Commencement of Suit-Judgment-Execution-Superse


The first term after institution of suit, is the appearance term; the next (six months thereafter) the imparlance term; at which latter, judgment is entered up by default, upon all liquidated demands (such as notes, bonds, &c., not requiring the inquisition of a jury to ascertain the amount due,) in case there is no appearance by attorney for the defendant; but if there be an appearance by attorney, then the case is continued to the next term, (six months thereafter,) when the case is regularly triable, and can only be continued by mutual consent, or adequate cause shown.

After the expiration of ten days from the adjournment of the term at' which judgment is obtained, and within a year and a day after the rendition of the judgment, execution may issue, and if returned nulla bona, is renewable every year from the rendition of the judgment. (3 Cranch C't C't R. 323.)

The judgment and execution may be superseded, or stayed at any time within sixty days after its rendition, by the defendant giving good and approved security for the debt and costs, payable at the end of six months after such supersedeas. If execution has not issued within a year and a day from the rendition of the judgment, it (judgment) may be revived by sci. fa.

Of Justices of the Peace-their Jurisdiction, Powers, &c.

Justices of the Peace have summary jurisdiction in cases of debt, account and contract, express or implied, where the amount or value in controversy, including damages, does not exceed fifty dollars, exclusive of costs; but they can take no cognizance of any action of tort, or trespass, upon any person or property, or any action sounding in damages merely. A justices' judgment constitutes no lien upon real estate. Where the debt or demand exceeds twenty dollars, either party may demand a trial by jury, and from such trial by jnry there is no appeal. Either party may appeal to the Circuit Court from the Justices' judgment, in case the same be for more than five dollars, exclusive of costs, except as before stated, in case of jury trial.

The defendant may stay or supersede execution at any time within sixty days after the rendition of the judgment,


by giving approved surety for the debt and costs, payable at the end of six months from the rendition of the judgNo appeal lies after the judgment has been superseded. Justices have jurisdiction against executors and administrators, where the amount in controversy does not exceed fifty dollars, exclusive of costs. A note or debt of fifty dollars upon which the smallest particle of interest is due, cannot be recovered before a Justice. (Act of Congress, 1823, 3 Stat. at Large, 743. 2 Cranch, C't C't R. 629. 5 Cranch, c. c. R. 509.)

A plaintiff may relinquish interest upon an open account, and bring his action for the principal sum only before a Justice, if the principal does not exceed the sum of fifty dollars, although, with interest, the debt would exceed that sum. (5 Cranch, C't C't R. 505.)

Of Attachment.

If the debtor, whether a resident or non-resident, so abscond, or secrete himself, that the ordinary process of law cannot be served upon him, the creditor, whether resident or non-resident, or some person for him, may make oath of the amount due, and obtain an attachment against the lands, tenements, goods, chattels and credits of the defendant; but "corn for necessary maintenance, bedding, gun, axe, pot, and laborer's necessary tools, and such like household implements, and ammunition for subsistence," are exempt from attachment. And if the defendant should not appear in person, or by attorney, within a year and a day from the awarding of the attachment, the lands, goods, chattels, &c., attached, shall be condemned and sold. The plaintiff must prove his debt before condemnation. A mere equitable interest in lands is not liable to attachment. (Act of Maryland, 1715, c. 40. Act of Maryland, 1795, c. 56. 3 Cranch, C't C't R. 331.)

Quere. Whether equitable interests, other than those in lands, are liable to attachment? We incline to the negative of the proposition.

Effect of Judgment and Execution upon Property.

A judgment constitutes a lien upon real estate, from the moment of its rendition, but does not bind personal property until execution is issued and lodged in the hands of the Marshal.

What may be Taken in Execution and what not.

Whatever may be assigned and granted, may be taken in execution. Nothing can be taken in execution that cannot be sold. Bank notes cannot be taken in execution, because they are of the nature of choses in action. (Ca. Temp. Hard. 53.) Money may be taken in execution, if in the possession of the defendant, but cannot be taken from his person. (1 Cranch, 117.) Goods pawned shall not be taken in execution, for the debt of him who pawned them, during the time they are pawned. (Com. Dig. title Ex. c. 4.) Mere equitable interests are not liable to execution.

Of Property Exempt from Execution.

Corn for necessary maintenance; gun, axe, pot, beds, bedding not exceeding one bed, and the bedding thereof, for every two persons belonging to the family; wearing apparel; one cow, together with the tools and implements of defendant's trade, are exempt from execution, and for rent. (Act of Maryland, 1715, c. 40. Act of Congress, March 1, 1823, 3 Stat. at Large, 746.) There is no homestead exemption.

Of the Limitation of Actions.

All actions of account upon simple contract, notes and instruments not under seal, detinue and replevin, trespass, and trespass quare clausum fregit, must be commenced within three years after the accruing of such cause of action; and actions on the case for words, actions of trespass for assault, wounding and imprisonment, within one year from the time the cause of such actions accrued; and any person entitled to any of such actions, who shall at the time of the cause of any such action accruing, be within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the limits of the District of Columbia, such person may bring such action within three years after the removal of such impediment, or coming to full age, sound memory, at large, release from coverture, or returned, or arrived within the limits of said District.

No bill, bond, judgment, recognizance, or other specialty, or sealed instrument, is good, pleadable, or admissable in evidence of any debt, claim, or demand, after the principal debtor and creditor have been dead twelve years, or the debt.

or thing in action above twelve years' standing; saving to all persons under the impediments of infancy, coverture, insanity, imprisonment, or being beyond the limits of the District, the full benefit of all such bills, bonds, judgments, etc., &c., for the space of five years after the removal of such impediments. (Act of Maryland, 1715, c. 23. 1 Cranch, C't C't R. 475, 2 Cranch C't C't R. 112.)

But a judgment may be revived by scire facias, at any time within twelve years after the rendition, and such scire facias may be renewed from time to time, and the judgment thereby kept in full force as long as the plaintiff, his heirs, executors, administrators, or assigns, may desire. (5 Cranch, C't C't R. 1.)

Actions of ejectment for the recovery of real property, must be brought within twenty years after the cause of action accrued, unless the party is under some of the legal disabilities above mentioned; and then in ten years after such legal disability is removed.

Of Insolvency.

There is, practically, no insolvent law, or act of insolvency of force, except in regard to corporation fines.

Orphans' Court-Its Powers, Jurisdiction, &c.

This Court is empowered to bind out as apprentices, orphan children, the profits of whose estates are not sufficient for their maintenance, children suffering through the extreme indigence of their parents, the children of beggars, illegitimate children, and the children of persons out of the District, where a sufficient maintenance is not afforded. (Act of Maryland, 1793, c. 45.)

This Court has jurisdiction for the probate of wills, granting letters testamentary and of administration, directing the conduct and settling the accounts of executors and administrators, securing the rights of legatees and orphans, superintending the distribution of the estates of intestates, and administering justice in all matters relative to the affairs of deceased persons, according to law.

This Court is empowered to appoint guardians, and to examine, hear and decree upon all accounts, claims and demands between wards and their guardians, and between legatees, or persons entitled to a distributive part of an intestate's estate, and executors and administrators. (Act of

Maryland, 1798, No. 101, c. 15.) An appeal lies from this Court to the Circuit Court of this District.

Of the Rights of Married Women.

The rights of married women remain as at common law. During marriage the being, or legal existence of the woman is suspended; or at least incorporated and consolidated into that of the husband. (1 Black. Com., 442.)

She cannot acquire, hold, or enjoy property in her sole or exclusive right or name, but may by the intervention of a


The wife is dowable, i. e., entitled to one third of all the lands and tenements in fee simple, fee tail general, or as heir in special tail, of which her deceased husband was seized, either in deed, or in law, even for an instant at any time during the coverture. (7 Greenl. 383.)

And the widow shall be endowed of real estate of which the husband was beneficially seized for his own use, though for an instant of time only. But the widow is not entitled to dower in any lands to which her husband had only an equitable title. (2 Cranch, C't C't R. 673.)

Of Interest and Usury.

All notes, bonds, contracts, &c., for more than six per cent. interest, are void; and every person charging, or taking, directly or indirectly, more than six per cent interest, shall forfeit treble the amount so lent or contracted; one half to go to the United States, and the other half to any person who shall sue for it. (Act of Maryland, Sept., 1704, c. 69.)

The validity of the contract, or claim, in regard to interest, or usury, is to be decided by the law of the place where the contract is made. If valid there, it is valid every where; and vice versa, if void or illegal there, it is void every where. (Story, Confl. of Laws, 242.)

A note payable in specified bank notes, with ten, twenty, or any amount of interest, is not usurious, although there is no evidence that the bank notes are worth less than their nominal value. (Stevenson vs. Unkefer, 14 Ill. R. 103, 4 Wend. 679.)

The owner of a note not originally tainted with usury, may sell it at as great a discount as he pleases, without making the transaction usurious. (7. Wend. 569.)

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