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deed from the said William Peddicoart, and Sophia his wife, did not bar the plaintiff from his recovery in this action.

Martin, (Attorney General,) for the Plaintiff.
Ridgely and Shaaff, for the Defendant.

CHASE, Ch. J.(a). The court are of opinion, that the deed from William Peddico art, and Sophia his wife, to the defendant, does not bar the plaintiff in this case; and they direct the jury accordingly. The defendant excepted.

Verdict and judgment for the plaintiff. The defendant brought a writ of error, but nonprossed it at November term 1804.

(a) Duvall, J. concurred.

MAY 1802

Peddicoart

VS

Rigges

GENERAL COURT, MAY TERM, 1802.

CHENEY'S

CHENEY'S Lessee vs. WATKINS.

EJECTMENT.

The defendant had taken defence

warrant at a preceding term, and the lands were cated on the plots returned in the cause.

on

Defence on a warrant may be changed to gene.

10- ral defence on the

Johnson moved for leave to change the defence on warrant, to that of general defence.

THE COURT. Let the defence be changed, upon the defendant's paying the costs of the present sur

vey.

defendant's paying the costs of the survey

GENERAL COURT, MAY TERM, 1802.

NORWOOD VS. SHIPLEY.

TRESPASS Q. C. F. Plots made and returned.

recover an action of trespass must show title or that he was in the

THE COURT in this cause determined that the plain- The plaintiff to tiff must show title to the land on which he charges the trespass to be committed, or he must show that he was in the actual possession of the place where the

actual possession &c. when, &c.

of the place where

MAY 1802 trespass was committed, at the time when it was com

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mitted.

Ridgely, Mason and Shaaff, for Plaintiff.

Martin, (Attorney General,) and W. Dorsey, for

Defendant.

if one party gets

a commission to

GENERAL COURT, MAY TERM, 1802.

NORWOOD'S Lessee vs. OwINGS.

EJECTMENT.

The defendant at the preceding

take testimony on term obtained a commission to London for the pur

the terms that

whether it be re.

turned or not the pose of taking testimony, upon the terms that if the

cause shall not, on

that account, be commission was not returned at the present term it

continued at the

ensuing term; yet should be no cause for

if it be returned

continuance of the action.

executed at the At the present term the commission was returned,

ensuing term, the

adverse party has with testimony taken thereunder; and on motion of

a right to a continuance till he has time to examine the testimony, that he may

the plaintiff's counsel,

have an opportu THE COURT directed the action to be continued,

nity of disproving

it if he thinks ne on the ground that the commission and testimony

cessary.

having been returned at this term, the opposite party should have time to examine the testimony, and if he thought proper, to endeavour to counteract it. That although the defendant was not entitled to a continuance, agreeably to the terms under which the commission was granted, yet the plaintiff was.

Ridgely, Mason and Johnson, for Plaintiff.

Martin, (Attorney General,) Key and Shaaff, for Defendant.

If A purchases

stills of B & pays

him the purchase

GENERAL COURT, MAY TERM, 1802.

KIRWAN US. RABORG.

ASSUMPSIT for money had and received. The evi

money, and B af- dence was, that the plaintiff bought of the defendant

terwards takes the

stills in possession certain stills, for which he paid him 400 dollars. That

the proper reme

dy is trover, and A cannot support assumpsit sgainst B to recover back the purchase money On paying costs a party may amend from assumpsit to trover

the defendant afterwards took possession of the same stills, and then had them in his possession. This action was to recover back the money paid.

Scott, for the defendant, objected to the form of action.

THE COURT. The action is not well brought, it should be trover.

Harper, for the plaintiff, had leave to amend, on paying the whole costs which had accrued in the action down to and including the present term.

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GENERAL COURT, MAY TERM, 1802.

WILSON VS. BOYER.

of

mo

A guardian has

no right to retain money received by

him from the exe

cutor unless the

sed a final account

with the orphans

court, and an or der had been pass

ed by that court to pay over such mo

ASSUMPSIT for money lent. It appeared in evidence at the trial, that the plaintiff was executrix her deceased husband, and the defendant was guar- executor has pas dian to the children of the deceased. The defence set up was, that the guardian had received the ney, for which the action was brought, from the plaintiff as executrix, and that he had a right to retain it as guardian to the children. No settlement of any account in the orphans court by the executrix was proved.

Boyd, for the plaintiff, prayed the court to direct the jury, that unless the defendant could prove that the plaintiff had settled a final account with the orphans court, and there was a balance in her hands as executrix, and an order from the orphans court to pay it over to the defendant as guardian, he had no right to withhold the money.

THE COURT gave the direction accordingly.

Brice and M Mechen, for the defendant.

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Where a grant of land contained

the following de

GENERAL COURT, MAY TERM, 1802.

KIRKPATRICK's Lessee vs. KYGER.

EJECTMENT for a tract of land called Dickson's

scriptions, begin- Pleasure, lying in Washington county. The defen

ning at a bounded

white oak stand dant took defence on warrant, and plots were return

ing about 20 per ches on the E side of Anteeatum, running thence N, &e (twelve courses), then S. 84 de

ed.

At the trial the plaintiff offered in evidence the cergrees W 243 per- tificate of the land called Dickson's Pleasure, survey73 perches on the ed the 1st of March 1760, and a grant thereof to

ches, to the end of

fourth line of Good

Luck, then with Michael Kirkpatrick, dated the 7th of October 1760,

said land reversed

S. 2 degrees W.73

perches, S. 82 de describing the same as "beginning at a bounded ches. N. 58 de- white oak, standing about 20 perches on the east side

grees W. 46 per

grees W 75 _per

degrees W 20 per

ches, then $ 73 of Anteeatum, running thence N." &c. &c. the thirches, &e Held, teenth course is "S. 84° W. 243 perches, to the end

that the true loca

was to run the of 73 perches on the fourth line of Good Luck, then grees W. 73 per- with said land reversed S. 28° W. 73 perches, S.

course 5. 28 de

ches, reversed with

course and dis

tance

to the expressions in the grant

Good Luck, then 820 W. 46 perches, N. 58° W. 75 perches, then S. 73° cording W. 20 perches," &c. &c. The tract of land called Good Luck was surveyed the 20th of September 1742, for Daniel Dulany, and granted to Jacob Funk on the 28th of February 1753, beginning at a bounded white oak standing on the west side of Antecatum, within 10 perches thereof, and running N. 30° E. 84 perches, then N. 73° E. 54 perches, then S. 140 perches, and then by a straight line to the beginning tree, containing 50 acres.

Shauff, for the defendant, contended, that the plaintiff had not located Dickson's Pleasure on the plots, according to the grant. That the defendant bad counterlocated the plaintiff's location. The expression in the grant is S. 82° W. 46 perches, and the line cannot be elongated, whereas the plaintiff has located it N. 121 perches. The true meaning of the grant is to reverse only one line of Good Luck; and if it is reversed, the length of line cannot be exceeded. There is no call in the grant to authorise the extension of the line. As there is a variance between the grant and the location on the plots, the plaintiff must fail to recover. evidence does not support his location.

His

Mason and J. Buchanan, for the plaintiff, contended, that there was a call in the grant of Dickson's Pleasure which must be gratified. That the line must continue to run with the land two courses, which will spend the number of perches. That all the locations on the plots were admitted, but Dickson's Pleasure, and that the expressions used in the grant of that land, must be gratified.

CHASE, Ch. J. The court are of opinion that the true construction of the grant of Dickson's Pleasure is to run the course Š. 28° W.73 perches reversed with Good Luck, then course and distance according to the expressions in the grant.

A jaror was then withdrawn, and leave given to amend the plots, on payment of the costs of the term.

MAY 1802

Kirkpatrick

Kyger

GENERAL COURT, MAY TERM, 1802.

RINGGOLD'S Lessee vs. MALOTT.

EJECTMENT for a tract of land called The Num

The time when a manor was laid

out is a matter of there being no re

being

fact for the jury,

and

cord thereof to be found

de

The opinion of

der of Four, situate in Washington county, and
a part of the reserve around Conegocheige Manor,
containing 481 acres. Plea general issue, and
fence upon warrant, Plots were returned.

the judge of the land office cannot conclude the par

The plaintiff at the trial to make title to the land ties as to a questi

to

on of law or fact.

general

The
court has a con-
current jurisdicti

Propri- on with the judge
..May

Lordship

in the declaration mentioned, produced and read
the jury the order for reserving for the Lord
etary a manor of 10.000 acres of land, viz.
28, 1724. Whereas in the behalf of his
the Lord Proprietary of this province, you are
required to reserve for his lordship's use the
tity of ten thousand acres of land, in places within

of the land-office as to the extent & operation of in

terfering grants:

hereby

quan

the

be

and it is the pecuhar province of

the jury to decide

facts

The relation of

a grant to the cer

tificate of survey

so as to over reach

mesne grants, is

founded on a prin

ciple of equity, &

is a fiction of law. An attempt to

the county as you shall be directed to lay out same, and within such metes and bounds as may most profitable to his lordship; and return your certificate of survey thereof into his lordship's land of- ry's reserve was a

take up land with

in the proprieta

fraud, & no qui

acquired in the

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fice, with all convenient speed, thence to be trans- table interest was mitted to the examiner general for due examination; land so taken up. and for your so doing, this shall be your warrant. Given under his lordship's lesser scal at arms, 28th day of May, anno dom. 1724.

proprietary as to all lands be ong

this ing to him at the

time of the act of confiscation

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