Volume 8 — Gill's Maryland Reports

The original hill in this case will be found set out in full in the case of Doub vs. Barnes, el. a!., 4 Gill, 1, as well as the answers of other defendants. The answer of Thomas, the present appellant, is sufficiently stated in the opinion of this court on the present appeal, delivered by Iris honor, Judge Brick.

The appellant in this case was one of the defendants to the biRuf/o/m Doub, referred to in the preceding case. He purchased from the trustees a portion of the land conveyed to them by Abiaham Barnes, and takes this appeal from the order of the chancellor, of the 9th of December, 1849, requiring him to account. The facts of the case sufficiently appear from the opinion of the court, the preceding case, and the case of Doub vs. Barnes, et. al., 4 Gill, 1.

This was an action of ejectment instituted by the lessors of the plaintiff (the appellants,) against the appellee, in Queen Anne’s county court, at November term, 1847, for the recovery of a tract of land situated in said county, called “ Boothby’s Fortune,” containing about 500 acres, more or less. The defendant took defence on warrant. 1st Exception.

This case originated in a petition filed in said orphans court, on the 22nd of July, 1846, by the appellees, JIandy and others, as legatees and persons interested in the settlement of the personal estate of John McKim, Jr., against the executors on said estate, Marriott (the appellant,) and David J. McKim, now deceased.

A writ of fi.fa. was issued out of said county court on the 24th of April, 1844, upon a judgment recovered in said court by Wm. Conner, as administrator of Wm. Conner, deceased, for the sum of $5,529, and $159.27 costs.

Appeals from the orphans court of Dorchester county. The several appeals in this case were taken from an order of said orphans court, distributing the personal estate of James Pattison, late of said county, deceased, who died in the month of September, 1844, leaving a last will and testament executed on the 9th of November, 1836, upon the construction of which, most of the questions involved in the case arose.

This was an action of assumpsit, instituted by John P. Vanness, John Boyle, and others, the appellees, trustees of the Bank of the Metropolis, against the appellant, upon the pro missory note recited in the opinion of this court. The. declaration contains four counts.

This was an action of debt instituted by the appellee, John Walton, against the appellant, on the 29th of June, 1847, upon a single bill in favor of said Walton, for ¡§539.30, purporting to be signed and sealed by George H. Smith, the appellant. The defendant pleaded non est factum, upon which issue was joined. In the course of the trial, four exceptions were taken by the defendant. The 1st is fully stated in the'opinion of (he court.

This was an action of debt brought by the appellee against the appellant, on the 19th of February, 1845, upon her single bill for $406.46- The plea was non est factum, upon which issue was joined. Upon the first tidal of this case, there was an appeal taken by the defendant, which is reported in 5 Gill, 103. This court, upon that appeal, reversed the judgment of the court below, and awarded a procedendo.

This was an action of assumpsit, instituted by the appellee against the appellant, on the 18th of August, 1845. The pleadings and facts of the case are fully stated in the opinion of this court.

This was an action of ejectment instituted by the appellant for twenty-one tracts of land particularly named in the declaration. The appellee, the defendant, being tenant in possession, took defence on warrant.

This was an action of assumpsit by the appellant against the appellees, who are styled in the declaration, “ The Vestry of the German United Evangelic Lutheran, and Evangelic Reformed Congregations, Saint Paul’s Church, on the west side of Conococheague Creek,” in said county, The defendants appeared, and pleaded non assumpsit, upon which issue was joined.

This was an action of assumpsit brought by the appellee, as executor of Ellen T. Allstan, against the appellant, on the 3rd of July, 1847. The declaration contains counts for goods, wares, &c., sold and delivered, money laid out and expended, money lent and advanced, money had and received, and an account stated. The plea was non assumpsit.

This was an action of assumpsit instituted by the appellant against the appellee. The declaration contains counts for work and labor, goods sold and delivered, money lent, and money had and received, and also a count upon an account stated. Plea, non assumpsit, on which issue was joined.

The appeal in this case was taken by the appellants, from an order of said orphans court of the 5th of April, 1849, directing the administrator of Henry Miller, deceased, a bastard, to pay over to the Board of Commissioners of Public Schools of the City of Baltimore, the balance due the estate of said deceased, under the act of 1845, ch. 120. The facts of the case are fully stated in the opinion of this court.

This was an action of replevin instituted by the appellant, as executor of Ehoiley Smith, deceased, against the appellee, on the 15th of July, 1845, to recover a negro slave named Matthias, the… Held: this did not remove the objection to her competency. The plaintiff excepted. 7th Exception.

The facts of this case will be found in the former appeal reported in 3 Gill, 335.

Appeal frena Washington county court, it appears from affidavits contained iu the record in this case, that two suits were instituted at the same time, against the same defendant, (the present appellant,) upon the same guardian’s bond. One in the name of the State, for the uso of Henry Fiery-, which is reported in 3 Gill, 335, and unte p. 141, the other for the use of Lewis Fiery, (the present case.) Both cases were tried at November term, 1S43, of Washington county court.

Upon the petition of the appellants, a certiorari was issued from said court, directed to the mayor and councilmen of the town of Cumberland, commanding them to return a certain warrant issued by them, directed to the bailiff of said town, and levied upon the property of the petitioners, and all the papers and proceedings relating thereto.

This was an action of assumpsit brought by the appellee against the appellant. The declaration contains the general indebitatus assumpsit, and money counts. Pleas, non assumpsit and limitations, in the two usual forms. 1st Exception. At the trial, the plaintiff offered the testimony of Hugh W. Evahs, taken and read by consent. Witness is the father of the plaintiff, who came of age in February 1841.

The appellees, five in number, together with the appellant and four others, became sureties of John Heth, in the following-bond : “ Whereas, the late Beverly Randolph had agreed with./o/«ji Heth to sell to him five hundred shares of the Black Heath.

The original bill was filed by the appellee, on the 5th of March, 1842, for the sale of certain lands which had been mortgaged to him by one Leíais Howell, and afterwards conveyed by said Howell to the appellant, for payment of a balance due on the mortgage debt.

On the 15th of January, 1841, George R. Wilson executed a deed conveying to the appellant all his real and personal estate, upon certain conditions therein mentioned.

In this case, the plaintiff below, to maintain the issue joined on the plea of ne unques administrator, and for the purpose of proving his title as administrator d. b. n., c. t. a., of Levin Boone, of Prince George's county, deceased, offered in evidence a paper purporting to be the grant of such letters by the orphans court of said county, which was simply signed, “ Test, Philemon Chew, register. ’ ’ To this paper was annexed a copy of the will of said Boone, in which the…

Gross-appeals from Baltimore county court.- This was an attachment sued out by the appellant, upon a certain c-igreement referred to in the opinion of this court. The appellant made oath, before the justice who issued the warrant, “that Samuel M. Tinsley and John A. Keedy, merchants and co-partners trading under the name of $.

Cross-appeals from Baltimore county court. This was an action of assumpsit instituted by the appellant, Keedy, against the appellee, Wilson, trading under the style of G. B. Wilson & Co. The declaration contains the general indebitatus assumpsit counts, the common money counts, and a count upon an account stated. The plea was non assumpsit, upon which issue was joined.

Evan Jones, a citizen of Chester county, in the Slate of Pennsylvania, died in September, 1845, seized of real and personal estate, both in that State and in Maryland, leaving a last will and testament, by which he bequeaths as follows: “First.—I give and bequeath to my son, Benjamin, all my estate, real, personal or mixed, with the following exceptions: All the accounts against John, I give to him, and the improvements I made on the farm belonging to his mother, which I…

The appellant, filed the bill in this case on the 2nd of November 1841, to recover, a proportion of the rents and profits of certain real estate, in which she claimed dower, upon the allegation that her former husband, William J. Chase, died seized thereof. The facts of the case charged in the bill admitted in the answer, and by agreement of parties, ai'e these: William Jacob, the grand-father of said Wm.

This was an action of replevin, instituted by the appellee, for the recovery of a horse which had strayed from the possession of (he plaintiff, and had been taken up by one William. II. Pearce, and was retained by the defendant as Pearce's agent. The plea was non cepit.

This was an action of assumpsitt instituted by the appellees against the appellants, on the 30th of September, 1846, to recover the amount due on the following account, filed with the declaration: Messrs• Dawson and Norwood, in account with Lambert and McKenzie. 1846. June 16—To invoice 775 bbls. flour, pr. Victory. Cash, June 13, - - - $2,941 62 “ 22.—Short charge on invoice of June 16, of 2 cp. bbls., on 409 bbls., . - - 8 18 “ 29.—Invoice 675 bbls. flour, pr. Frank.

This was a proceeding by attachment, on warrant instituted originally by the intestate of the appellee, on the 15th of October, 1840, to recover the sum of $3,177.20, alleged to be due him by Moses J. Moses.

This was an action of ejectment, instituted by the lessee of the appellees, on the 19th of April, 1841, for a lot of land situated on the east side of South street, in the city of Baltimore, particularly described in the declaration. The tenants in possession, the appellants, appeared and pleaded non cul, on which issue was joined.

The bill in this case was originally filed on the 2nd of November, 1846, in Baltimore county court, as a court of equity, by Charles A. Waters, the appellant, and his then wife, Ann Rebecca Waters. Pending the suit, she died without issue, and the cause was removed to the court of chancery. Charles A. Waters was, therefore, the only complainant at the time of hearing, and is the only party appealing from the decree.

The appellant, as administratrix of Notley Young, filed her petition in the said orphans court, stating that George H. Smith, and Eloise, his wife, pretending that they were entitled to administer on the personal estate of said Young, filed a petition in said cOu'ít, praying that letters of administration might be granted to them; in consequence of which, and for the benefit of said estate, your petitioner was compelled to employ counsel, for the purpose of answering said…

The facts of the case are fully stated in the opinion of the chancellor, and of this court. On the 22nd of July, 1847, the chancellor (Johnson,) passed a decree dismissing the bill, accompanied by the following opinion: “ On the 11th of April, 183,3, Micajah Merryman leased to John J. Gross and John Gross, a lot of ground in the city of Baltimore, for ninety-nine years, with a clause for renewal, reserving an annual rent of $75.

- The record in this case states, that on the 22nd of October, 1849, Baltimore city court caused to be transmitted to Anne Arundel county court, for trial therein, a transcript of their proceedings in the case of the State of Maryland against John Price, lately depending in. said city court, which said transcript is in the words, &c. This transcript sets oüt a presentment by the grand jury of the city of Baltimore, against said Price, for the murder of George Washington…

The appellee filed his petition for freedom on the 3rd of September, 1849.

<p>A negro slave was manumitted, by deed, on the 1st of January, 1840, but was held in servitude, by his master, until the 12th of May, 1846. Held.' that he could not maintain an action against his master, to recover the value of his services for the time he was so held to service.</p> <p>The case of Queen vs. Ashton, 3 H. Q McH., 439, explained and approved.</p> <p>In this State, where we have a separate chancery jurisdiction, the question of fraud, as a means of preventing the effect and operation of the statute of limitations, must be referred to chancery, and cannot be relied on, by way of replication to the plea of the statute, in a court of law,</p>

This was an action of ejectment instituted by the lessor of the appellee against the appellant, on the 29th of March, 184S, for a tract of land described, in the declaration and patent, as At the trial, the plaintiff, on his part, offered in evidence a patent to James Reynolds, his lessor, dated 26th of December, 1836, for the tract of land described as above, and proved that the tract named in the patent, was the land for the recovery of which this suit was brought, and…

The bill in this case was filed on the 20(h of May, 1846, by the appellant, against the appellees, for a specific execution of a parol agreement for the purchase of a parcel of land, with the improvements thereon, consisting in part of a factory called Guilford factory, which, the bill alleges, the appellees agreed verbally to purchase of the complainant, some time in the spring of 1845, for the sum of $20,000, of which $5,000 was to be paid on delivery of possession, and,…

The original bill in this cause was filed on the equity side of Harford county court, on the 21st of May, 1840, by the appellee against the appellants, Hays and Hollis, praying, upon the grounds therein stated, that one of them (Hays,) might be declared to hold certain property which had been conveyed to him by the complainant and her husband, Amos Hollis, the other defendant, in trust for her separate use, or that a new trustee should be appointed for that purpose, to whom…

Gross-appeals from Baltimore county court. This was an action of libel and slander, instituted by Winter against Donovan, on the 20th of May, 1836. The declaration contains three counts.

<p>The complainant filed a bill claiming the benefit of a trust or charge in his favor, contained in tho will of his father. Tho defendants, the other devisees, demurred to this bill, on the ground that the clause in the will relied on, was too vague and uncertain in its terms, to create such a trust or charge. The chancellor sustained the demurrer, but this court, on appeal, reversed the decree dismissing the bill, and passed a decree remanding tho cause, that the court of chancery might refer it to the auditor, with instruction to state an account of the allowance to he made to complainant, under certain directions expressed in the decree of this court. This decree was silent as to the right of the defendants to answer. Held : that tho defendants wore not precluded, by this decree, from answering the original bill, and taking full defence upon the merits.</p> <p>It was not competent to this court to allow the defendants to withdraw their demurrer and answer over, though provision for doing so in the court below, might have been made in their decree.</p> <p>Upon a second appeal in the same case, this court may look into and decide questions involved in the record previously brought up, not decided upon the former appeal.</p> <p>The reference in the decree, to the “ condition and habits of life of complain, ant and his father,” was intended to allude to the extent of the estate, and their mode of living, as to expensiveness, economy, &c., and not to denote the complainant’s condition relative to his wife and children ; it was, therefore, error to average estimates of the sum necessary to support complain, ant, as the head of a family, with estimates of what was necessary for his individual support.</p> <p>This court, by saying that the entire real estate was chargeable with complainant’s claim, did not design to confine the chancellor to any particular mode of securing the complainant the benefit of this lien. There is manifest advantage of adjusting the rights of all parlies, and arranging the accounts accordingly»</p> <p>The widow of ono of the defendants can only be chargeable in respect of her dower, and her child only as heir to the father.</p> <p>A portion of the estate which descended to the complainant, like every other part of the real estate, is to be charged with its proportionate share of the allowance to be made to him ? the proper mode of making this charge, is by crediting tills share against his claim.</p> <p>Interest is properly chargeable at the expiration of a year, if any balance of the allowance then remains due.</p>

The bill in this case was filed in 1845, by the appellees, to recover of the appellants a pecuniary legacy bequeathed, in 1818, by Samuel Bond to Mary C. B. Compton, and which came to the hands of John Barnes, the executor of Samuel Bond, and the testator of the appellants.

Benjamin Fergusson died in 1828, leaving a last will and testament, by which lie devised and bequeathed all his property to James… Held: in trust, by the said James Campbell, and Edmund Lynch, and Samuel McDonald, for the sole and separate use of my two daughters, Mary Owen, arid Ann Gray, during their natural lives, free from all control of their husbands, and, at the death of either of them, her moiety for the use of her children, equally, and their heirs, forever.”…

Appeals from Montgomery county court. The first of these cases, No. 18, was an action of covenant, originally instituted by Solomon Holland, against the appellants, on the agreement belo w. Solomon dying before the pleadings were completed, the appellee, Nathan Holland, as his administrator, appeared to the suit, which was continued in his name, for the use of Reuben Summers. “ We have rented, for one year, commencing on the 16th day of the present month, and to end on the…

This was an action of slander brought by the appellee against the appellant, on the 24th of August, 1846.

The bill in this case was originally filed in the equity side of Baltimore county court, on the 14th of January, 1848, by the appellant, against the appellee, Margaret, and her then hus.band, Thomas Chester„ It alleges, that said Thomas being indebted to complainant .upon his promissory note for f>355', dated 27th of July, 1840, payable in two years, with interest from date, to secure the same, executed a mortgage to complainant of certain lands lying in Baltimore county.

This was an action of trover, brought by (he appellee, on the 23rd March, 1846, against the appellant. The plaintiff recovered judgment in Baltimore county court. He claimed title under a deed executed to him on the 29th January, 1846, by George Suter, in consideration of $10, to various parcels of real, and articles of personal property. This deed was in trust, that Stewart— 1st. Would sell and dispose of the property conveyed to him. 2nd.