The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1860-01-12
LAW TNTELLHENTk..

Milton Whitney, ESQ.,, States Attorney, prosecut
ing Archibald Stirling, Jr., Esq, City Coun-
| sellor.
Nicholas Popplen and others u.s. the Mayor and
| City Council of Baltimore. An appeal from the
proceedings of the Commissioners for opening
| streets, in the mat ter of johnson street.
| Motion to quash the proceedings on the ground
that the oath of the Commissioners, as required to
be taken by the ordinance did not appear properly
upon the records.
T. Yates Walsh, ESQ.,, for the appellant, argued
that although the record contained the oath taken
| by the Commissioners, vet there no attestation
made to it by any magistrate; that the record was
incorrect, and therefore the proceedings were ir-
| regular and should be set aside.
Mr.. Stirling, for the appellee, contended that the
oath taken by the Commissioners and attested by
a magistrate, would appear upon the minutes of
their original proceedings, which were on file in
the Commissioners office.
The book of original entries was produced in
Court by Mr.. Dushane, one of the Street Commis-
sioners, to substantiate the fact submitted BY Mr.
Stirling in evidence.
Mr.. Walsh objected to the book as evidence,
arguing that the records of the Commissioners,
sent to the Mayor and City Council and filed in
the office of the Register, was the only document
which should be considered by the Court.
The Court, after examining the original docket
| of the proceedings of the Commissioners, and the
copy filed in the Registers office, said that the
| original had been made in strict conformity with
the acts of Assembly and ordinances of the city,
| but the copy as filed not, in its opinion, fair
| copy. The meaning and intent of the ordinance
in saying a fair copy should be filed, was that
| correct and exact copy of all the proceedings
| should be made. In this case, the Commissioners
had filed the proceedings in the case, leaving out
the attestaton of the magistrate to the oath taken
by them, which was upon the original entries, and,
therefore, had not filed a fair copy of the proceed
| ings required by the ordinance, which, in the
Courts opinion, invadated the whole proceedings;
the Court, therefore, would sustain the motion of
the appellant to quash the whole proceedings.
Mr. Stirling said he would appeal from the de-
| cision of the Court.
The Judge said he would be very glad if the
counsel would take tup to the Court of Appeals
on writ of error.
Mr.. Stirling remarked that it could be taken
| there without writ of error.
There was nothing else done yesterday, and the
Court at l219 o'clock adjourned until this morning
| at 10 o'clock.
| The Grand Jury returned several bills for keep
ing bawdy houses, and other minor offences.
| SUPERIOR CoURT.-Hon. R. n Martin, Judge
| The following occupied yesterday:
Elisha Warford and others Us. Richard Colvin
| Warford An action of eiectment under the will
| of the late Rachel Colvin Before reported.
The questions of law in this case, which have
been under argument for several days, decid-
| ed yesterday morning. The opinion of the learned
Judge was an elaborate and able one, and was lis
| tened to with much attention 1t is impossible to
| give more than its conclusions:
The plaintiffs sue as hersat-law OF the late
| Rachel Colvin, of this city.
The defendant claims the entire estate, under a
| WILL proved to have been executed by her in due
form, to pass real estate on the 9th of April,
| l848.
He also relies, for the purpose of showing an
outstanding title in other persons than the plain
| tifs, ii the will of '4S is invalid, on two other
wills, one dated the Both Oct, 1e45, and the other
in ls47. That of lS45 is produced and proved; the
other was, to its execution, proved, bat all its
| contents were not proved.
The will of l847 was alleged to have been des-
troyed by Miss Colvin, and that of l845 preserved.
The former had clause of revocation
Thol lido Il
follows:
First.-That testimentary capacity in this State,
requires not only sound and dsposing mind, but
an ability to make valid deed, or contract. That
the latter werds furnished the standard by which
the capacity to devise is to be ascertained
Seeond.-That there may be partial incap city
insanity, and the title be good unless it is the
direct consequence of such incapacity or insanity
Thrd.-That there is no such thing known to
our law as moral insanity as distinguished from
mental.
Fourth.-That probate of will of real estate
is prima acie evidence of every thing necessary to
its validity, and casts the of mpeaching it
| the party contesting.
Fifth.-That subsequent will, containing re-
voking clause operates to revoke, far, that its
after destruction does not of itself revive the first
will.
Sixth.-That whether such revival takes place.
depends on the purpose with which the testator de-
stroys the second, and that question is for the jury.
Seventh.-Thht the presumption in such case is
that the testator intends to revive the first when
that is retained unaltered.
Eighth.-That the plaintiffs sue as heirs-at-
law, and eight of eleven heirs for eight undivd-
| ed elevenths, they must show that there are no
more than eleven, or if more, how many more.
The argument then commenced before the
jury by VIM. H. Norris, Esq, for the plaintiffs,
who has not concluded.
He will be followed by Messrs VIM. Schley and
Reverdy johnson for the defendant, and the argu-
ment will be concluded by VIM. Price, Esq., for
the plaintiffs.
It is probable the case will occupy the Court a
week longer.
CoURT OF COMMON PLEAs.-Hon VIM. H. Mar
| shall, Judge
The following occupied yesterday:
Thomas Seager Us. George Jackson. An appeal
from Justice Hayward Judgment reversed
VIM. Kelly Us. Richard 6'Bren An appeal
from Justice Myers. Appeal dismissed by con-
| sent.
Rebecea Dudley rs. G, Layer. An appeal from
Justice Showacre Judgment reversed by consent,
and Judgment for appellant for So.
J. B. McAbee us. A. E. Rich. An appeal from
Justice Ensor. Appeal dismissed.
Assignment for to-day 80 to SO.
UNITED STATES CIRcUr CoURr.-Hon. VIM. Fell
Giles, Judge. The following occupied yesterday:
Isaac NJ. Singer and William Clark rs. William
| S. Walmesley, agent of Ladd, Webster Co. Be-
fore reported. Examination of witnesses the part
of the defendant continued.
CIRCUIT CoURT FOR BALTIMORE CITY.-Hon. Wm
George Krebs, Judge.
NOtnlng puDllc interest done yesterday.
CIRCUIT CoURr FOR BALTIMORE CouNrY.-Before
Hon. Judge Price.
TowsoNTowN, Jan. II, 1860.
Richard j. Gittings Esq. Attorney for the State,
| prosecuting.
The case of the State u.s. Henry Reever George
| Reever, Ansel Bulman, George Bright and V allen
tine Hillen, Jointly indicted for assaulting Florine
Van Ruth, with intent to kill, the I'd of Novem-
Der last was resumed this morning, and Mrs. Fred
RIGA Reever was put upon the stand for the Defence
and testified that at the time of the shooting all the
prisoners were at her house at supper.
| Several witnesses testified that they would not
| believe Mr.. Smoke on his oath, and one witness
said Smoke told him he would go to Court and
make his dollar per day, which was much easier
than working for it. Other witnesses testified that
they would believe Smoke on his oath, and dsbe-
ieve some of those who swore they would not be-
| lieve him.
1t will be remembered that Smoke was the wit
ness that identified the parties as the same who
fired the pistol.
The case was submitted without argument, and
the jury, after absence Of five minutes, returned
| a verdict OF "not guilty. in all the cases. Mr..
| Grason for the defence.
In the case of the State Us. George Morris and
James Kelly, charged with the larceny of a horse
and buggy, the property of Mr.. Seabright, the
| States Attorney entered plea of not guilty, and
the parties were discharged.
Thomas Stanton plead guilty to selling liquor
on Sunday. Was fined $50 and costs.
The case of Adam Schaeffer, indicted together
| WIN the TWO heeVeTs, Dulman, Bright ana Ot1efs,
for assauting Florine Van Ruth with intent to
| kill removed, at the suggestion of the States
Attorney, to the Hartford county Court-Messrs
John Schaefer and William Wright, of the city,
entering for his appearance in the sum of 81 900.
The case of Edwin Murphy, charged with the
murder of Patterson, was assigned for trial on
Tuesday, and that of VIM. G. Ford for the murder
of police officer Burnham for Thursday.
In the civil case of McGee u.s. Poole 4 Hunt, to
dismiss the appeal, argued on Monday last the
| Court this morning dismissed the case with
| costs.
Charles Logan, indicted for larceny, not answer
ing, forfeited his recognizances.
The of Henry NJ. Fitzhugh, ior shooting
| Paul Placide, assigned for trial on Saturday
next.
The cases of Richard Gragary, Leonard Hoarsey,
Lewis Price and George Cornish, (negroes.) in
dicted for keeping disorderly house, was steed by
| the State.
The case of the State Us. Burnhimer, was as
signed for trial Friday next. Also, the case of
the State Robert Fuller for the same day.
George Wygart, indicted together with George
Crosby, Geo. Connally, Lloyd Williams and Chas.
Ginniman, for assaultng with intent to kill John
Carnan on the 25th of August last, was placed at
the bar for trial, but owing to the absence of two
important witnesses on the part of the Defence the
case was continued to Friday next.
The Court here asked if there any other
business ready, and if there he would
take up the case of assault and battery against
VIM. Lewis Schley, which Mr.. Schley said might
be tried in his absence. The States Attorney re-
marked he could not do that. Mr.. Schley would
have to appear in court, and thought it advisable
to lay rule on the city Sheriff to have Schey and
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