INTRODUCTION cxiii

As to actual practice, in case an appeal was taken to the Provincial Court an
entry was made in the Liber to the effect that the party taking the appeal, in his
own person or by his attorney, "came and appealed to the Provincial Court." A
description of the recognizance required by law was then entered in the Liber. In
the case of a writ of error the party suing out the writ presumably would make
application to the Keeper of the Seal, and then present the writ to the county
court. The exact procedure in this respect is not clear since no use of writs of
error appears in the Liber. Although attaint received statutory recognition, no
resort to such procedure is found in the Liber.

In all only four appeals to the Provincial Court appear in the Liber. In Lowe v.
Marsham et ux., Tracey v. Garrett, and Davis v. Garrett, all tried by juries, al-
though security was given in each case for due prosecution of the appeal, only
reference to the Lowe case appears in the records of the Provincial Court. In
that case, involving an action for damages suffered in connection with the loan
of a horse, the Provincial Court reversed and set aside the judgment for defendant
administrators in Prince Georges County Court. In the reasons for appeal it was
asserted that said court had no jurisdiction over the matter, removed from Calvert
County Court by defendants, residents of Prince Georges County, in that by
virtue of the division of counties, attendant upon the establishment of Prince
Georges County, the locus of the transaction and the residence of the plaintiff
and most of the witnesses became part of St. Marys County. The witnesses as
residents of such county could not be compelled to testify by process of Prince
Georges County Court and thus the verdict went against plaintiff.103

In Ryley v. Sewell, an action of trespass on the case tried at the January 1697/8
court for the balance of an account, an appeal was taken by defendant from a
judgment of the court, which tried the action following a plea of the general
issue, for 1810 pounds of tobacco and costs and charges.104 On appeal the de-
fendant set forth several reasons of appeal:105

1. Plaintiff had brought an action of indebitatus assumpsit against the de-
fendant for a sum supposed to be due on the balance of an account for work
done. Defendant asserted that no such action could lie against him but an insimul
computassent or a quantum meruit for the balance of the supposed account, it
appearing plainly by the plaintiff's own showing in his account annexed to the
declaration it was for work done and therefore a quantum meruit and not an
indebitatus assumpsit.

2. According to the rules of the common law all counts, declarations and
pleadings ought to be certain and to contain verity and truth which this did not.
First, it was said in the declaration that the assumpsit was made the 23 of March
1697, whereas in truth, if any such assumpsit was made, it must have been in
the year 1689. Plaintiff since that time had never done any work for defendant
so he was barred by the Act of Limitation. Secondly, the account annexed to the
declaration had no day or month mentioned in it, as it ought to have. Thirdly,
the plaintiff's oath annexed to the declaration to prove the assumpsit was dated
"March 23, 1696".

3. The issue joined was assumpsit or nonassumpsit which was matter of fact
and could not be tried by the court but according to the several rules of the
common law must be tried by a jury of twelve men, for the judges are judges of

103. Infra 73-75, 235-40; PCJ, Liber IL, 121-22. The reasons for appeal appear inconsistent with
the provisions of the statute establishing Prince Georges County. See 19 MA 212-15.

104. Infra 318-19.

105. PCJ, Liber IL, 122-23.