Volume 11 — Maryland Reports

This is an appeal from an order of the court below, (Krebs, J.,) dissolving an injunction which had been granted upon a bill filed by the appellant against the appellees. The allegations of the bill and answer, and the*roof in the case, are fully stated in the opinion of this court.

James Hooper, in the year 1836, married Anne Simmons, who was then possessed of considerable real and personal property, and, on the 10th of February 1837, the husband executed a deed to Bowen, as trustee, which recites, that “whereas the said James is disposed to invest Ids said wife again with all the property real and personal which he acquired by virtue of his intermarriage with her, so that the same may be for her exclusive use and benefit as though she were a feme…

. Appeal from the Circuit Court for Baltimore city. Under the bill filed in this case, on the 12th of J une 1848, by Frederick J ames Dugan, against his co-devisees and legatees, in the will of Cumberland Dugan, deceased, the complainant claims from the defendants: 1st. The sum of $13,750, mentioned in the fourteenth clause of the will, with interest from the 3rd of December 1836, the date of the grant of administration upon the estate of the deceased. 2nd.

This was a scire facias upon a mechanics’ lien, filed by the appellant against fifty cars or coal hoppers, and against Scott & Bolster and the appellee, the owners or reputed owners thereof, claiming the sum of $>2278.80 for materials furnished and used in the construction of the same. Plea, non assumpsit. Exception.

Assumpsit brought by the appellant against the appellee and another for money paid, laid out and expended by the plaintiff for the defendants, and at their special instance and request.. The appellee, who was alone returned summoned, plead non assumpsit. Exception. The facts of the case, and the defendant’s prayer, to the granting of which, by the court below, (Frick, J.,) the plaintiff excepted, are fully stated in the opinion of this court.

Assumpsit brought by the appellee, as holder, against the appellant, as endorser, of a promissory note for $870.14, dated on tbe 26tb of December 1851, payable at six months to blank order, drawn by one West, and endorsed by the defendant and others. Plea, non assumpsit. 1st Exception.

Assumpsit brought by the appellant, as endorsee, against the appellee and William Rogers, partners, trading under the firm name of “Rogers & Boyd,” as makers of the four several promissory notes mentioned in the opinion of this court. The declaration also contained an insimul computassent count, and the common money counts. The defendants severed in their pleas, each pleading non assumpsit. Exception.

Assumpsit brought by the appellee against the appellant, to recover the sum of $400, for services as physician and apothecary, alleged in the declaration to have been rendered by the plaintiff, at the special instance and request of the defendant, for one William Steinhagan, who bad been severely injured by an accident on the Baltimore Exception.

In this case an injunction was granted upon a bill filed by the appellees, on the 29th of April 1856, restraining the appellant from occupying and using a house which she had purchased, on Frederick… Held: that if the party complaining will sustain a special or peculiar damage, distinct from that done to the public at large, the relief would be granted.

Assumpsit brought by the appellee, as holder, against the appellant, as endorser, of a promissory note for $1257.54, dated October 28th, 1850, drawn by Neale, Armstrong Sp Co., payable at six months to blank order and endorsed by the defendant and others. Plea, non assumpsit. 1st Exception.

The original bill in this case was filed by the appellants, Crook and wife, on the 3rd of April 1854, against the heirs at law of Stewart Brown and Mary Lancaster.

Attachment on judgment sued out by the appellee to affect the property and credits of Turnbull & Co., and laid in the hands of the appellant, as garnishee, who appeared and pleaded nulla bona. The defence relied on was a deed of trust for the benefit of creditors, executed by Turnbull “ Third.

This appeal was taken from an order of the court below (Krebs, J.,) dissolving an injunction upon bill, answer and exhibits.

The bill in this case was filed on the 1st of December 1853, by the appellants, in behalf of themselves and all other creditors of Hannah… Held: amounting, to two or three thousand dollars, when she consented, and the deeds were then drawn by William himself, and he read his own deed to his grandmother, witness holding that to Samuel, and both deeds read alike, except the names of the grantees, and each conveyed one-half of “Newington,” and were executed in presence of…

Assumpsit brought by the appellant against the appellee, on the 12th of October 1855. The declaration contained the common counts, and the plea was non assumpsit. The object of the suit was to recover the amount of a distributive share belonging to Mary G. Hatton, in certain real estate sold by the defendant as trustee, which was assigned to the plaintiff in November 1844, and which the defendant, in ■ 1853, promised to pay to the plaintiff.

The bill in.this case, filed on the 7th of September 1852, by the appellee, against the appellants, alleges that in 1846, Carpenter entered into a written contract of lease with Mrs. Catón, under her signature, to lease of her a tract of land, near Catonsville, containing about ninety acres, particularly described in said contract, now in possession of Charles Z. Lucas, the agent and solicitor of the defendants, and that under this contract he entered into and remains in…

Aureal from the Circuit Court for Baltimore city. The bill in this case, filed by Isaiah Bell, against the admiiiistratrix and heirs at law of Jessee Bell, deceased, alleges, that on the 20th of September 1843, the complainant sold and deeded to his son Jesse Bell, a farm containing about twenty-three acres for $1800, as it was estimated, that is to say, Jesse was to give him $1000 in money, to be paid in instalments, with interest, of $100 a year, till all was paid, and was…

This appeal was taken from an order of the court below, refusing the application of the appellant for a tnandamus to compel the appellee to surrender to him the office of clerk of the circuit court for Prince George’s county.

This is an action of debt brought on the 16th of October 1847, in the name of the State, for the use of the appellant, upon the official bond of the appellee, as sheriff.

This was an action of debt, brought by the State on the 22nd of March 1854, upon an appeal bond, dated the 24th of May 1853, in which the appellants, the defendants below, were sureties for Thomas R. Tongue, the principal obligor.

The bill in this case was filed by the appellant, on the 6th of July 1852, against the appellees, alleging that, on the 20th of August 1842, John Candler recovered a judgment before a justice of the peace, against Fisher, for $41.15, with interest from the 17th of that month, and 83-J- cents costs, and that Fisher being indebted to sundry other persons, in large' sums of mpney, which he was unable to pay, and contriving to deceive and defraud his creditors, and hinder and…

Trespass quare clausum fregit, brought by the appellee against the appellant. The declaration is in the usual form, chaining that the defendant broke and entered the plaintiff’s close, cut up and destroyed and carried away his timber and fence-rails, and with certain cattle eat up, trod down and consumed the grass there growing, and the feet of said cattle rooted up, subverted and destroyed the soil, and other wrongs to the plaintiff then and there did.

Appkal from the Superior Court of Baltimore city. Assumpsit brought by tire appellee against the appellants, to recover the sum of $527.29, with interest, for money paid, in advance, by the plaintiff to the defendants, for freight on goods, contracted to be carried by the defendants from Baltimore to Monrovia, in Liberia. Plea, non-assumpsit. The facts of the case are fully stated in the opinion of this court.

In this case the appellees had filed a petition, under the act of 1853, ch. 220, praying the county commissioners of Baltimore county to open a certain public road. The commissioners, in conformity with the provisions of that act, appointed examiners, who reported in favor of the opening of the road. The appellant, and others, then filed counter-petitions, or objections to the report. These objections were overruled by the commissioners, and the report confirmed.

The original.bill in this case, filed on the 19th of June 1857,. by the appellees, alleges that Hertz Blondheim, from the 17th of November 1856, had been purchasing goods, on a credit of six months, from the complainants, to the amount of $1183.88, of which ho has paid no part, though tho sum of $319.77 thereof is now due; that Blondheim owes large amounts over and above his indebtedness to the complainants, and now represents his liabilities at between $12,000 and $14,000;…

Appkal from the Circuit Court for Baltimore city. The original bill in this case, filed on the 20th of June 1857, by the appellees against the appellants, besides containing the allegations in the original bill, in the preceding case, (ante 365,) makes Rosenberg a party defendant, and alleges that the deed of trust to him, of the 16th of June 1857, together with the previous deed to Goodman, were parts of a scheme devised by Blondheim, to enable him to hinder, delay and…

This appeal was taken from an order of the court below, passed on the 12th of May 1857, rescinding the probate of certain papers, as the last will and testament of James Hawkins, Jr., which had, as alleged, been granted on the 22nd of January 1856, and declaring the same not to be the last will and testament of said Hawkins, and revoking letters testamentary thereon, which had. been issued to the appellant on the 29th of January 1856.

A bill was filed by the appellee against, the appellants, to vacate for fraud as against creditors, a bill of sale of certain personal property made by Heath to Lovejoy. Answers were filed by the defendants, denying the fraud charged, a replication filed, and a commission to take testimony ordered to be issued. The complainant then applied for an order allowing him to examine the defendants as witnesses.

Assumpsit brought by the appellant, on the 23rd of March 1840, against the appellee, as endorser of a promissory note for $3600, drawn by Joseph Kent, payable at sixty days, and dated the 1st of November 183T. Plea, non-assumpsit. At the first trial, in Prince George’s county court, at April term 1842, the counsel for the parties entered into the agreement which is stated in the opinion of this court.

Ejectment brought by the appellant, to recovera small piece of land described on the plats filed in the case, and in the possession of the appellee. There is no dispute as to title, the controversy being whether the land in question is embraced in the tim'd exception, contained in a deed to Carroll from the Union Bank of Maryland, dated the 30th of October 1844.

<p>Appeal from the Equity Side of the Circuit Court for Prince. George’s county.</p> <p>Joseph Kent became administrator de bonis non of Rinaldo Johnson in 1816, and died in 1837, without, as is alleged by the appellant, settling up the estate, and having in his hands money belonging thereto. Nothing further was done in reference to this estate until the 4th of November 1847, when letters of administration de bonis non were duly granted thereon to the appellant. The real estate of Kent had, in the meantime, been sold, under a decree in chancery, for the payment of his debts, and a portion of the proceeds still remaining in court undistributed, the appellant, in July 1850, as he alleges, filed his claim for a dividend, which was resisted by the appellees, other creditors of Kent.</p> <p>The claim thus filed by the appellant, as administrator d. b. n. of Rinaldo Johnson, states, that by the last administration account rendered in the orphans court by Kent, as administrator d. b. n. of said Rinaldo Johnson, there appears a balance due the estate of $2508.14; that on the 17th of January 1820, a bond was executed by John Johnson to Kent, “administrator of Rinaldo Johnson,” for $4700, payable in three yearly instalments, with interest, on which there was paid to Kent, in 1820, the sum of $1100, and for the residue of the debt a judgment was recovered by Kent in 1823, and on this judgment the sum of $4703.04 was paid to him, about the 11th of November 1833. It is for the balance thus appearing to be-due by this administration account, and for the sums so received, upon this bond, that this claim was filed.</p> <p>The defences sot up by the appellees to this claim, are, 1st, that it was not sufficiently proved; 2nd, limitations, lapse of time, and laches; and 3rd, payment by Kent, in his life time, to the distributees of Rinaldo Johnson, of all sums due them from said estate, and full settlement thereof.</p> <p>The court (Grain, J.) passed an order disallowing and rejecting the claim, and from this order the claimant appealed.</p>

Cross-Appeals from the Orphans court for Prince George’s county. These appeals were taken from an order, of the court below, allowing and rejecting certain claims in an administration account. The facts of the case, and the various items of this account allowed and rejected, are sufficiently stated in the opinion of this court, and in the argument of counsel.

This was a case of issues sent from the orphans court to the circuit court for Prince George’s county. These issues were framed under the act of 1831, ch. 315, sec. 12, upon petition filed by the appellant and answered by the appellee.

Trespass on the case brought by the appellant against the appellees, on the 15th of February 1854, to recover damages for certain articles alleged to have been stolen from the plaintiff’s trunk, while in the room occupied by him as a guest in a hotel kept by the defendants in the city of Baltimore. Plea non cul. lsi Exception.

In this case, Triebert, the defendant below, appealed from an order granting an injunction and appointing a receive)-, upon a bill filed against him by Burgess and others, and the latter, the complainants below, appealed from an order directing the receiver to deliver to the defendant all the property taken from him by virtue of the receiver’s appointment, passed on motion of the defendant, after he had filed an appeal bond, upon his appeal from the previous order.

* Appeal from the Equity Side of the Circuit Court for Harford county. The record iu this case shows, that on the 25th of April 1839, Reardon and wife executed a mortgage of certain land, lying in Harford county, to Johns, to secure $2000 lent to Reardon. The grantors lived in Harford county, and the mortgage was acknowledged before two justices of the peace of the city of Baltimore, and recorded in Harford county.

Appear from the, Circuit. Court, for Washington county. This was an action brought on the 3rd of November 1856, by the appellant against the appellees, to recover damages for the alleged wrongful taking and detention by the defendants, of certain personal property belonging to the plaintiff. The pleadings are fully stated in the opinion of this court.

Assumpsit brought by the appellant, as holder, against the appellee, as endorser, of a promissory note for §450, payable at the Farmers Bank, at Easton. Plea, non assumpsit. Exception.

By his will, executed in 1833, William Mann devised to certain trustees all his real estate, in trust, for the following purposes, viz: “In trust that they, the said” trustees, “their heirs and assigns, do and shall pay one-half of the rents, issues and profits arising therefrom, unto such person or persons only, and for such intents and purposes only, as my said niece, Eurydice, by any writing or writings, under her hand and seal, from, time to twie, shall direct or…

<p>Sands or single bills, under seal, payable to the wife, and executed during ■ coverture, unless reduced into possession by the husband during his life, survive to the wife, if living, and if not, pass to her representatives, under the act of 1798, ch. 101, sub-ch. 5, sec. 8, and the husband’s executor cannot maintain a suit on the bonds against the obligors therein.</p> <p>The fact that a suit was instituted on such bonds against the obligors therein, by the executor of the husband, proves that they were not reduced into possession by the husband, at the time of his death.</p> <p>The seal to a bond or single bill, payable to a feme covert, imports consideration as coming from the ohligee, the wife.</p>

Ejectment brought by the appellant, on the 9th of May 1855, to recover certain leasehold property then in the possession of the appellee. Plea, non cut. Exception. The plaintiff gave in evidence certain deeds proving title in John Zell and Alexander Harper, on the 24th of September 1850, on which day they conveyed the property to Thomas W. Vigurs, who took possession thereof.

Appeals from the Criminal Court of Baltimore city. In these cases, each of the appellants was indicted for a violation of the license laws.

<p>In an action for an assault and battery, threats made by the plaintiff against the defendant a month before, and not shown to have been communicated to the defendant prior to, the battery complained of, are not admissible in evidence in mitigation of damages.</p> <p>To make out a case in mitigation of damages, the provocation must be shown to have been so recent and immediate as to induce a presumption that the violence done was committed under the immediate influence of the feelings ' and passions excited by it.</p> <p>In an action for an assault and battery, the plaintiff, with a view to increase bis damages, may give in evidence that he was a laboring man, and had, a wife and children to support.</p> <p>A declaration of the plaintiff, made shortly before the battery, that “he did not consider the defendant alvoays in his right mind,'’ could not be evidence, except as showing provocation because of its irritating character, and, not having been communicated to the defendant, was properly rejected.</p> <p>Where, under the plea of son assault, the defendant gives evidence of a first assault by the plaintiff, the latter may, under the general replication of “de Injuria,” without a new assignment, or replying specially, give proof of, and recover for, an excessive battery.</p>

<p>The defendant’s own declarations in relation to the subject in controversy, not made in the presence of the plaintiff, nor at the time the act was done, so as to constitute part of the res gesta, are not admissible in evidence in his own favor.</p>

<p>A promise to execute a mortgage to secure a debt, without designating or describing the property to be mortgaged, and not even stating whether it was to be real or personal estate, is too vague and indefinite to be enforced by a court of equity.</p> <p>Partnership creditors, before judgments obtained, have no lien on the partnership eileets for the payment of their debts, but the partners themselves have such lien for the discharge of all the partnership debts, and this lien of the partners may, in many cases, be made available for the benefit of creditors.</p> <p>. Partnership effects may be legally transferred, bona fide, fot a valuable consideration, either to one or more of the partners, or to mere strangers, but tvhen the transfers are fraudulent, they cannot impair or injuriously affect the claims of partnership ci editors.</p> <p>tinder the 2nd section of the act of 1835, ch. 380, a partnership creditor may, without first obtaining judgment on his cluim, proceed in equity to vacate any transfer; assignment or contract between the partners disposing of partnership effects among themselves, for fraudulent purposes.</p> <p>Ünder this act, “any creditor or creditors, plaintiff or plaintiffs,” may, without first obtaining judgment on his claim, proceed in equity to vacate “any conveyance, or contract, or othet act, ds fraudulent against creditors."</p> <p>A bill filed by a partnership Creditor, charged that the partnership effects had been misapplied and appropriated to the private purposes of the individual partners, by which the creditors of the firm have been delayed, hindered and defrauded; that the firm is insolvent, and that a dissolution, or pretended dissolution, thereof, and transfer or assignment of the partnership effects were designed, to effectuate the dishonest purpose of defeating creditors, and appropriating such effects to the private purposes of the partners, and that unless they are arrested in the prosecution of this purpose, the complainant will sustain great and irreparable injury. Upon appeal from an order refusing to 'grant an injunction and appoint a receiver on this bill, HeLDS</p> <p>1st. That as the case now stands, the complainant is entitled to have the assignment considered fraudulent and void, and, therefore, should have an injunctionto prevent the partnership effects from being sold or disposed of in any manner prejudicial to his claim, until his rights can be ascertained and settled in the future progress of the case.</p> <p>2nd. Such injunction should embrace all the effects included in the alleged fraudulent transfer or disposition, and which are to be found in the possession or under the control of either or any of the partners, and also any other effects still belonging to the firm, or which may be in the possession or under the control of either or any of the partners, by virtue of any conveyance, or contract, or any other act, not bona fide.</p> <p>3rd. But he is not entitled to an injunction to prevent a disposition of the bona fide separate properly of the partners, and which is not held or claimed by the individual members of the firm, under any fraudulent transfer of property originally owned by the partnership.</p> <p>4th. After the cause is remanded, it will be proper for the court below, at any time after reasonable notice to the defendants, or their solicitor, to appoint a receiver of the effects covered by the injunction, provided it shall ■ fee shown to the court that such a measure is necessary to the ultimate security of the complainant.</p>