CONTAINED IN THIS VOLUME.
ABANDONMENT.
See Insurance 3, 4, 5, 6, 72
ACKNOWLEDGMENT OF DEEDS.
1. Where the official character of the
persons, before whom the acknow-
ledgment of a deed for lands execu-
ted in 1738, does not appear on the
face of the acknowledgment, and it is
equally silent as to the county in which
it was taken, and there is no evidence
to warrant the presumption that the
original deed was acknowledged in
conformity to the provisions of the
act of 1715, ch 47, a copy cannot, per
se, be read in evidence. Connelly v
Bowie,
2. A deed of a nonresident grantor, ac-
knowledged by an attorney, under a
letter of attorney proved before one
justice of the peace only, is invalid.
Beall's Lessee v Lynn,
See Conveyance 4, 8.
Letter of Attorney 1, 2, 3, 4.
ACQUIESCENCE.
See Court of Chancery 46, 50.
1. An action on the case will lie for a
consequential injury sustained by the
plaintiff, where both an immediate
and consequential injury is alleged-
as, where he proved that a servant of
the defendant, with his express direc
tions, rode his mare several miles
through different farms, and turned
her out, whereby he lost her services
for many days; which the defendant
attempted to justify, by offering to
show that the mare was trespassing
upon his close-It was held, that the
defendant had the right to arrest the
mischief to his close, by removing the
trespassing animal to the exterior
limits of it, but further than this he
could not go. Knott v Digges, 230
The giving a remedy by distress or
action of debt, is cumulative only, and
does not take away the action arising
by implication on the legal obligation
to pay a claim created by law. The
Mayor, &c. of Baltimore, v Howard,
See Agreement 13, 14.
Deceit.
1795, ch 56, (Attachment.) 446
1796, ch 67, 8 13, (Manumission.) 16
s 19, (Pass to a Slave.) 9
1797, ch 54, (Charter to Baltimore.)
375
1802, ch 94, (Election.). 156, 258
1804, ch 55, 8 3, (Removal of Criminal
Cases.)
268
1807, ch 151, (Appeals & Writs of Er-
(ror.)
99
1809, ch 153, s 2, (Amendment.) 282
1810, ch 34, (Lapse Devise.) 54
1812, ch77, (Void Transfers &c.) 264
ch 135, 83, (Judgments.) 273
1821, ch 244, (Removal of Criminal
Causes.) Held to be unconstituti-
1. When men of sufficient understand-
ing come to a settlement of their va
rious transactions, and enter into so-
lemn instruments of writing, purport-
ing to settle the amount due from
the one to the other, such adjustments
should not be shaken, except on the
most irrefragable proof that adhering
to the settlement would be produc-
tive of clear and evident injustice.
Per Johnson, Chan. Watkins & Stock-
ett, adm'r. D. B. N. ct. al.
437
ADMINISTRATION BOND.
1. The surety in an administration or
testamentary bond, is a competent
witness for the administrator or exe-
cutor. Ferguson v Cappeau's adm'r.
2. All statutes made in pari materia are
to be taken and construed together;
as if they were one system, and that
though not expressly referring to each See Evidence 8.
other and even after one has expired
or been repealed.
ADVERSARY POSSESSION,
See Court of Chancery 5, 6.
3. Where an act of assembly authorises See Executor and Administrator.
the collection of taxes imposed by
such act, by distress or action of debt;
or where an act authorises the tax,
but gives no remedy, in either case,
an action of assumpsit will lie,
4. Where an act of assembly gives a
power to a corporation "to tax any
particular part or district of the city,
for paving the streets, &c. therein, or
for sinking wells, or erecting pumps,
which may appear for the benefit of
such particular part or district"-Held, 1.
that the word "which" extends as well
to the paving the streets, &c. as to
the sinking of wells and erecting
pumps. The Mayor, &c. of Baltimore
v Moore & Johnson,
5. Where a law is of doubtful construc-
tion, that interpretation should be
given it, so far as it can be done,
which is pregnant with the least mis-
Ib. 381
6. The words and meaning of one part
of a statute may sometimes lead to
and furnish an explanation of the sense
of another; and it is a rule in the ex-
position of a statute, that one part
should be taken with another, and
the whole be considered together,
and so construed as that no clause,
sentence or word, shall if it can be
avoided, be superfluous or insignifi-
cant. The Mayor, &c. of Baltimore, v
Howard,
See Preamble.
Public Laws.
ACTS OF CONGRESS,
See Insolvent Debtors 7, 8.
An agent is not answerable for negli-
gence or inattention, where a bill of
exchange was placed in his hands for
collection, and he undertook to col
lect it according to the usages and
customs of merchants and banks, by
sending it to a bank for collection,
and owing to the bill having been de-
manded and protested for nonpay-
ment on the fourth day after it fell
due, the endorser was discharged, and
the amount of the bill thereby lost.
Jackson v The Union Bank of Mary-
land,
2. An agreement, that "I have this 9th
of January 1817, hired of G. P. the
following slaves, for the use of R. K.
H. to give $80 as wages for each of
the slaves, and to furnish them with
all necessary clothing and food," (then
stating the names of the slaves,) and
signed "P. K."-Held not to bind P.
K personally. Key's Ex'r. v Parn-
ham,
See Assumpsit 4.
Consignee 1.
Contract 1.
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2. It is essential, however, that such
fraud, mistake or surprise, should be
alleged in the bill as the ground and
object of the parol proof.
Ib.
3. Where there is a subsisting special
agreement, a party to it cannot recover
on general counts; he must declare on
the special agreement, and that being
the gist of the action, it must be stat
ed in the declaration. Watkins v
Hodges & Lansdale,
38
4. A declaration on a special agreement
must state all the essential parts of
the agreement,
Ib.
5. Where an agreement formed an en-
tire contract, to enable the plaintiff to
recover on it, he must prove a per-
formance, or tender to perform every
thing required by it on his part to be
performed,
lb.
6. If a contract be rescinded by the par-
ties after its part performance by the
plaintiff, he may recover for the part
performance on a general count, lb.
7. A subsequent parol agreement to
postpone the delivery of articles un-
der a contract without seal, is not a
waiver of the contract, but only an
enlargement of the time for its per-
formance,
Ib.
8. If there is a special agreement be-
tween the parties, open and unre-
scinded, it is indispensably necessary
that the plaintiff should declare up-
on it; and he must state his case as
it is. Speake v Sheppard,
81
9. Where the contract proved in evi-
dence varies from the contract declar-
ed upon, the plaintiff cannot recover
on it; nor can he recover on a quan-
tum meruit; because there was a speci-
al agreement,
Ib.
But if he decides upon a speci-
al contract, and fails to prove it, but
proves an agreement, and a perform-
ance of it, it raises a duty for which a
general indebitatus assumpsit will lie.
Ib.
11. On the defendant's prayer to direct
the jury, that if they believed that
there was an express contract be-
tween the plaintiff and defendant for
YOL. VI.
building a house, by which the de-
fendant was to pay a specified sum of
money, then the jury could not im-
ply a new contract, which was to de-
stroy the original, or to be made the
foundation of the plaintiff's claim.
The county court refused to give the
direction; but directed the jury, that
if they found, from the evidence,
that any alterations or additions to the
original plan of the building were
made with the knowledge of the de-
fendant, for which he paid, that then
they might find from that fact, that
the original contract was rescinded;
and that if it was so rescinded, the
plaintiff was entitled to recover for
the other additions or alterations in
the building, which were made with the
knowledge of the defendant, and not
objected to by him at the time. On ap-
peal, reversed. Berry v Thompson, 89
12. Where P contracted with N for the
sale of certain slaves, and N was to
take them into his possession, and pay
for them at an ensuing day, but the
property of P was to continue until
they were paid for, and a part of the
price agreed upon was paid to P.-
Held, that P did not, at the time of
the contract, part with his interest in
the slaves; that the payment of the
whole of the stipulated price was a
condition precedent, on the perform-
ance of which alone, and not before,
the title could vest in N. That the
part payment was not such a perform-
ance as could of itself have the effect
to divest P of his property, but that
the title remained in him notwith-
standing any indulgencies which he
may have extended to N; and al-
though he might permit the possessi-
on to remain in N, he was under no
obligation to stand by and suffer N to
transfer them to another person, and
thereby incur the risk of losing them
altogether, but had a right to assert
his claim whenever he saw them pas-
sing into other hands, on the ground
that the title by the terms of the ori-
ginal contract was never out of him.
Corse v Patterson,
13. A fi. fa. on a judgment obtained by
B against L, was placed in the hands
of M, a sheriff, and by him laid upon
the land of L, who, at the sale, per-
ceiving that it would not sell for its
real value, entered into a verbal agree-
ment with W that he should bid it off
for and upon L's account, to enable
him thereby to gain time to raise the
money. W did bid off the land at
less than its value, but conceiving the
design of turning the purchase to his See Parol Evidence 1, 14.
advantage, entered into a fraudulent
agreement with M, to retain it for their
mutual benefit, and refused to relin-
quish it to L, who had made an ar-
rangement with B for payment of the
debt. For this violation of his agree.
ment, L brought an action on the
case, on the verbal agreement against
W, who rested his defence on the
statute of frauds-Held, that the ac-
tion, not being founded on deceit,
misrepresentation or fraud, is within
the statute of frauds. Lamborn v Wat-
son,
252
1. Courts of equity in this state have
jurisdiction in cases of Alimony.
Wallingsford v Wallingsford,
485
2. Alimony is a maintenance for the
wife, where the husband refuses to
give it, or by his improper conduct
forces her to separate from him. It
is not a portion of his real estate to be
assigned to her in fee, and subjected
to be sold by her, but a provision for
her support, to continue during their
joint lives, or so long as they live se-
parate,
14. Held, also in an action on the
case against M, the sheriff, that the 3.
agreement was within the statute of
frauds, and that the plaintiff could
not recover. Lamborn v Moore, 422
15. Courts of law, as well as of equity,
have cognizance of fraud, but courts
of law relieve against it negatively,
by inquiring into the circumstances,
and not permitting plaintiffs to re-
cover in actions brought on deeds or
contracts fraudulently obtained, and
thus virtually annulling such deeds or
contracts as against the fraudulent
parties. But they cannot entertain
actions upon verbal contracts within
the statute, on the ground of fraud in
refusing to perform them. Lamborn
v Watson,
16. An agreement between the parties
to arbitrate a dispute between them,
does not divest courts of justice of
their jurisdiction. Allegre v The Ma
ryland Insurance Company, 408
17. A written agreement cannot be ex-
plained by a subsequent letter of one
of the parties, Key's Ex'r. v Parn-
ham,
18. Where, upon the face of an agree
ment, one of the contracting parties
appears plainly to be acting as the
agent of another, the stipulations of
the agreement operate solely to bind
the principal, unless it manifestly ap-
pears that the agent intended to super-
add or substitute his own responsi-
bility for that of his principal, Ib.
19. An agreement, that "I have this
9th of January 1817, hired of G. P.
the following slaves, for the use of
R. K. H. to give $80 as wages for each
of the slaves, and to furnish them
with all necessary clothing and food,”
(then stating the names of the slaves,)
and signed "P. K."-Held, not to
bind P. K. personally.
16.
See Alimony 6.
Ib.
Before a decree for alimony can be
had, the court must know, either
from the admissions of the parties, or
from other evidence, that the hus-
band refuses to maintain his wife, or
has forced her to leave him; and also
the value of his estate.
4. On a bill for alimony the court can-
not decree a sale of any part of the
husband's estate,
16.
Whether or not articles of agreement
immediately between husband and
wife, for her separate maintenance,
will be enforced? It is clear, how-
ever, that she can make no such
agreement by attorney,
Ib.
6. On a petition by the wife for alimo
ny, and the husban I's appearing, anď
by his answer stating "that he was
willing to allow her a maintenance,
to let her have $2000; the property
she had before received from him to
be valued by J M and JH, as a part
of it; the balance of said $2000 to be
taken by her in such of his other pro-
perty as she might choose at a valua-
tion by JM and J H, and the balance
in money, or notes made payable to
them, at such periods as they should
determine to be reasonable, and to be
held and applied by them to her se
parate use," accompanied with a
written agreement, signed by the
husband and by the wife's attorney,
that the court should decree accord-
ing to the proposal in the husband's
answer.-Held, 1. That no decree
could pass to enforce such an agree-
ment. 2. If it could, that a decree
could not be had for a sale of any
part of the husband's estate. 3. That'
if J M or JH declined to make the
valuation proposed by the answer,
the court had no authority to substi-
tute, without the husband's consent,
any other person to make such valua
tion; and, 4. That it was not a case-
proper for a decree for alimony, be
ALLEGATA & PROBATA.
See Agreement 9.
Court of Chancery 21, 22, 23.
Words 2.
See Inquiry of Damages 1.
ANSWER IN CHANCERY,
See Alimony 6.
Court of Chancery 38.
Evidence 11, 12, 34, 35.
1. An appeal will not lie from an inter-
locutory decree of the court of chan-
cery, by which no question of right
between the parties is decided. Snow-
den, et al. v Dorsey, et al.
114
2. The refusal of the county court to
strike out a judgment by default, and
suffer the defendant to plead, is not
a subject of appeal, and cannot be
revised by the court of appeals.
Jackson v The Union Bank of Mary
land,
151, (note)
3. S, obtained a judgment in the coun-
ty court against D), which was remov-
ed to and affirmed in the court of ap-
peals, D afterwards obtained an in-
junction to stay proceedings thereon,
which was continued until final hear-
ing, when the chancellor decreed, that
unless D should on or before, &c. pay
to S a certain sum of money, with in-
terest, &c. the injunction should be
dissolved. D appealed from that de-
cree, and entered into an appeal.
bond, which was not, in point of form,
agreeably to the act of 1713, ch. 4,
but was approved by the chancellor.
On motion of S for a rule on D, to
show cause why an execution should
not issue on the judgment of affirm-
ance, notwithstanding the appeal
from the decree of the chancellor, and
the approval of the appeal bond-
Rule refused. Smith v Dorsey, 261
4. On an appeal from the county court,
relative to a matter of practice, if
there are any rules of practice in that
court, that justify the procedure in
the case, they ought to appear in the
record. Benson v Davis's Adm❜r. 272
5. An appeal does not lie from a mere
practical order of the court of chan-
cery, which is only preparatory to a
final hearing, and by which the rights
of the parties are not effected. Thomp.
son v M Kim et al.
302
6. A decretal order, passed upon the
issue in the cause, in relation to the
subject matter in controversy, and
which settles the question of right be-
tween parties, may be appealed from,
7. Whether an appeal lies in any parti
cular case, is a question to be decid-
ed by the appellate court alone. 16.
8. Where a bill in chancery states that
the defendant received the money
in dispute for the use of the com-
plainants, from the debtor of the
complainants, under a contract be-
tween the debtor and the defendant,
and the defendant in his answer ad-
mits the contract, but denies that the
construction of it is, that he was to
hold the amount received under it
for the complainants, but asserts that
it was so received for his own use,
and the chancellor decides that issue
against the defendant, and passes an
order directing him to bring the mo-
ney into court, he may appeal from
that order.
11. Under the act of 1713, ch. 4, parties
are entitled to an appeal as a matter
of right. An appeal is properly be-
fore the appellate court, where it has
been demanded in the way provided
for by that act, and a transcript of the
record of the proceedings of the in-
ferior court, under the seal of the
clerk of such court, is filed in the
appellate court.
12. The provisions of the act of 1713,
ch. 4, so far as relates to the manner
of prosecuting appeals, have been ex-
tended to appeals from chancery, by
the act of 1729, ch. 3,
Ib.
13. The 2d section of the act of 1713,
ch. 4, does not apply to appeals from
chancery.
Ib.
14. Appeals from the court of chancery
in England, to the House of Lords,
are had without consulting the chan-
cellor,
Ib.
15. The court of chancery of this state
is governed by the principles of the
English court of chancery, so far as
the same are applicable.
Ib.
16. An appeal from the court of chan-
cery in this state does not, per se, sus-
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