon a bill filed by the mortgagee, Jinn Hawkins, against the mortgagor, Henry S. Hawkins.

On the 24th of April, 1835, the appellees claiming to be creditors of the Bank of Maryland, filed their bill in the court of Chancery against the appellants, in behalf of themselves and the other creditors: praying that Morris, Gill and Ellicott, the trustees appointed for settling the affairs of the’ Bank, might render an account of the manner in which they had executed their trust; for an injunction to restrain them from receiving of the debtors to the Bank, at the par or…

Eleanor Gardiner, and purporting to be endorsed by her, and one H. S. Gardiner. The general issue was pleaded. 1. At the trial the plaintiffs give evidence by their attorney, that he called on the defendant to pay the note on which the present action is brought, and that the defendant after an examination of it, replied it was right.

This was an action of debt, commenced on the 28th April, 1831, by the appellee against Thomas Coward, Daniel Martin and Edward Martin. Pending the action, Daniel Martin died. The plaintiff declared upon the bond of Thomas Coward, (with Daniel and Edward, as his sureties) dated 23d March, 1830, in the penalty of $10,000, conditioned to perform the office of administrator of Thomas Coward, late of said county, deceased.

This was an attachment founded on a warrant from a justice of the peace of Cecil county, issued on the 4th August, 1828, upon the affidavit of George Houston. The cause of action was a judgment, which the appellant recovered against David Wilson, on the 11th June, 1828, in the State of Delaware, and for wheat sold him in 1828.

The appellee at the April term, 1830, of the Cecil county court, obtained judgment against the appellants for between four and five hundred dollars, upon which he caused execution offi-fa. to issue returnable to October term, 2832, when the sheriff returned, that he had levied on and taken several parcels or lots of ground, in the village of Port Deposit, which remained unsold for want of buyers.