Volume 9 — Gill's Maryland Reports

This was an action of debt, brought by the appellees against the appellant, upon a judgment recovered by them against the latter, in the Supreme Court of Judicature of the State of New York, in Oneida county of said State, on the 12th of October, 1839, for $6,017.02, and costs. The pleas were:—1st. Nul tiel record. 2nd. Payment. 3rd.

This was an action of trover, instituted by the appellee against the appellants, on the 24th of April 1846, to 'recover the value of two negro slaves, Wood and Henry, mentioned in the declaration. Plea ¡not guilty. 1st Exception.

The bill in this case was filed on the equity side of Charles county court, on the 5th of November 1833, by the complainants, Morgan Harris and Etheldra Harris, (the appellee,) his wife.

The allegations of the bill, answers and facts of the case, .are fully stated in the opinion of this court. The receipt alluded to in said opinion, as given by the appellant, is as follows: “Received February 18th, 1843, of Mrs. Mary Shepherd, my guardian, the sum of $571.64, being my full distributive share of my father, the late John Shepherd's personal estate. Jos. Shepherd.” “Witness:—Charles Hodges.

The appellant filed a petition in the orphans court for Baltimore county, on the 29th of April 1848, stating that administration on the estate of Joseph M. Rogers, late of said county, deceased, was granted to Isaac Rogers, the appellee, on the 5th of October, 1848, but petitioner is informed, and believes that said Joseph left a will, by which a legacy is given to him, and he prays that a citation may be issued to said Isaac, and that he be required to produce said will if…

George Hutson died in September, 1846, unmarried and without issue, leaving his mother, Martha Hutson, and one of the appellees, Joseph Hutson, his brother of the whole blood, and the other appellees, bis brothers of the half-blood, besides other brothers and sisters. On the 22nd of September, 1846, a paper purporting to be the last will and testament of said George Hutson, was exhibited to the orphans court of Baltimore county for probate. .

Cross appeals from Baltimore county court. This was an action of assumpsit, instituted by Cumberland D. Hollins of Rob’t, and Cumberland I). Hollins of Jno., against Daniel Coonan, for money alleged to be due to the plaintiffs, for the use and occupation of a certain dwelling house, particularly described in the proceedings. The defendant pleaded non-assumpsit.

This was an action of debt, instituted on the 16th of March 1838, by the appellees* executors of David Williamson, Sen., against Elizabeth Mitchell, executrix of James D. Mitchell, upon a bond for $2000, executed by David Williamson, Jr., as principal* and said James D. Mitchell as surety, on the 17th of August 1833, and payable to the plaintiffs as execulors as aforesaid, within two years from date.

The appellees, heirs and distributees of Peregrine Hayden, deceased, filed their petition in the orphans court of Saint Mary's county, on the 6th of December, 1849, charging that the appellant, who was one of the sons and distributees of the deceased, had received large advancements from his father in his life time, which they pray may be deducted from his distributive share of the deceased’s personal estate, all of which the appellant denied by his answer.

Mary's county. Susan Parker died in 1848, leaving a will, executed on the 27th of February, 1843, by which, after sundry legacies, she declared: “ It is further my will and desire, that the rest and residue of my estate and property, after satisfying said gifts and bequests as aforesaid, shall be divided among such of my nephews and nieces, the children of my brother Isaac, and of my deceased brother Charles, and sisters Margaret and Sally, as shall be living at the time of…

The appeal in this case was taken from an order of the orphan’s court of Prince George’s county, of the 15th of November, 1849, directing Jeremiah Townshend, one of the appellants, as Administrator ad colligendum of the estate of John Townshend, deceased, to pay to the appellee, one of the executors named in the last will and testament of the deceased, a sum of money for payment of fees to counsel for the trial of certain issues framed in a caveat, against the admission of…

Upon the petition of the appellees, the commissioners of Baltimore county, acting under the act of 1825, ch. 219, appointed special commissioners, to adjudge and determine whether a certain road in said county, leading from “Hunter's mill to the York turnpike near Webster's mill,” should not be shut, and to report their proceedings. These commissioners thus appointed made return, that in their opinion public convenience required that said road should be shut.

This was an action of trover, instituted by Francis J. Brummett, the appellant, against the appellees, as admr’s of William P. Golden, deceased, to recover the value of two bonds, the property of the plaintiff, which the declaration alleged had been converted by the intestate in his lifetime. The defendants, the administrators, filed a general demurrer, which the county court sustained, and the plaintiff appealed.

This was an action of debt, instituted by the Slate upon the bond of Alexander Milburn, with the other appellees as his sureties, as the collector of the State tax in Saint Mary's county, for the year 1845. The bond is dated 26th of April, 1845. At the trial, but one exception was taken, which, with the pleadings in the case, is set out in full in the opinion of this court. Judgment was rendered for the defendants, and the plaintiff appealed.

Mary’s county court. In this case an action of debt was instituted by the State upon the bond of Alexander Milburn, (given by him and his sureties, the other appellees,) as collector of the State tax in St. Mary’s county for the year 1846.

Rebecca Garret and her five children, by B. C. Presslman, their next friend, filed their petition for freedom in Baltimore county court, on the 8th of March, 1849, alleging that they were in the custody of Thomas Anderson, of Howard district, having been forcibly taken from the jurisdiction of said court by J. C. Anderson, as agent of said Thomas, and that they are entitled to their freedom, which they pray may be inquired of by said court.

• The facts of (his case are fully stated in the following opinion of the chancellor, (Johnson,) accompanying his order dissolving the injunction obtained by the appellants, the complainants below. “ This cause, though not very important with reference to the amount ipvolved in its decision, is yet not destitute of interest to the commercial community. jf It appears, that some time in the month of April, 1848, the complainants, trading under the firm of Gwynn and Company,…

This was an action of assumpsit brought to September term 1846, of Baltimore county court, by the appellant, who is styled in the declaration, “assignee in bankruptcy of John Hoover, under a decree… Held: possessed, controlled or claimed by gift, grant, sale, transfer or otherwise, from Hoover, with the yalu.e of the same, and the amount of proceeds if any part has been sold. 4th.

This was an action of debt brought by the appellant against the appellees, administrators of Francis H. Smith, upon the following single bill: “Six months after date, for value received, we, or either of us, promise and oblige ourselves, our, and each of our heirs, executors and administrators, to pay to Josias Clements or order, the sum of three hundred dollars.-—Witness my hand and seal, this 25th day of August, 1845.—The erasures first made. Ms Francis m Smith, mark.

This was an action of trover' brought by Eugenius F. Edelen,- (the appellant,) against Alexander Middleton, (the appellee,) to recover in right of his deceased wife, a negro woman, Poll, and her increase, and Gusty', mentioned in the clause of the will of John' B. Thompson, executed in 1808, and admitted to probate 1815, recited in the opinion of this court by his honor, C. J. Dorsey.

This was a plenary proceeding, instituted by said orphans court upon the petition of the appellees, to set up a last will and testament, which the petition alleges was executed by a certain Joshua Chilton, the grandfather of the appellees, Harriet and Armistead, in his lifetime, when he was of sound and disposing mind, memory and understanding, and capable in law of making a valid deed or contract, and which he destroyed when he was not capable of revoking a last will and…

This was an action of debt, brought in the name of the State, upon a bond given by the appellee and his securities, as administrator pendente lite of Thomas Cramphin's will. The original writ was endorsed for the use of George Calvert, administrator of Thomas Cramphin.

This was a bill filed by the appellant, the trustee in insolvency of Henry Keene, to avoid an assignment made by the insolvent to the appellee,, before his insolvency, as a fraud upon the insolvent laws. The bill states, that on the 30th of April, 1847, Keene, assigned by deed of that date, all his property to the defendant in trust, to be distributed among his creditors.

This was an action of assumpsit, instituted by the appellant, the plaintiff below, against the appellee. The nar contained the common money counts. The pleas were nonassumpsit and limitations. A verdict was taken by consent in favor of the plaintiff, subject to the opinion of the court on a case- stated.

This appeal was taken by the appellants from two orders of the court below, the one, of the 2d of March, 1849, directing the auditor of that court to state an account, allowing priority to a mortgage held by the testator of the appellee, in the distribution of the funds arising from the sale of certain mortgaged real estate, sold under a decree obtained upon a bill filed by the executor of Woollen, one of the appellants; the other dated 29th of March, 1849, ratifying the…

The appellee filed her bill in the court below, claiming asa devisee under the will of the appellant’s testator, which will directs the proceeds of certain real estate, to be sold by the executors, to be distributed among the children of the testator.

This was an action of assumpsit brought by Leighton the legal plaintiff, for the use of Kelly, Ball and Ricards, against the appellees. The nar contains a count for goods sold and delivered, the common money counts and a count on an insimul compuiassent. The plea was non assumpsit.

This was an action of covenant, instituted by the appellee against the appellant, upon the following agreement. “Memorandum of an agreement made this 16th day of February, 1848, between Ethelbert Taney, of Hancock, Washington county, Maryland, of the one part, and John Bachtell, of Morgan county, Virginia, witnesseth, that said Taney agrees to transfer his present stock of merchandize, together with the house and lot situated in the west end of Hancock, Maryland, and at…

The bill in this cause was filed on the 28th of June 1848, by the appellant, as the trustee in insolvency of John Davis, to vacate a deed made by said Davis, previous to his application, to his son Charles W. Davis.

This appeal was taken by the appellants, creditors of Barney Diltey and Benjamin R. Edwards, two of the appellees, from an order of the chancellor passed on the 13th of March 1849, dissolving an injunction and dismissing the bill of the appellants, which they had filed for the purpose of vacating an assignment of a policy of insurance, of the Merchants Fire Insurance Company, made by Edwards to Joseph Dilley, the other appellee, as fraudulent under the statute of 13th…

This appeal was taken by the appellant, (the defendant below,) from a judgment of the county court, (Marshall, A. J.,) in an ejectment case.

This was an attachment issued by the clerk of Allegany county court, at the instance of the appellant (the plaintiff below) upon the transcript of ajudgment of a justice of the peace, taken from the justice’s docket, filed in the clerk’s office of said county.

This was an action of covenant brought by the appellee against, the appellant, upon the agreement referred to and set out in the opinion of this court. The declaration after averring performance of the agreement on the part of the plaintiff, charges three breaches by defendant. 1st. That he had refused to give possession or convey the Missouri lands to plaintiffs. 2nd.

This was an action of ejectment. The appellees, the plaintiffs below, claimed the land as heirs at law of Jacob Rohrer, deceased. The appellants, the defendants below, claimed, under the deed from Jacob Rohrer to Joseph Graff, referred to in the opinion of this court. The judgment was for the plaintiffs and the defendants appealed.

Tins was an action of trespass on the case brought by the appellee against the appellant, the late sheriff of Washington county, for a false return to certain fi. fas. upon judgments obtained by the plaintiff against Abraham Barnes. The defendant pleaded not guilty and limitations. The plaintiff applied for a rule to show cause why the plea of limitations should not be stricken out.

<p>A plaintiff in an ejectment suit, altor the commencement of the action, but bofore trial, conveyed by deed, Ms interest, in the lands in controversy, to a third party. Held : That this dead was a bar to Ms recovery.</p> <p>To recover in ejectment, the lessor of the plaintiff must have the legal estate in the land, both at tho commencement and trial of the cause.</p> <p>The title to lands draws to it tho seizin, so that one who has title, is by force of his title, in possession, until an ouster or disseizin is committed upon him, by some one entering upon the land, with a claim of adverse possession.</p> <p>Where a person claims by possession only, without showing any title, ho must show an exclusive, adverse possession by enclosure, and bis claim cannot extend beyond his enclosure.</p> <p>There must be a real and substantial inclosure, an actual occupancy, or possessio pedis, which is definite, positive, and notorious, to constitute an ad-verso possession, when that is the only defence to countervail tho legal title.</p> <p>No adverse possession short of twenty years, will destroy the legal title.</p> <p>The deed of a plaintiff in ejectment, conveying the lands in dispute, made after commencement of the suit, is not void, because the defendant, at the dale of its execution, held adverse possession of the land.</p> <p>Two brothers whose farms adjoined, were both mistaken about their division line. Held, that this mistake could not affect the title of either, And the one who hold over on tho other, cannot claim adverse possession, because, he and the real owner supposed the division line to run in a different direction : neither held adversely to the other.</p> <p>A bona fide conveyance of the land in dispute, for a valuable consideration, made after commencement of the suit by the plaintiff, in an action of ejectment, is not void for maintenance, or champerty.</p> <p>A defence on warrant, is not necessarily a defence by adverse possession,</p> <p>A defendant, at first, look defence on warant for the whole land in dispute, which he afterwards abandoned as to part. Held, that the plaintiff could not make use of the first defence, in order to show adverse possession of the whole in the defendant.</p> <p>If a party pleads payment, and afterwards substitutes for that plea non est factum, the former plea cannot be relied on, to prove the instrument his deed.</p> <p>It is no objection to the competency of a witness, that he is the acting attorney for the party, in whose favor he offers to testify. Such objections go to the credibility, and not the competency of a witness.</p>

This was an appeal taken from an order of the county court, overruling a motion to quash an execution issued upon a judgment obtained by the appellee against the appellant and his securities, upon his official bond as a collector of Allegany county. The facts of the case are fully stated in the opinion of this court.

This was an action of assumpsit brought by the appellee against the appellants upon the following promissory note. “ $618. Cumberland, August 6th, 1845. Four months' after I promise to pay to the order of John Coombs, six hundred and eighteen dollars for value received negotiable and payable at the Cumberland Bank of Allegany.

The appellant (the plaintiff below,) made a contract with the appellees (the defendants below,) for grading a section of railroad. The terms of the contract are sufficiently stated in the opinion of this court. The defendants having in the manner stated in the opinion prevented the plaintiff from prosecuting the work, the latter brought his action of assumpsit for the value of the work done.

This was an action of debt brought by the appellee against the appellants on the 4th of September 1846, upon a single bill executed by the latter on the 11th of April 1840, for §>350, payable to the appellee twelve months after date. Baugher one of the defendants appeared and pleaded several pleas of usury under the act of 1704.

The appellant, (ihe plaintiff below,) brought his action against the appellee, (the defendant below.) The declaration contains two counts.

This was an action of debt, instituted, originally, by Isaac Baugher, the testator of the appellants, upon two single bills, for $450 each, executed on the 23d of February, 1844, by Samuel Duphorn, as principal, and the other appellees as his sureties, in favor of James Wilson, administrator, d. b. n., of Frederick Beard, and payable on the 1st of August, 1844 and 1845, respectively, and assigned by Wilson to Isaac Baugher, the plaintiff, by assignment in writing, at the…

This was an action of ejectment brought by the appellant for a tract of land called “Lorrain, ’ ’ containing 600 acres. The defendant the appellee, under the plea of not guilty, took defence upon his title for eight lots, the numbers of which are stated, “lying west of Fort Cumberland the same being part of said tract of land called Lorrain.” 1st* Exception.

This was an action of replevin brought by the appellant, as administrator of Walter Clarke, for a negro boy named Henderson. The pleas were non cepit, property in the defendant, and property in a stranger. The facts of the case and the exceptions, are all fully stated in the opinion. The verdict and judgment was for the defendant, and the plaintiff appealed.

<p>By the act of 1836, oil. 128, sec. 2, a complainant lias authority under the commission in chief, to take all the testimony necessary to sustain his case, as well against defaulting as other defendants, and such commission dispenses with the execution of an ex parte commission issued under the act of 1820, ch. 161.</p> <p>An interlocutory decree was passed against two defaulting defendants, and an ex parte commission ordered. On the same day the guardian of an infant defendant appeared, and a commission was then issued to commissioners, “ as named on the part of complainant and defendants,” requiring notice to be given “ to tho respective parties.” Held : That this was a commission in chief.</p> <p>Where an infant answers by guardian, admitting the facts stated in the bill or making no defence, the act of 1836, ch. 128, sec. i, connects and binds the interest and defence of such infant with that of the other defendants, and the evidence taken for the complainant under a commission issued in due form, necessarily operates against all the defendants.</p> <p>This act of 1836 assumes for the court the duty to see, that no substantial rights of the infant are injuriously affected by the proceedings under the commission, and in the cause.</p> <p>Whether notice of the execution of a commission be served on tho guardian to tho infant or his solicitor, it is in view of the act of 1836, surplusage, and can vitiate nothing that is presumed to have been done under it.</p> <p>Tho practice that occasionally occurs, of making the complainant tho trustee for the sale of tho property under the decree, is objectionable.</p>

<p>Appeal from Anna Arundel county court.</p> <p>This was an action of assumpsit brought by the appellee as holder, against the appellant, as endorser of the promissory note referred to in the opinion. The plea was non assumpsit. All the facts of the case are fully stated in the opinion of this court. The verdict and judgment was for the plaintiff, and the defendant appealed.</p>

<p>A bill of exchange was not presented for payment, nor protested, until four days after its maturity. Held : That this presentment was not within a reasonable time, and the drawers were discharged.</p> <p>Whether the circumstances of any particular case are sufficient to dispense with demand and notice, is always a question of law, addressed to the judgment of the court.</p> <p>If the facts on which this question arises be admitted, or undeniable, then it is exclusively a matter of law, to be pronounced by the court, but if the facts be controverted, or tho proof be equivocal or contradictory, then the court hypothetically instruct the jury as to the law.</p> <p>If the drawer had no effects in the hands of the drawee, from the time the bill was drawn until it became duo, he is liable without proof of demand and notice.</p> <p>But where the drawee has something equivalent to effects, orhas made an express or implied agreement to accept and pay, or the drawer has any reasonable expectation that the bill will be accepted' and paid, he is entitled to demand a notice.</p> <p>The reasonable grounds required, are not such as would excite an idle hope or wild expectation, or a remote probability that the bill will be paid, but such as create a full expectation, a strong probability of its payment; such as would induce a merchant of common prudence andordinary regard for his commercial credit, to draw a like bill.</p> <p>There is no such stringent rule, as to require the drawee to have funds of the drawer in hand, at the maturity of the bill, sufficient for its payment, in order to entitle the latter to'demand and notice.</p> <p>If the drawer, at the time the bill should have been presented, had the right tQ’expect,-reasoning upon the state of facts connected with the transactions as they then existed between him and the drawee, that his bill would be honored, ho is entitled to demand and notice.</p> <p>The insolvency of the drawee, furnishes no excuse for the neglect of the holder, to demand payment and give notice of non-payment.</p> <p>A bill for $3000, was drawn under the authority and assent of the drawees, uponKhe faith of consignments, to be made to them by the drawers. The drawees were advised of the draft and of a particular consignment to meet it, and they promised to honor it when presented. The consignment was received by the drawees, and disposed of for $7000, before the maturity of the draft. After consignments were afterwards made and other drafts’drawn and accepted, so that at the maturity of the bill, the drawees-had not funds sufficient to pay it, after payment of drafts subsequently, drawn and accepted, Held : That under these circumstances, the drawers were entitled to demand and notice.</p> <p>The laches of the holders discharged the drawers; and the bill cannot be given ift‘evidence on the counts, for money had and received.</p>

This appeal was taken from a decree of the chancellor, (Johnson,) passed on the 7th of December, 1848, dismissing the bill of the appellant’s testatrix, the complainant below.

The legislature, in December, 1845, passed an act, (1845, ch. 75,) entitled: “ An act to authorise and direct the attorney general, to institute proceedings against the board of commissioners for the Frederick Female Seminary. ” The preamble states: “Whereas, it has been represented to the General Assembly of Maryland, on the memorial of Alexander B. Hanson and Jacob Markell, two of the commissioners of the Frederick Female Seminary, that the charter or franchise of said…

The bill in this case was filed on the equity side of Somerset county court, by the appellee, (formerly Julianna Stevens,) and exhibits the will of Levi Stevens, the father of the complainant, which contains the following clause; “I give and bequeath to my daughter Julianna Stevens, two hundred dollars, to be paid to her out of my personal property, also my negro woman Rose, from and after the death of my wife, to her and her heirs and assigns forever.” The bill alleges that…

This case originated in a creditor’s bill filed in the court of chancery, on the 9th of December, 1826, by Samuel Harrison, a judgment creditor of John Merchant, deceased, against A. B. Harrison, the administrator, and John Perrin and others, the heirs at law of said John Merchant, for a sale of his real estate to pay his debts.

The bill in this case was originally filed by the testator of the appellant against the appellees.

Ai>peal from Somerset county court. Isaac Dixon died in July 1788, leaving a last will duly executed, to pass real estate, on the- 9th of May, 1788, in which, after giving to his wife a life estate in one-third of the plantation on which he resided, devised as follows: “2nd.

This was an action of debt, brought in 1840, by William G. Robey and Grace Ann, his wife, the appellees, against the appellants on their bond, as executors of Walter W. Hannon, to recover a legacy claimed by the said Grace Ann, under the will of tire testator. The defendants pleaded general performance, and the plaintiffs replied by setting out the will and the amount claimed in the usual form.

The bill in this case was filed by the appellees against the appellant for the specific execution of a contract for the sale of lands. The terms of the contract are stated in the opinion of this court.

On the 2nd of July, 1850, the appellee presented his petition to McLane Brown, a justice of the orphans court of Howard district, for the benefit of the insolvent laws.

. The will of George Hutson, deceased, was admitted to probate, and. letters testamentary granted to the appellees, named therein- as executors. Afterwards,, a caveat was filed by the appellants, praying that the probate of this will might be revoked and the will set aside. Certain issues were then framed and sent to Baltimore county court for trial, and. among others, the following.

This was an action of assumpsit by the appellee against the appellant, to recover the amount of a medical account. Plea, non-assumpsit and issue. The services were rendered to Juliet McGill, her children and servants, whilst she was a feme sole. Exception.

This appeal was taken from an order of the Orphans court revoking letters of administration granted to the appellant, upon the estate of Mrs. Ann M. Miller, who died intestate leaving three sisters and one brother. The appellee is the oldest sister, being also older than her brother, and the appellant is the husband of one of the younger sisters.

This is an appeal from an order of the orphans court, admitting t© probate testamentary words purporting to be the nuncupative will of Richard H. Owings, deceased, reduced to writing by Basil Owings, the father of the deceased, and one ■of the attesting witnesses, as follows: “ On the 29th day of August, 1849, Richard H. 'Owings, of the city of Baltimore, called on Mr. Taylor, Mrs. Mills, and myself, to witness his will, which he declared to be as ■follows: * I leave all…

. The bill in this case was filed by the appellee, the complainant, against the appellant, as defendant, on the 16th of December, 1850, for an account, and the appointment of a receiver. It alleges that complainant and defendants were joint owners of the barque Tarquín, complainant owning three-fourths, and defendant one-fourth, for which he had paid in cash, $200, and gave his note, now held by complainant, for $1487.40, the balance of his one-fourth.

Richard Ragan, Sen., by his will executed on the 19th of April, 1843, devised to his son, William Ragan, the appellee, a farm called “Downey's Lot,'' and appointed Charles Mac-Gill, Jervis Spencer and Richard Ragan, Jr., his executors. The testator died in November, 1850, and on the 29th of the same month, the will was admitted to- probate, and letters testamentary granted to the said executors.

This was an action of assumpsit by the appellee against the appellant. The writ was sued out on the 1st of December 1848, returnable to the following April term of the court, at which term the defendant appeared and the plaintiff was laid under rule nar to¡the next rule day of the court, being the 20th of September following. The declaration was not filed until the 19th of October following the rule day.

The bill in this case was filed by the appellee on the 31st of October 1S4S, against the appellant as the administratrix of Timothy Buckley, deceased, for a distribution of the deceased’s estate. The bill alleges that the said Timothy died, in June 1847, intestate, possessed of a large personal estate, and leaving four children, viz : Patrick, Catharine, Mary the complainant and Ellen, all of full age, his distributees.

This case arises out of a bill filed by the appellee on the 1st of February, 1849, to obtain discovery from Burckmeyer and Adams, with a view to his defence in an action of law then pending in their names, against him, in Baltimore county court, and for an injunction restraining proceedings upon the suit at law, until such discovery be made.

On the 8th of June, 1846, the appellants, who are next of kin of John Townshend, late of Prince George’s county, deceased, filed, in the orphans court of said county, a caveat against the admission to probate of a paper purporting to be the last will and testament of said deceased, executed on the 17th of December, 1S44, and offered for probate by the appellees, the executors therein named, on the 15th of May, 1846.