Dorsey Hamwond DONE, J. said he had no doubt upon the subject, but Ocr. 1801 as his brethren were absent, and the hour of adjournment had arrived, an opportunity would be afforded in the morning of having the opinion of a full court upon the question. He thought the opinion should not be read to the jury. For what purpose, he asked, is it offered? Not as evidence, it is admitted; and surely nothing but what is evidence should go to the jury. It is not offered as law, being only the opinion of a gentleman, then an attorney of the court. The court of appeals have said the location in this case. is a fact for the jury alone to decide; nothing therefore but what is evidence going to the establishment of the fact can be admitted to the jury. The arguments of counsel are never read to the court or jury as determining what the law is; the question as decided by the court is only relied on. The point was not renewed when the other judges attended; and of course the opinion was not read. Verdict for the defendant. GENERAL COURT, OCTOBER TERM, 1801. GOLDSMITH's Adm'r. vs. PATTISON'S Ex'r. ASSUMPSIT. The plaintiff's intestate had been sheriff to the county of Anne Arundel, and whilst he for officers fees placed in his hands for collecti whom they were was sheriff, sundry officers fees had been placed in his on, unless he has paid the amount hands for collection against the defendant's testator, to the officer to which fees had not been paid. The time allowed by due law, within which sheriffs can execute for fees, having elapsed, this action was brought to recover the amount due from the defendant's testator. General issue pleaded. Shaaff, for the defendant, contended, that the plaintiff, before he could recover, must prove that he or his intestate had paid to the officers the amount of the fees claimed in this action. Johnson, contra. He did not suppose such proof was requisite, as the estate of the plaintiff's intestate, and OCT. 1801 the sureties in his sheriff's bond, were answerable to the officers if the fees have not been paid. Goldsmith VS. A plea of pay. ment may be with CHASE, Ch. J. A sheriff cannot maintain an action for officers fees placed in his hands for collection, unless he has paid to the officers the amount of the fees claimed of the person against whom the action is brought. (a). (a) Vide Ott vs. Chapline, 3 Harr. & M‹Hen. 323. GENERAL COURT, OCTOBER TERM, 1801. DEBT on a writing obligatory. The defendant drawn at the trial pleaded payment, and the cause was put at issue at court for the pur pose of pleading the last term, and notice of trial given. infancy. Johnson, for the defendant, at this term filed an affidavit, and moved the court for permission to withdraw the plea of payment, for the purpose of pleading that the defendant was an infant when he executed the writing obligatory upon which this action is brought. He cited 1 W. Blk. Rep. 357. Mason, for the plaintiffs. THE COURT granted the leave. Proceedings stay ed in an action of ejectment, unless the costs recover. ed in a former tween the same GENERAL COURT, OCTOBER TERM, 1801. BULL'S Lessee vs. SHEREDine. EJECTMENT. Notice of motion by the defendant's counsel at the last term to stay proceedings in this ejectment be- cause, unless the costs of the former ejectment beparties, are paid. tween the parties, and wherein the plaintiff was nonsuited, were paid. THE COURT, at this term, ordered that the proceedings in this cause be stayed unless the costs of the former action of ejectment between the same parties are paid by the second day of the next term. Johnson and Montgomery, for the plaintiff. GENERAL COURT, OCTOBER TERM, 1801. Oct. 1801 BRUNER US. HEDGES. Bruner vs. Hedges. APPEAL from Frederick County Court, from a judg. The county court ment rendered in that court in favour of the plaintiff, has jurisdiction in an action of assumpsit for not delivering a suffi"deli- produced from the cient quantity of flour superfine now appellee. It was an action of assumpsit, and the declaration stated, that the plaintiff, Hedges, vered to the defendant in 1797 and 1798, 313 bushels sent to be ground plaintiff's wheat at the defendants of wheat, for which he received 54 barrels of super-mill, although the damages recover fine flour, and 2 barrels of common, only, whereas he ed were less than ought to have received 63 barrels," &c. By agreement of counsel no advantage was to be taken to the informality of the declaration, and all errors therein were released. The general issue was pleaded, and there was a verdict and judgment for the plaintiff for 8l. 16s. Od. current money, damages, and costs, from which judgment the defendant appealed to this court. Shaaff, for the appellant, contended, that the judgment ought to be reversed, being entered for a sum not within the jurisdiction of the county court, and he read the act of November session 1791, ch. 68, s. 9, directing that the county courts should not hold plea of any debt, &c. (within the jurisdiction given to justices of the peace,) which should not exceed £10 or 1000 lbs. of tobacco; and that this case came within the 10th section of that act, which gives jurisdiction to the justices of the peace in cases of debts, or sums of money or tobacco due on contract, and of damages for the nondelivery of grain, or other articles, con- . tracted to be delivered. J. Dorsey, on the same side. Mason and Nelson, for the Appellee. THE GENERAL COURT affirmed the judgment of the County Court, and the appellant appealed to the Court of Appeals, where the judgment of the General Court was affirmed at November term 1803. Nov. 1801. Worley VS. Walling. The court of chancerywill compel the perfor agreement, admit COURT OF APPEALS, NOV. TERM, 1801. WORLEY, et ux. vs. WALLING, et al. APPEAL from a decree of the court of chancery, mance of a parol dismissing the bill of complaint. The bill states, that ted by the parties the defendant, Walling, had several daughters, all of or clearly proved whom, except Ann, one of the complainants, had and partly carried greatly disobliged him, in consequence of their inter to have been made to have been made into effect But pel a conveyance it will not come marrying with persons whom he disapproved of. where a the That he promised the said Ann, after the death of her long before the marriage of a child, promised if mother, that if she would continue to reside with tiful, and married him, and behave with the prudence and propriety she the child was du with the parent's consent, that up had hitherto observed, and would conduct and ma on such marriage he would convey the child, unless such promise was renewed anterior a tract of land to nage his domestic concerns, and would never marry contrary to his inclinations, he would give and secure to such marriage, to her a tract of land, whereof he was then seised, even though after such marriage the in fee, lying, &c. called Old Fox Deceived, containing child was put in possession of a part of the land, 169 acres. That the said Walling, after the said proimprovements mise, frequently and publicly declared to divers per and erected some thereon. sons, such intention. That in conformity to the wishes of her father, the said Ann did reside with him, and superintend his domestic concerns for several years. That she was addressed by Worley, the other complainant; and with the full and entire approbation of her father, she intermarried with Worley. That in pursuance of his said promise Walling put the complainants in possession of the said tract of land. That they have made extensive improvements, &c. that Walling has since sold parts of the said land to the other defendants, who claim possession, &c. and that Walling hath also brought an action of ejectment for the residue, &c. Prayer for a conveyance in fee, &c. and for an injunction, &c. The answer of Walling states, that three respectable persons were addressing his said daughter Ann, and he admits, that during that time he made a promise, that if she would marry either of them, he would secure to her the said land, but that she refused to marry either of them, and intermarried with Worley, contrary to his wish or consent; and he de Worley Walling nies any other promise. That in order that the com- Nov. 1801. plainants might do something for themselves, he put them in possession of the land, as tenants at will, without paying rent. That they have resided thereon about ten years, and have made some small improvements to the amount of one fourth of what the said land would rent for, during that period. Denies that he ever gave any assurance that he intended the said land for his daughter, other than is before stated, so as to induce the complainants to make the improvements. The answers of the other defendants deny any notice of the claim set up by the complainants, &c. Testimony was taken under commissions, and the cause was argued, &c. HANSON, Chancellor, (May term, 1798.) The statute of frauds and perjuries he has ever considered as a most wise and salutary law, its object being to produce certainty in agreements, and to take care that men, on false suggestions, should not be compelled to perform things which they never stipulated to perform. The zeal indeed of the legislature to prevent in future the impositions which had before been practised, has been thought to have carried them too far. Hence it was, that although the law expressly declared that certain agreements, unless reduced to writ ing, should be void, the court of chancery has nevertheless compelled the performance of agreements, admitted by the parties to have been made, or clearly prov ed to have been made, and partly carried into effect. But in the present case, the alleged agreement between the parties, or rather the promise on a condition which has been performed, has not been proved. Perhaps it might be said, that there can be no agree ment, unless both parties at the time of making it are equally bound. If one man says to another, "do this, and I will do that," is that other to have any indefinite time to determine on the proposition; and if, after years, he shall determine to do this, is he to have it in his power to bind the proposer without any fur |