Volume 8 — Maryland Reports

This is the second appeal in this case. The bill was filed on the 13th of October 1845, by Crabbs against Eyler and Matthews, to enforce a vendor’s lien for a balance of unpaid purchase money due for certain lands sold and conveyed by complainant to Eyler, and also to annul a deed by which Eyler subsequently conveyed the property to Matthews.

In this case the orphans court bound out a free colored boy to the appellant, by indenture, dated the 31st of July 1854. On the 9th of October of the same year, the appellee filed a suggestion, in writing, to the court, stating that the indentures were not in conformity with, the act of 1839, ch. 35, under which the court professed to act, for various reasons therein set out.

<p>The proceedings of a county court in Virginia, directing a will to be recorded and granting certificate to the executor to obtain probate thereof, are judicial acts to be authenticated under the act of Congress of 1790, ch. ,18, and a copy of the will, in a transcript of such proceedings so authenticated, is admissible in evidence in the courts of this Stats,</p> <p>A certificate of the clerk, certifying that “the foregoing is a true transcript from the records of the court” of which he was clerk, is sufficient, it being a substantial compliance with the act of Congress.</p>

Tills was a caveat to the will of Peter Hornaker, executed on the 13tli of April 1813 and offered for probate on the 23rd of April 1855, filed by the appellants, as heirs at law, upon (he following grounds: 1st. Because the paper was not signed, by the testator or by any other person in his presence, or by his express directions. 2nd.

The words charged in tire declaration to have been spoken by Fowler of Warner are: “He swore to a lie and X can prove it5” “He swore false;” “He swore to an account which he trumped up against me which was false and untrue, and X want every body to know that he swore to a damned lie 5” innuendo that Warner was guilty of wilful and corrupt perjury. ,The declaration, in its introductory averments and colloquium, slates, that whilst an action of debt was depending before Jacob…

Assumpsit upon a promissory note for $100, executed by the appellees to the appellant. Plea, non assumpsit. Exception. The plaintiff having proved the execution of the note, the defendants produced a witness who proved a payment by one of the makers of $85 on account of the note. This witness was cross-examined by the plaintiff’s counsel and- permitted to leave the witness’ stand, and other witnesses were examined.

The bill in this case was filed on the 8th of July 1852, by ilie appellees, creditors of Robert J. Jamison, to vacate an alleged fraudulent conveyance, executed by him to his mother, Rebecca Jamison, on the 9th of December 1845.

This was an action of assault and battery, and false imprisonment, by the appellant against the appellee. The pleas were non cut. and justification under and by virtue of a writ of ca. sa., and commitment thereon issued by one Houck, a justice of the peace for Carroll county, upon a judgment rendered by said justice on the 14th of February 1851, in favor of the defendant against the plaintiff for $1.50 damages, and $4.95 costs.

<p>The accounts of a guardian settled with the orphans court are but prima facie evidence of their correctness.</p> <p>Where the orphans court appoints a person guardian, expressly upon the ground that he agreed not to receive any allowance for the support of the ward, such appointment operates as a binding contract between the appointee and the court acting for the minor, which the latter may claim the benefit of by an action on the guardian’s bond; the court in such case stands in loco parentis to the infant.</p> <p>A prayer, that from the pleadings and evidence the plaintiff is entitled to .recover a certain sum appearing by his account to have been allowed to a guardian, is defective in taking from the jury the finding of the truth of the facts set out in it.</p>

<p>It is ebror for a court to withhold evidence from the jury, when, by so doing, the court would be deciding the very fact in issue presented by the pleadings, as this would be usurping the functions of the jury.</p> <p>There is no analogy between the terms of the magistrates’ courts, under the act of 1835, ch. 201, and the terms of the county courts.</p> <p>. The magistrates’ courts have no authority to strike out a judgment rendered at a previous meeting on the first day of their next meeting, by acting as of the preceding term.</p>

Assumpsit by the appellant against the appellee, to recover a sum of money agreed to be paid by defendant, in consideration that the plaintiff would forbear contesting the will of Zachariah Conoway.

Trespass q. c.f., by the appellants against the appellee, for breaking and entering their close, called u Brown's First Attempt. Pleas, non cul. and limitations and defence on warrant. Issues were joined and a warrant of resurvey issued, under which locations were made and plats returned.

<p>Since the act of 1841, ch. 163, the defendant cannot rely in this court upon any objection to the jurisdiction of the court bejow, unless it appears by the record that such objection was made below.</p> <p>Where a defendant pleads two pleas, one of which is overruled and the other sustained and the bill dismissed, and the complainant appeals, this court will consider loth pleas, and if either is a good defence, Will affirm the decree dismissing the bill.</p> <p>In all cases of concurrent jurisdiction between courts of law and equity, the statute of limitations is equally obligatory in each court.</p> <p>Where an insolvent debtor makes a fraudulent transfer of money and personal property to a favored creditor, the trustee in insolvency may maintain an action at law therefor against the preferred creditor.</p> <p>Under the act of 1829, ch. 208, sec. 3, the provisional trustee has as full power to sue for and recover property fraudulently conveyed by the insolvent as the permanent trustee has.</p> <p>Limitations will begin to run against such provisional trustee from the time of his appointment and qualification, and when once commenced, continues to run against the permanent trustee also.</p>

Debt brought on the 28th of August 1852, by the appellant, on the testamentary bond of Mary Jane Jones, as executrix of Andrew D. Jones.

Attachment on a judgment against Brashears at the suit of Root, laid in the hands of J. J. Graves, register of the city of Baltimore. It was admitted, that at the time of trial there were in the hands of the register funds of the corporation due Brashears, for services as a police officer of said city, sufficient to pay the judgment upon which the attachment issued. The court below, (Frick, J.,) sustained the attachment, and from that judgment the garnishee appealed.

This is an appeal from a judgment quashing a writ of scire facias upon motion.

Appear from the Superior Court of Baltimore city. Debt, brought by the appellant, on the 30th of October 1849, upon an alleged bond of the appellee’s testator in favor of the plaintiff'for §2000, dated the 11th of December 1838 and payable on or before the 1st of July 1840, without interest until that time. The defendant, as executor, under leave of the court, pleaded non est factum without oath, upon which issue was joined. 1st Exception.

.Assumpsit by tbe appellant against the appellees. The declaration counts upon the special contract set out in the opinion of this court5 and also contains a, count for work and labor, and tbe common money counts. Plea non assumpsit. Three exceptions were taken by the plaintiff to the rulings of tbe court, below, (Marshall, J.,) all of which are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendants and the plaintiff appealed.

Replevin by the appellant, to recover certain goods, merchandise and chattels contained in a store in Baltimore city, which had been mortgaged by tire appellant to tbe appellee, to secure the sum of $500. The damages claimed in the declaration were $500. The properly as appraised in the schedule annexed to the return of the writ amounted to $538.05. Pleas, non cepit and property in defendant.

<p>A prayer which leaves it to the jury to infer that a hill of sale was fraudulent and void as to creditors, from the fact, simply, that the grantor, at the time he executed it, was indebted to several persons, whose debts remained unpaid, without submitting to them any question as to the amount of such indebtedness or the extent of the grantor’s means, or whether he was in embarrassed or insolvent circumstances, is defective.</p> <p>Trover cannot be maintained without a conversion either direct or constructive, and which must be proved either directly or by inference.</p> <p>When the plaintiff fails to prove an actual conversion, he must give evidence of a demand and refusal made at a time, when the defendant had the power to give up the goods.</p> <p>A demand and refusal are only evidence of a prior conversion, which may be explained or rebutted by evidence to the contrary.</p> <p>Where a party in insolvent circumstances sells property, and his vendee sells or disposes of it after the vendor petitions, or if before petition and while the goods are in his possession the vendor makes a second sale, which the first vendee subsequent to the petition adopts or sanctions, it will amount to a conversion by such vendee without a demand and refusal.</p> <p>But the mere fact that a party before he petitions makes a fraudulent bill of sale of property, without any proof as to an actual conversion or a demand and refusal, will not justify a verdict in trover in favor of the insolvent’s trustee against the grantee.</p> <p>A prayer that the insolvent trustee could not recover against such grantee, unless the jury believe the bill of sale void under the insolvent laws, is defective, because though not void under those laws, the deed may still be void under the statute of Elizabeth.</p> <p>The particular day named in the nar, either in reference to the possession of the party whose goods have been converted or to the conversion, is an immaterial averment as to time.</p>

Assumpsit by the appellee against the appellant, to recover for services rendered by the plaintiff to the defendant in the .sale of a farm. Plea, non assumpsit. 1st Exception. The testimony and the prayer of the plaintiff, to the granting of which the defendant excepted, are fully .stated in the opinion, of this court. 2nd Exception.

Assumpsit by the appellant against the appellees. The nar contains the usual money and insimul computassent counts. Plea, non assumpsit.

The bill in this case was filed by the appellant, for an injunction to restrain execution upon a judgment recovered against him in 1843, by the appellee’s testator and his then partner, Elwell, whom the testator survived. The allegations of the bill are fully stated in the opinion of this court. The answer of the executrix denied the facts on which the equity of the bill rested.

The bill in this case was filed for the sale of a tract of land, called “ Timothy Level,” three-fifths of which belonged to the appellee, O’Hern, and the other two-fifths to parties claiming under Samuel Jackson.

This is an appeal from an order of the court below, sitting in insolvency, passed under the following circumstances: Bosley petitioned for the benefit of the insolvent laws and John Glenn was appointed his permanent trustee in March 1828.

Assumpsit by the appellant against the appellee, to recover for damages sustained by reason of the alleged defective and unworkmanlike manner in which defendant had built a warehouse under an agreement with the plaintiff', in consequence of which die warehouse fell down. Plea, non assumpsit, with an agreement that either party may give in evidence any matter which he could rely on by any form or mode of pleading. 1st Exception.

This was an application made to the Court of Appeals, during its session in term time, for a writ of habeas corpus, made by the petitioner, O’Neill, through his counsel, James S. Franklin, alleging that he was unjustly confined in the jail of Anne Arundel county, upon the charge of shooting a free negro with intent to kill.

The record in this case is very voluminous, but the following brief statement of the material facts, together with the report of the opinion of the chancellor, in 3 Md. Ch. Dec., 234, will sufficiently explain the decision of this court: Richard Bonnet Mitchell, about the year 1809, married Mrs. Elizabeth Bedford, the daughter of Daniel Deady, Esq., then a widow and the mother of Henrietta A. Bedford.

This appeal was taken from an order of the court below quashing the return to a writ of sequestration under the following circumstances: The appellants obtained a decree in tire court of chancery-on the 13th of May 1851, against Royston Betts for $21,111.26, under a bill filed in that court on the 16th of January 1849, and on the 6th of September 1851, filed their petition in the case, setting out the decree and the failure of Betts to pay the same, and praying for the writ…

Appe.al froin the Circuit Court for Anne Arundel county. Debt, by the appellee against the appellant, upon a judgment recovered in the circuit court for the District of Columbia. Plea, nil debet, to which the plaintiff demurred. A record of the judgment, with a transcript of the whole proceedings in the district court, was filed in the case. The court, (Brewer, J.,) sustained the demurrer and gave judgment thereon for the plaintiff, from which the defendant appealed.

Assumpsit, by the appellants against the appellee, on an acceptance of defendant on a draft drawn by one Andrew Birmingham in favor of plaintiffs. The declaration contains the common counts only. Plea, non assumpsit. Exception. The facts of the case are fully slated in the opinion of this court.

Debt, in the name of the State, for the use of the appellees against the appellants upon an appeal bond. The condition of the bond and the pleadings in the case are fully stated in the opinion of this court.

In this case the auditor allowed the claim of the appellee against the insolvent estate of Boon. The trustee excepted, on the ground that if there be any claim whatever on the part of Pierson, it is one arising after the application of Boon for the'benefit of the insolvent laws. Testimony was taken, and this exception was overruled by the court, (Marshall, J.,) and the claim allowed. From this order the trustee appealed.

In this case the appellant preferred a claim against the insolvent estate of James Boon of $100, for professional services rendered the trustee in relation to the trust. The proof in regard to the claim is stated in the opinion of this court. To the allowance of this claim the appellee, another creditor, excepted.

Appear from the Court of Common Pleas for Baltimore city. trespass vi et armis, brought on the 18th of July 1854, by the appellee against the appellants for entering the plaintiff^ store house and seizing and taking therefrom certain goods described in the declaration. Plea, non tul. 1 st Exception.

’The appellant was the purchaser at trustee’s sale of a tract of land, and took this appeal from an order of the court below, (Frick, J.,) dismissing his petition and refusing to open the final order of ratification of sale. The facts of the case are sufficiently stated in the opinion of this court.

- Assumpsit by the appellee' against the appellant for services rendered and money advanced, laid out and expended, at defendant’s request. On demand a bill of particulars Was furnished and filed. Pleas, non assumpsit and limitationsj Is/ Exception. The plaintiff after giving evidence of the services rendered by him to the' defendant at Poplar Island,-, offered the testimony of William S‘.

Assumpsit, brought on the 3rd of November 1852, by tbe appellants against the appellees, to recover money lost at play at defendant’s gaming-table by Rogers, their clerk, alleged to belong to the plaintiffs. The count in the near relied on was for money had and received. Plea, non assumpsit. 1st Exception.

This was an attachment, issued at the instance of Peacock, as assignee of the State, on the 29th of October 1850, against Russell and Clarke, and laid in the hands of Pembroke, as garnishee, who appeared and moved to quash the writ, forth e reasons stated in the opinion of this court.

Appear from the Superior Court of Baltimore city. Assumpsit by the appellees against the appellant, to recover the amount of a paving tax assessed upon the defendant as his proportion for paving that part of Biddle street between Pennsylvania avenue and George street. Plea, non assumpsit. Exception.

Assumpsit by the appellee against the appellant,, upon two promissory notes, executed by Isabella Hutchins, the defendant’s intestate, in favor of the plaintiff, one for $750, dated September 12th, 1848, payable in six months, and the other for $463, dated the lltli of December 1848, payable at ninety days. The case was tried upon issue joined on the plea of non assumpsit. Exception.

The bill in this case was filed on the 15th of October 1850, by Brooks, as permanent trustee of Thomas, an insolvent debtor, to set aside certain alleged preferences made by the insolvent to Jerome.

.Appeal from tlie Circuit Court for Prince George’s county. Assumpsit instituted by the appellant’s intestate against the appellee upon an open account, commencing in June 1845 and ending in August 1848. The suit was begun on the 29th of September 1852. Tlie defendant appeared by attorney at the following November term of tlie court.

Petition for freedom, by the appellant, against the appellee. The case was tried upon the issue offreedom, vel non. In the course of the trial two exceptions were taken by the petitioner to the rulings of the court, (Perry, J.,) both of which are fully stated in the opinion of this court. Under the rulings the verdict and judgment were against the petitioner, and he appealed.

Cross-Appeals from the Orphans Court of Allegany county. Normand Bruce, of Allegany county, died intestate, on the 7th of October 1854, leaving a widow, brothers and sisters, a mother, but, no child, grandchild or father.

Assumpsit, brought by the appellants, on the 30th of July 1853, against the appellee and Levin Gardner, on a promissory note of John R. Hill & Co. in favor of the plaintiffs, for $904.65, dated the 8th of April 1850, and payable in six months. The declaration contained a special count upon the note and the usual money count. Gardner suffered a judgment by default, and Hill pleaded non assumpsit and limitations. 1st Exception.

In this case a bill was filed, on the 6th of March 1850, by the general creditors of Joseph Hollman, deceased, for the sale of his real estate, consisting of lots and town property Williamsport and a farm in the country, all of which was bound by judgments recovered in 1837, 1838 and 1840, upon which executions had been issued and levied on his real estate before his death.

The plaintiff in error was indicted for obstructing a public road, in the words set out in the opinion of this court. The traverser pleaded non cul. and submitted his case to the court, (Nelson, J.,) who found him guilty, imposed a fine, and ordered him to abate the nuisance by removing the obstructions specified in the indictment. To correct this judgment, the traverser sued out the present writ of error.

The bill in this case was filed on the 15th of July 1850, by the appellant, as permanent trustee in insolvency of Sprigg So Meseke, to vacate a deed executed by the said insolvents to the appellee, on the 2nd of June 1849. Tlie bill assails Hie deed as void both at common law, under the statute of Elizabeth, and under the insolvent, laws.

The bill in this case was filed by the appellees, the children and heirs at law of Mary Ann Tydings, for an injunction to restrain execution levied by the appellants, who were judgment creditors of Roger Tydings, the husband of said Mary Ann Tydings, deceased, upon the interest of said Roger Tydings, as tenant by the curtesy, in certain land conveyed to his wife in fee by Thomas R. Beard and wife, by deed dated the 8th of January 1848, and to correct an alleged mistake in…

This is the second appeal in this case, the first being reported in 5 Gill, 399. The action was assumpsit by the appellant against the appellee, docketed by consent, at November term 1844, upon a promissory note for $822.19, drawn by the appellee in favor of W. T. Somerville or order, dated the 1st of November 1841, and payable in two years and six months, and endorsed by the payee to the appellant. Plea, non assumpsit. Exception.

This appeal was taken from a decision of the court below (Perry, J.) upon a case stated, between (he appellees, as plaintiffs, and the appellant, as defendant, the facts of which are sufficiently stated in the opinion of this court. The light of appeal to each party was reserved in the agreement of facts, The opinion and judgment of the court below was in favor of the plaintiffs.

<p>Materials for building a bridge, delivered by the contractor at the place designated by the bridge company, accepted and paid for by them in pursuance of the contract under which the bridge was to be built, are, upon the abandonment of the work by the contractor, (which contingency was provided for in the contract,) the absolute property of the company, and are not liable to attachment by the creditors of the contractor.</p>

Appear from the Court of Common Pleas of Baltimore city. Assumpsit by the appellant against the appellee to recover the amount paid by the plain tiff as premiums for certain policies of insurance. Plea, non assumpsit. Exception.

Ejectment by the appellees against the appellant for a house and lot in the city of Baltimore. Plea, non cut. 1st Exception.

This appeal was taken from an order of the orphans court revoking the grant of letters to the appellant and granting letters d. b. n. to the appellees, and directing the appellant to pass another administration account recharging herself with $2415.58, which, in her first account, was retained by her as the widow of the testator, and to distribute the same among those legally entitled. The facts of the case are fully stated in the opinion of this court.

The original bill in this case was filed by the appellant, claiming, among other things, a note for $2673.75 as a gift to the complainant from her father, Solomon Betts, during his lifetime. The defendant Davis was the executor and trustee appointed by the will of Betts to execute the trusts thereof, and the other claims in the bill were founded upon provisions in the will of Betts in favor of his daughter, the complainant.

Asswmpsit by the appellees against the appellant to recover the amount of a promissory note for $122.11, at sixty days, dated the 25th of March 1851, drawn by Wesley P. Walter in favor of Edmond T. H. Walter, the payee, who endorsed it to the plaintiffs, who deposited it with the defendant, the bank, for collection, and the amount of which, the declaration alleges, was lost to the plaintiffs by the neglect of the notary public employed by the bank, in not properly notifying…

Assumpsit by the appellants against the appellee. The first and second counts in the declaration allege a contract between the plaintiff, Elizabeth, while sole and the widow of Mahlon Ely, deceased, that if she, being entitled to administer on the estate of her deceased husband, would relinquish her right and permit the defendant to administer, he would pay over to her all the net commissions except the sum of $100; that she did relinquish and that Miller was appointed by…

'' Covenant by the appellees against the appellant to recover arrears of ground-rent due under a lease for ninety-nine years, renewable forever, executed by Henry Peters to John Wildermanj the rent reserved thereby having been devised by said Peters to the plaintiffs. Idea, nil debei. The case was submitted to the court below upon an agreed statement of facts.