Volume 7 — Harris & Johnson's Maryland Reports

Ejectment forpart of a tract ot land called Temple Comb. The declaration contained two counts; the first on demises by Teackle Taylor, Alexander Taylor, Nancy Taylor, James Buby, and Peggy his wife, and James Taylor, and the second on a demise by Teackle Taylor. Defence was taken on warrant, and plots were returned. Non cul and issue joined.

This was a writ of attachment on judgment, issued out of Harford county court on the 16th of December 1822, and directed to the sheriff of that county, reciting the recovery of a judgment in Baltimore county court on the fourth Monday in March 1820, by Samuel Harden and Nehemiah Carson, (the now appellants,) against George G. Presbury 3d, for $300 current money damages, and $7 27$ costs; that on the 10th of May 1822 a writ of fieri facias, directed to the sheriff of Harford…

This was an action of debt, brought the 3d of March 1819, on a single bill, dated the 19th of January 1799, executed by the defendant, (now appellee,) in favour of Hannah Ruff, (since deceased,) for J66 10 8, and payable on demand. The question in the case grew out of the pleadings, and they are sufficiently stated by the judge who delivered the opinion of this court. The county court rendered judgment for the defendant, and the plaintiff appealed to this court.

Afpeal from Baltimore County Court. This was an action of trover, brought on the 12th of March 1822 by James Smith, administrator tie bonis non, with the will annexed, of William W. Haslett, (now appellant,) against the appellee, (the defendant below.) Not guilty, and actio non accrevit infra tres annos, were pleaded. Issue was joined to the first plea, and the general replication and issue to the second.

Long, and Susan his wife, surviving executrix of Thomas Curtis, (the appellants,) on a promissory note for $1360, dated the 21st of March 1817, drawn by James Anderson, payable six months after date to George S. Wilson, or order, and by him endorsed to Henry H. Curtis and Susan Curtis, executors of Thomas Curtis, or order, and by Henry H Curtis, one of the executors, endorsed to the Bank of Somerset.

Appear from Queen-Anne’s county court. Action oi assumpsit, brought on the 17th of June 1824, by the appellee against Lambert W. Spencer, (who was not arrested on the writ which issued in the cause,) and the appellant.

• Appeal from Kent County Court. Debt upon the guardian bond of William Bowers, dated the 10th of May 1806, brought against the administratrix, (the appellant,) of one of the sureties in the bond.

Jlssumpsit for money had and received, brought by the appellees against the appellant. The cause, which is fully stated by the judge who delivered the opinion of this court, was argued before Buchanan, Ch. J. and Martin, Stephen, Archer, and Dorset, J.

This case, which is fully stated by the judge who delivered the opinion of this court, was argued before Buchanan, Ch. J. and Earle, Martin, Stephen, Archer, and Dorsey, J. by

Debt upon the testamentary bond, executed on the 37th of November 1800, by Ann Townsend, as the executrix of Levin Townsend, with Thomas R. Handy, (the defendant and now appellant,) and James Atkinson, her sureties. The defendant pleaded gene-, ral performance.

Affeal from the' equity side of Cecil County Court from a decree passed in favour of the complainants in that court, now appellees. The facts of the case sufficiently appear in the opinion delivered by this court.

Fieri eacias issued on a decree rendered in this court at June term 1823, returnable at December term 1823. The fieri facias was laid on certain tracts of land, and goods and chattels; and the goods and chattels were replevied and taken out of the possession of the sheriff, under a writ of replevin issued out of Baltimore county court, at the instance of Jacob Iiol» derman, directed to some one oí the coroners of the county.

<p>If evidence is given in the court below, by consent of parties, Its legality cannot be questioned in the appellate court.</p> <p>In an ejectment where the defendant’s title to the land sued for, and his only defence was under the supposed will of a former owner, and it appeared that there had been a former ejectment against the defendant, in which the same question was in issue, and in which said supposed will was adjudged to be invalid, and the case on that ground decided against him — Held, that he was not thereby concluded from going into evidence to establish the legality of the will.</p> <p>Where it appeared that the will, under which the defendant claimed title, was signed by the testator, in the presence of the witnesses, but that they, at his request, took it into an adjoining room to attest it, between which and the testator’s room there was a plank partition, and after attesting it, it was carried to the testator, and he informed of the attestation, and approved of it — Held, that prima facie, the will was not legally executed.</p> <p>It is not essential that a testator should actually see the witnesses to his Will sign it, but it is essential that he should be in a situation, whence he could do so, if he desired it.</p>

<p>Trespass Q. O. F. for breaking the plaintiff’s close, and erecting thereon a wall, by which the plaintiff was prevented from using the water in her Well. The facts were, that the well did not belong to the plaintiff, but to the defendant, and was on the land of the latter, but that the plaintiff' Sad a right to use-the water in il. — I&Id, that the action could not be sustained, but that the plaintiff’s remedy for being deprived the use of the water was an action on the case.</p> <p>In an action of trespass, the circumstances which accompany and give character to the trespass, may be given in evidence to increase the damages.</p> <p>And in an action of trespass to the person ofthe plaintiff, other trespasses to his person, or to that of his wife, children or servants, if committed at the time of the principal trespass, (being laid in the declaration,) may for like purpose be given in evidence; as may also the defendant’s conduct and language at the same time as proving his malice. But in no case can damages be recovered in one action for an independent substantive injury for which another form of action is prescribed.</p> <p>The declaration alleging the well to be the plaintiff’s, and the evidence shewing it to be the defendant’s, the variance was held to be fatal.</p>

This was an action of assumpsit, founded on an award of arbitrators selected by the parties. The defendant below, (now appellant) pleaded non assumpsit, and issue was joined. 1.

Debt on an award made by arbitrators appointed in pursuance of an order of the orphans court. To the declaration, (which is set out by the judge who delivered the opinion of this court,) there was a general demurrer, which the county court sustained; and the’ plaintiff, (now appellant,) appealed to this court.

Debt by the appellant against the appellee, (the defendant in that court,) brought upon the following bond, viz. “Know all men by these presents, that we William Merryman, John Merryman, of Benjamin, and Nicholas Merryman, all of Baltimore county, in the state ef Maryland, are held and firxaly bound unto the said state of Maryland, in the full and just sum of fifty-one thousand four hundred and forty-one pounds two shillings and sixpence, current money of the state of…

Appear from Baltimore County Court. Assumpsit brought on the 9th of March 1820, by the Appellees, the plaintiffs in the court below, against the Appellant’s intestate. The declaration contained two counts — one on a promissory note drawn on the 23d of June 1819, by Clopper, in favour of Isaac Phillips fy Co. for $3,000, payable sixty days after the date, and endorsed by Phillips fy Co. to the plaintiffs. The other for money lent and advanced.

Assumpsit by the appellee against the appellants, brought in Baltimore county court, and removed to Harford county court. The declaration contained four counts — for money laid out, expended and paid — had and received — lent and advanced — and on an insitnul computassent. Plea, non assumpsit, and issue. 1.

Replevin. The case is fully stated in the opinion delivered 'by this court. It was argued at last June term, before Buchanan, Ch. J. and Earle, Stephen, Archer, and Dorset, J.

This was an action of assumpsit for goods sold and delivered by the plaintiffs, (now appellants,) as co-partners, to the defendant, (the appellee.) The declaration contained two counts — Indebitatus assumpsit, and quantum meruit.

AppEALjfrom Baltimore County Court, Jtssumpsit, brought by the appellees against the appellant. The facts of the case, as set forth in the bills of exceptions taken at the trial by the defendant below, are sufficiently stated by the Judge who delivered the opinion of this Court.

Ejectment for a tract of land called Orange. Defence was taken on warrant, and plots were returned, by which it appeared that the defendant took defence for Carter’s Delight. Plea, non cul. and issue.

Trover for three-slaves named Julian, Alexander and Commodore, Plea, non cul, and issue. 1.

Assumpsit for work and labour, &c. for money had and received, and an insimul computassent. The defendant, (now appellee,) pleaded-.non assumpsit, and issue was joined. The facts oí the case are stated by the Judge who delivered the opinion of this Court.

The complainants in the court below, (now appellees,) filed their bill on the 28th oí June 1821, against Samuel, Thomas, Richard M. and Jeremiah T Chase, and The Farmers’ Bank of Maryland, The City Bank of Baltimore, and T. Lytle. As the facts in the case are sufficiently stated in fhe decree of the Chancellor, before whom the. cause was fully argued, it is unnecessary to state them here.

<p>A scire facias was issued against R, as special bail of C &. F, reciting, in the usual way, the recognizance of bail, and the judgment against C & F, &c. U appeared to the writ, and moved to quash it, upon the ground, supported by affidavit, that she had only intended to become bail for F, and that the clerk of the court had by mistake entered her as bail for both C & F — Held, that as the writ recited the recognizance of bail, the proceedings to judgment against the principal, &c. properly, as they appeared by the record, it could not be quashed for insufficiency.</p> <p>The court below having quashed the writ, the judgment was reversed, and on motion, a procedendo awarded.</p> <p>If the bail was relievable on motion, ought it not to have been made for rectifying the original entry, in which the alleged mistake in taking the bail occurred? Quere.</p>

Ejectment for a tract of land called Convenience. The defendant, (now appellee,) took defence on warrant, and plots were made. Issue joined on the plea of not guilty. At the trial the plain till gave in evidence the plots and explanations, made on his part, to show bis claim and pretensions, and the patent for the tract of land nailed Paris, granted to John Waters, (son of John,) on the 4th of May 1752, for 100 acres.

FLssumpsit. 1, For work and labour, and materials found. 2. Quantum meruit for work and labour, and for materials found, &c. 3. For money laid out and expended, lent and advanced. And 4. An insimul compulassent, &c. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined.

Ejectment for a tract of land called Palmers Forest. Plea, not guilty, and issue.

This was an action of assumpsit brought by the present appellant, (the plaintiff below,) against the defendant, (the appellee,) as… Held: used, occupied and enjoyed, for a long space of time, to wit, for one whole year; by reason whereof the defendant became liable to pay to the plaintiff the said sum of $250; and being so indebted, in consideration thereof afterwards, to wit, on, &c. at, &c. undertook and faithfully promised to pay the plaintiff the said sum of $250,…

<p>A deed of gift of personal property from a father, (who was not indebted at the time,) to his child, executed, acknowledged and recorded, according to law, conveying the property to the child, with a provision that the donor was to remain in its possession and use during life — Held, to be valid both at common law and under the statute of 13 JCliz.</p> <p>Such a deed is not within the statute of 27th Bliz. that statute not relating to conveyances of personal, hut of real property.</p> <p>H, being entitled by deed, at her father’s death, to certain slaves, the father sold them as slaves for life to II, who took possession, and used them as his own — Held, in an action of trover, brought at the father’s death by II, against I?, for the slaves, that there must be other evidence of a conversion of the slaves by B, to entitle H to recover.</p> <p>After the date of the said deed H, who was then a single woman, married, The donor, her father, died during her coverture, and afterwards her husband died, without doing any thing to recover the possession of the slaves — Held, that the right to them survived to the wife.</p> <p>The issue of slaves born during the existence of a tenancy for life, belong to the tenant for life, per Archer, J.</p>

This was an action of debt; and the declaration stated that the defendant, (the present appellee,) on the 12th of August 1819, by his certain bill obligatory, acknowledged himself indebted to the plaintiff, (the appellant,) and promised to pay him the sum of £60 5 3§.

Jlssumpsit on a promissory note for $>1000, drawn by the defendant below,, (now appellant,) on the 5th of January 1820, in favour of Con - rad Schultz, or order, payable two years after date, and by. Schultz endorsed to the plaintiffs, (the appellees.) The wiit issued on the 15th of February 1822, returnable on the fourth Monday in March following.

. This was an action of covenant, brought by the insured, (the appellants,) against the insurers, (the appellees,) upon a policy of insurance, on the schooner Two Brothers, at and from Baltimore to St. Bartholomews, &c. for a total loss by the perils of the sea.' The defendants pleaded non infregit conventionem, and issue was joined.

The bill filed by the appellees’ testator against the appellants, on the 4th of June 1816, stated that he was employed by Frederick Price, and Penelope D. Price his wife, (one of the defendants,) sometime in the year 1811, to perform certain carpenter’s work in and upon a dwelling-house which the said Fredericle was then erecting upon a tract of land, which he then held in right of his wife Penelope, and to which she was entitled in fee simple.

The bill, filed on the 7th of November 1816, in the name of Dorothy Kemp, executrix of Frederick Kemp, against Jacob Staley, John AFP her son and Gilbert Kemp, (the appellees,) stated that Joseph Staley, deceased, in his lifetime, being seized in fee of certain tracts of land lying in Frederick county, called Foxe’s Spy and The Resurvey on Low Jlemper, by his will dated the 4th of February 1808, devised, among other things, as follows: ciI give and devise unto my son Jacob…

<p>.K was appointed a collector of tuxes under the act of 1-Z94, ch. S3, and gave bond, with security is such, and proceeded to collect. In an action of debt on the bond against I,, one of the sureties, to recover such collections — Held, that it was not competent for I, to defend himself upon the ground that K had not taken "the oath prescribed by law. That as K was .regularly appointed collector, and bonded and acted as such, he was to he presumed to have complied with all other necessary qualifications; that in an action against him he could not defend himself upon the ground of his own neglect, and that his securities, in relation to such a defence, were in point of law, in the same situation.</p> <p>In an action of debt on a bond with a collateral condition, breaches must be assigned; but where there was an .agreement that the defendant should plead nil debei, and that he should, on the issues on that pier, give in evidence all matters which he could give under any power of pleading which could he legally used — Held, that although it was á loose mode of proceeding it would be sanctioned,.and that Us true meaning was to waive •oo-both sides all errors in the pleadings, and to dispense with the necessity of the plaintiff’s assigning breaches.</p>

The facts of this case are sufficiently stated in the final decree of the chancellor. The bill, which was filed by the appellant, (and (S'. Chapman his surety, who is since dead,) against the appellee, on the 20th of December 1819, prayed an injunction to stay proceedings on judgments at law obtained by the appellee against the appellant, and his surety.

<p>A landlord .may distrain the goods of his tenant, fraudulently and clandestinely removed off the demised pvemises to avoid his rent, under the slat. 11 Geo. II, eh. 19, within thirty days from the time of removal, although the lease, upon which the rent was due, may then be determined, and the tenant may not be in possession of the premises.</p> <p>An avowry, in a case of that kind, which only avers that the goods were fraudulently and clandestinely removed by the tenant, without also avering that they were so removed with a view to avoid the rent, is rendered good, if issue be taken on the fact /hat they were so removed with that intention; although it might, perhaps, be bad on demurrer.</p> <p>In replevin where the defendant avows the taking for rent, the same jury who try the cause, may assess and value the goods distrained, without the avowant’s praying that they should do so.</p> <p>To supportan avowry for vent, it is not necessary that it should be averred, that the avowant’s interest in the demised premises continued at the time of the distress.</p>

Arpear from Baltimore County Court. Action of trespass?. The writ was that the defendant, (now appellee,) answer unto the plaintiff, (the appellant,) “in a plea of trespass, &c.” And by the declaration the plaintiff complained, that the defendant on tlie 10th of June 1820, at, &c. with force and arms, seized, took and detained, the goods and chattels to wit, &e. of the plaintiff, then and there found, and being of a large value, to wit, of the value of, &c. and carried away…

Comity Court. This was an action of assumpsit, brought by the appellees against the appellant and W. Eiehelberger, (who was returned non est,) for work and labour, goods, wares and merchandise, for money lent and advanced, and paid, laid out and expended', and on an insimul computassent. The general issue was pleaded. The plaintiffs at ■ the trial offered to read in evidence the two following checks, drawn by the defendants — “No. 613. Baltimore, March 26th 1819. .

<p>Appeal from a decree of the Orphans Court of Charles county, refusing to admit to probat and record a paper offered as the last will and testament of Ignatius Semmes, deceased.</p>

Assumpsit. The defendant, (the now appellant,) pleaded the general issue. At the-trial the plaintiff, (the appellee,) offered in evidence, by Alfred Warfield, the plaintiff’s brother and clerk, that in the year 1817, the plaintiff was applied to by Joseph Berrett to furnish him with necessaries for his family, on credit; that the plaintiff, having doubts of Berreifs solvency, declined to do so, and refused to let him have the goods he applied for.

.money paid, laid out and expended; money lent and advanced, and on an insimul computassent. The defendants, (the appellees,) pleaded non assumpsit, and issue was joined.

Jlssumpsit on a jjromissory note, brought by the endorsee against, the maker. The declaration contained a count on the note, and the usual money counts. The general issue was pleaded. 1. At the trial the plaintiff, (the appellant,) gave in evidence the following promissory note: ilBaltimore, 11th Feb. 1819. $661 50. Six months after date, I promise to pay to the order of Bichnell fy Boies, six hundred and sixty-one Ts0^ dollars, for value received.

Cross Appeals from Baltimore County Court. This was an action of assumpsit for money paid, laid out and expended; for money had and received, and for money lent and advanced. The defendant (Douglass,) pleaded non assumpsit, and issue was joined. 1.

<p>A rule of an inferior court authorising a principal to be surrendered in discharge of his bail upon a scire facias being returned scire feci, at any lime during the first five days of the term to which the retufn is made, is a legitimate rule, and is, in giving time to surrender the principal, la mere matter of favour or indulgence to the bail.</p> <p>Where the offer to surrender is, in such a case, on the sixth day after the return, it is too late, and the refusal of the court to extend the time to that period, is not a ground of error; and is but an interlocutory proceeding, upon which an appeal will not lie.</p> <p>Courts will sometimes enlarge or suspend their rules when the ends of justice requre it.</p>

This tvas an action of assumpsit. The declaration contained two counts. 1.

Action of replevin. Property in the defendant pleaded. General replication, and issue joined.

The bill in this case was filed by the appellee for an injunction to prevent the appellant from obstructing a certain alley, and debarring him from the use of it.