Volume 8 — Gill & Johnson's Maryland Reports

This was an action of Ejectment for a tract of land called “ Dashiell’s Lot,” lying in Somerset county, containing seventeen hundred and forty acres, and a tract called “ Stevens’ Folly,” brought on the 26th August, 1833, by James Stewart, as lessor of the plaintiff against Robert Jones, of George, the tenant in possession. The 1st count was for an entirety, the 2nd for an undivided moiety, and each was upon a demise from the 31st December, 1832.

The appellee petitioned for her freedom on the 1st of June, 1833, and after an appearance, and denial of her right by the appellant, the case was submitted to the court below, upon the following statement of facts : “ It is admitted that Gideon Longfellow, of Kent county, was heretofore the legal owner of a female slave named Lucy, and on the second day of December, 1803, executed in due form of law, the following deed of manumission, which was duly recorded in Kent county…

On the 26lh of August, 1833, the appellants filed their bill in the court of Chancery, against Jeremiah L. Boyd, Charles Ridgely, and others, alleging, that in the year, 1830, the defendant, Boyd, purchased of the defendant, Ridgely, certain real estate in the city of Annapolis, and paid for the same? but without obtaining the legal title.

The appellants on the 15th of April, 1834, filed their bill in the court of Chancery, for the foreclosure and sale of certain personal property, which had been mortgaged to them by William D. Merriken, the father of the appellee and others, who were made defendants.

The appellant in December, 1832, filed her bill in the court of Chancery, to recover from the appellee, the alienee of her husband, (who died in 1817,) a portion of the rents and profits of a lot in the City of Baltimore, of which she alleged her late husband had been seized during the cover-ture.

This-was an application by the appellant, for a writ of habere facias possessionem, under the act of 1825, eh. 103. Held: that an equity of redemption is not liable to an execution under that statute, because only a partial equitable interest is in the mortgagor, the mortgage debt being a lien thereon.

This was an action of assumpsit, commenced by the appellant against the appellee, on the 12th of November, 1834, to recover the instalments on certain shares subscribed by the appellee, to the capital stock of the company. Issue was joined upon the plea of non assumpsit.

On the 16th December, 1835, Peter Gold filed his petition charging that Clement Oakes, a mariner, belonging to the port of Baltimore, shipped as a seaman on board the ship Warren, which sailed out of the aforesaid port fin the year 1806, on a voyage to the Pacific Ocean, where the vessel arrived, but was seized by the Spanish authorities, and the crew made prisoners; that wages for said voyage have been recovered for, but not received by said Oakes; that he is dead,…

Charles W. Ridgely, by bis will executed ou the 13th day of September, 1810, devised a tract of land to each of his sons, encumbered with the payment of a legacy to his daughter Ruth, who afterwards intermarried with John Baltzell. William A. Ridgely, one of the appellees, sold the tract devised to him charged as aforesaid to Edward Rider, by deed, dated November 30, 1820, with a general warranty.

On the 24th December, 1834, John Schroeder filed his bill in Chancery, charging, that at December session, 1826, The General Assembly of Maryland, passed an act incorporating certain persons, and all other persons becoming members of The Maryland Savings Institution, a body politic; granting them among other powers, that to regulate the manner of making and receiving deposites, the forms of certificates to be issued to depositors, and the transfers thereof — to provide for…

<p>By the act of 1798, ch. 101, siib. ch. 14, sec. 4, a person appointed guardian to a minor by the Orphans’ court, is not qualified to act as such, until he has bonded, and such qualification can only bo established by the adduction of the bond, or office copy thereof, unless it has been lost and the record destroyed, when proof of an inferior character might perhaps be admissible.</p> <p>The bond itself, or an office copy is the best evidence, and must be shown to be lost or destroyed before inferior proof can be resorted to.</p> <p>Where by the pleadings the issue was, whether the guardian had collected and received certain moneys claimed for his ward, evidence proposed to be offered by the defendant to establish the fact that the guardian had discharged himself, by the payment of the amount proved to be in his hands to a successor legally qualified to act, was held to be foreign to the issue, and therefore inadmissible.</p> <p>Evidence of a variety of facts and circumstances offered by the plaintiff, to repel the proof which the defendant proposed to adduce, was also held to be inadmissible as foreign to the issue, and the county court erred in admit-ing it; but as such proof could not have influenced the minds of the jury in finding upon the issue submitted to them, this court would not for such error reverse the judgment, the plaintiff in whose favour the verdict was rendered having offered uncontroverted evidence in support of the issue on his part.</p>

This was an action of debt instituted by the -appellant on the 5th of March, 1832, against one Jesse C. Coolc, who died whilst the suit was depending-, and the appellees his sureties in his bond as sheriff of Charles county, dated on the 8th of December, 1829, in the penalty of £10,000, and with the usual condition.

<p>In an action of assumpsit on an open account, the plaintiff to remove the bar of the statute of limitations, proved that within three years of the com» mencement of the suit, the defendant said to the witness, it was his impression the money had been paid by his, defendant’s father. That if his lather had paid it, he could find, he supposed, the receipt on searching his lather’s papers; and if he could not find the receipt, he would settle it; and promised to make a search and inform the witness. Held, that the evidence was sufficient to remove the bar.</p>

On 1st June 1833, Henry Boyer filed his bill against JYancy Calwell and others, charging that one Samuel Calwell, late of said county, departed this life about the year 1800, intestate and seized in fee of a tract of land called the Grove; that he left the following children, viz: &c. his heirs at law; that James, son of the said Samuel, resides in the State of Virginia; that Ann, one of the daughters of Samuel, intermarried with Thomas Boyer, and is since dead, leaving the…

That he died possessed thereof, and all the rights and privileges attached thereto; that among other valuable rights and privileges of his father, in and to said stands,… Held: used and rented them out for a long time, &c. that complainant is now of full age and defendant has refused to account with him. Prayer for an account and general relief, &c. ’ An order of publication was also prayed and granted, and publication made against the administratrix as an absent defendant.

This was a petition for freedom, filed on the 12th' October, 1836, by the appellee, against the appellant.- The freedom being denied, at the trial of that issue, the following excep- , tion was taken.. • The petitioner offered in evidence, that she had been living and acting in the City of Baltimore, as a free woman, from the 27th July, 1830, until she was arrested as a slave by the defendant on the 11th October, 1836, and confined in Baltimore county jail as a runaway by…

<p>In an action of debt by the appellant against the appellee, on a policy of insurance issued by the latter, guaranteeing to the bearer on a day named, the sum of $5,000 on presenting the same at the office of the company; it was held on special demurrer to the declaration, in which the plaintiff averred that he was the bearer of the policy, and that the same was presented on the day named, but was not paid, that the action might be maintained.</p> <p>That such an instrument was as much the representative of money as exchequer bills, bank notes, bills of exchange, or promissory notes, payable to bearer, or endorsed in blank, and as such passed by delivery. That possession was prima facie evidence of title, and when sued on by the holder, it need not be averred, that the defendant made the policy with the plaintiff; or with whom it was made, or by whom the securities were deposited, and premium paid; or that the plaintiff was the bearer at the time it was made, or when he became 3uch bearer; or that he was the bearer thereof on the day it fell due, and presented it for payment at the office of the defendant.</p>

On the 27th April, 1831, the appellants filed their bill, charging that, on the 9th October, 1824, the said Barnard, being indebted to each of the appellants, and to a certain John Brandt in divers sums, to secure the same, and to enable Barnard (then insolvent, or greatly embarrassed) to comply with a contract between him and John Strider, for walnut musket stocks, agreed in writing with the said Brandt and these appellants, to transfer into the hands of the appellants, all…

<p>In an action of covenant upon a policy of insurance, in which the words “ with liberty,” of a port were used; it was held, that'those words, confer a power" subordinate to the general course of the voyage.</p> <p>They do not necessarily import an intention'to trade at the port mentioned; nor do they amount to an assurance, or intimation to the underwriter, that the assured looked to the port of privilege under any circumstances in the contemplation of the parties, as that, at which the voyage was designed to terminate.</p> <p>Mere awakening circumstances, inciting the underwriter to inquiry, are not sufficient to relieve the assured from the necessity of making known to the former, the fact, that the cargo for insurance consisted of live stock. A • knowledge of- this fact, previous to the insurance, must be shewn in the underwriter, or an imputed knowledge, by proving, that on the voyage insured, live stock is the only article of commerce; and such imputed ■ knowledge does not result from the introduction into the policy of the Words, “ with liberty,” of the port, to which such exclusive trade is shewn. When, insurance is demanded on live stock, it is the duty of the assured to notify the assurers of the nature of the cargo, and his failure to do so, Vitiates the policy.</p>

This was an action of replevin, commenced on the 13th November, 1833, by the appellant against the appellee, for a negro woman named Phillis, and her child, Lucinda. Issues were joined upon the pleas of non cepit, and property in Fulton, the defendant.

<p>Where a party had offered evidence, without objection of the consideration, amount, dates, and times of payment of two promissory notes, (not before the court) and then proposed to prove, that they had been surrendered to the drawer, the one upon being paid, and the other upon being substituted by two other notes given in lieu of it; upon objection to the proposed proof of the surrender, because, they were not produced, and no notice had been given to produce them; held that the proof was admissible. Held also, notwithstanding a similar objection, that evidence of the substitution of the two last notes, for the one surrendered was likewise admissible.</p> <p>To render the evidence of the surrender admissible as a general rule, the notes surrendered must have been produced, but where their contents are proved by consent, the identity of the notes given, and those surrendered, is as certainly established, as if they were present in court.</p> <p>The admissibility of the proof of the substitution rests upon the same principle, that is, that evidence of the contents of the substituted notes, had been given without objection.</p>

On the 16th December, 1834, Francis Marshall filed his bill on the equity side of Baltimore county-court, praying for an injunction to stay the corporation of the city of Baltimore, its commissioners and officers, from proceeding to execute the act, for opening and increasing the width of German lane, in the city of Baltimore, which in the mode of its proposed execution encroached upon his freehold and improvements on German street.

On the 23d August, 1836, James P. Walter filed his petition in the above court, charging that during his minority, the appellant as his guardian, had received his property and settled several accounts with said court, that since the petitioner had come of age, he had demanded the balance due him, and he had not been paid. Prayer for an account and relief.

The bill was filed in this cause on the 15th December, 1835, by William.

This was a special action of trespass on the case commenced by the appellee against the appellants, on the 31st December, 1831, in which he declared, for, that whereas, heretofore, to wit: on, &e. at the city and port of Baltimore, to wit: at, &c. the said plaintiff safely and securely loaded in, and upon a certain schooner or vessel called the Hunter, certain goods, chattels, wares, and merchandise, of great price and value, to wit: of the price and value of five thousand…

346 and 380. The bill in this cause was filed on the 14th November, 1836, by the appellees, and charged that in the month of May, 1832, a certain co-partnership was formed by William M. Ellicott and Samuel Poultney, to carry on the business of banking and dealing in money, bullion, exchange, bills, notes, and other evidences of debt, in the cily of Baltimore, under the style of Poultney, Ellicott & Co. That certain persons, to wit: The Avalon Company, Thomas Ellicott, Samuel…

On the 28th January, 1833, William Marshall commenced an action of assumpsit against Thomas T. McPherson, and declared for $500, and 10,0001bs of tobacco, due for the use and occupation of a certain plantation of the plaintiff, &c.; for sundry matters properly chargeable in accounts; for money and tobacco had and received' by the defendant for the plaintiff’s use, and also upon an insimul compatasset, in which the defendant became indebted for money and tobacco.

On the 22d November, 1836, Francis M. Fowler, Samuel Poultney, David U. Brown, and Ann Poultney, administra-trix of Thomas Poultney, filed their bill in chancery, charging that in the year 1832, Samuel Poultney and William M. Ellicott entered into a co-partnership in the city of Baltimore, as bankers, under the style of Poultney, Ellicott & Co. engaged in business and contracted debts still due.

<p>Any informality in the proceedings of a sheriff upon an execution, are examinable on motion, upon its return.</p> <p>A judicial sale, made by a sheriff; for the purpose of carrying into effect the judgment of a competent tribunal, is a proceeding which the law regards with favour, and although it will not give effect to an instrument or paper, executed by such officer, if its terms are unmeaning, or so entirely vague as to make it uncertain what was intended; yet every reasonable intend- . ment will he made to secure bona fide purchasers, and to effectuate the object, which it was the duty, and as the law presumes, the design of the officer to accomplish.</p> <p>The presumption in such a case is, at least, as proper and strong as in the case of a grantee claiming against a grantor, when the utmost effect is given to the terms of the grant, ut res magis valeat quam pereat.</p> <p>In an action of ejectment by a party claiming under a sheriff’s sale, the following description, in the schedule of the property sold, was held to be sufficient:</p> <p>“To one, of land, called and known by the name of ‘Indian Creek, with Addition,’ containing 217 acres, more or less.”</p>

This was an appeal from Prince ■ George’s county court, and originated in an action of debt, brought on the 19th April, 1832, in the name of the State, against Edwin M. Dorsey, Alexander H. Boteler, and Edward W. Belt.

This was an action of replevin for a black horse called “Figure,” commenced on the 10th January, 1834, by the appellants against the appellee. Issues were joined on the pleas of nop cepit — property in the defendant, and not in the plaintiffs.

This was an action of trover brought by Jesse Pocock, against Joshua Hendricks on the 10th May, 1832, The defendant pleaded not guilty,… Held: no other claim upon said coloured woman and her children, than the services of said Dick, as long as she the said Mary lived — that she recollects, that after Sarah Galloway was married to Joshua Hendricks, said coloured woman Cass, remained with Mary Hare, and had two more children, Rachael and Luce. — Witness thinks the reason why…

This was an action of trover for the value of a negro girl, brought on the 31st of March, 1829, by the appellant, against. Francis Turpin: The death of the defendant being suggested, his administrators were made parties, and pleaded that their intestate was not guilty.

On the 13th November, 1834, the appellees filed a bill, charging that Henry Hammond, deceased, the father of JVa-than, and husband of Henrietta, by his last will and testament, bearing date the 26th of February, 1828, made the following devises: “ I devise and bequeath to my dear wife, Henrietta Hammond, one-third part of my real and personal estate.

On the 26th day of October, 1836, The Wilmington and Susquehanna Rail Road Company filed the following warrant, inquisition, and sheriff’s return, to wit: State of Maryland, Cecil county, sc.

This was an action assumpsit, instituted on the 15th November, 1834, by the appellee against the appellant. The declaration, was for sundry matters and articles properly chargeable in account, &c. for money paid, laid out and expended, lent and advanced, had and received for. the use of the plaintiff, and also for an account stated. Issues were joined on the pleas of non assumpsit and limitations. 1.

This was an action of debt commenced on the 25th May, 1833, by the appellee against the appellants, and was founded on the bond of William Hall, principal, and Richard T. Hall, surety, bearing date the 27th May, 1829, acknowledging themselves bound unto the appellant “in the full and just sum of ten thousand pounds current money of the United States.” The condition of the bond was as follows: Whereas the above named Edward W. Belt, being sheriff of Prince George’s county, in…

340. On the 13th September, 1836, John Stump, of Cedi county, by his bill complained, that his father was seized and possessed in fee, under a patent of the… Held: used and enjoyed the same, together 'with its rights and advantages of fishery, as laid down in a plat made out and sworn to by the surveyor of Cecil county, and exhibited with his bill, shewing the river, fishing shores, the haul of one of his seines, and the wharf, which the rail road company are constructing.

This was an action of debt, brought on the 15th July, 1833, by the appellant, who declared against the appellee for $450, due on his single bill, executed 1st September, 1831, and to which John S. Williams was the subscribing witness. Issue was joined on the plea of non est factum.