Volume 13 — Maryland Reports

This was a creditors’ bill filed on the 17th of November 1854, by the appellants, two of the sons and heirs at law of Levin Carey, deceased, against the appellees, his administrator and other children and heirs at law, for the sale of the deceased’s real estate, to pay his debts. .

The proceedings in this case were commenced by an attachment on warrant sued out of the court below, on the 4th of June 1853, by the appellees against the appellants, and laid in the hands of Barreda & Brother, of Baltimore, as garnishees. The defendants appeared, gave’bond, and the attachment was dissolved. The plaintiffs then filed their decláration in assumpsit.

Bill by the appellant, against the appellees, for an injunction to restrain the execution of a judgment of condemnation, which George 13, League, one of the appellees, had obtained against the complainant, as garnishee of Luke League.

Trespass on the Case, brought on the 1.0th of May 1855, by the appellant against the appellee, to recover damages for alleged injuries to the plaintiff’s reversionary interest in a certain dwelling-house in the city of Baltimore, by the improper construction of a stable erected by the defendant upon the adjoining lot.

This action was brought on the 11th of August 1857, by the appellee against the appellants upon a replevin bond. On the 17th of July 1855, the Cumberland Coal and Iron Company sued out a writ of replevin, and gave the usual bond, with Jonathan W. Magruder as security on it, to Margaret Tilghman.

Assumpsit brought by the appellants against the appellee, to recover three-fourths of the commissions awarded to the defendant, as trustee for the sale of the real estate of John Folck, deceased. Plea non-assumpsit. Exception. The agreement upon which the action was brought, and all the facts of the case are fully stated in the opinion of this court.

Assumpsit, brought by the appellee against the appellant, a society incorporated under the act of 1852, ch. 231, to recover weekly benefits claimed by the plaintiff to be due him, under certain by-laws of the society of which he was a member, and which the society refused to pay. Plea, non-assumpsit. Exception. The facts of the case are sufficiently stated in the opinion of this court.

This was an action of slander brought by the appellant against the appellee.

This appeal is taken by the appellants, defendants below, from a decree passed upon a bill filed against them and Felix T. Durst., by the appellee. The allegations of the bill and answer, and the proceedings and testimony in the case, are sufficiently stated in the opinion of this court.

This was an action of debt, brought by the appellee against tbe appellant, on the 7th of January 1856. Tbe contract on which the suit was brought, the pleadings, and the reasons for the motion in arrest of judgment, are fully stated in the opinion of this court.

This was an action on the case, brought on the 12th of June 1855, by the appellee against the appellant, as an innkeeper, to recover the value of a trunk and its contents, alleged to have been lost whilst the plaintiff was a guest at the defendant’s inn. Plea, non cul. In the course of the trial, two exceptions were taken by the defendant to the rulings of the court below, (Marshall, J.,) which, with all the facts of the case, are fully stated in the opinion of this court.

Cross-Appeals from the Circuit court for Allegany county This action was brought on the 16th of November 1867, by Wilhelm, an infant, to recover for work and labor performed by him for the defendant Hardman. The declaration contains but one count, and is for work; done and materials furnished. The defendant pleaded several pleas, the most material of which, (the 4th,) sets out an agreement between the parties, and is sufficiently stated in the opinion of this court.

The bill, in this case, was filed by the appellant against the appellees, on the 7th of July 1855. The property in controversy in the case, is a certain house and lot in the city of Baltimore, and it is claimed by the appellant, under the twenty-fifth clause of the will of Cumberland Dugan, executed on the 5th of October 1832, and admitted to probate on the 4th of November 1836, and by the appellees under the twenty-eighth clause of the same will.

Attachment on judgment, issued on the 23rd of October 1854, at the instance of the appellants, by way of execution, against the lands, tenements, goods, chattels and credits of John Falconer and John H. Haskell, the defendants in the judgment, and laid in the hands of William F. Murdock, William H. Norris and George W. Dobbin, as garnishees. The garnishees appeared and plead nulla bona, on which issue was joined. Exception.

Debt, brought on the 13th of September 1855, by the State against the appellee, to recover the penalty imposed by the first section of the act of 1838, ch. 3T5, for the illegal transportation of a slave. Plea, nil debet. Exception.

Assumpsit, brought on. the 7th of January 1854, by the appellee against the appellant, to recover for goods furnished and delivered by the plaintiff to one John S. Cropper.

The bill in this case was filed on the 31st of July 1856, by the appellant against the appellee, for an injunction to restrain execution of two writs of Ji. fa., issued upon two judgments of condemnation in attachments, obtained by the defendant against tbe complainant, as garnishee of one Seibert, before Parsons, a justice of the peace of Baltimore county.

Plea, non-assumpsit, upon was joined. Exception: At the trial the plaintiff proved the making and endorsement, of the note, and the defence relied upon was that of usury.

Debt brought in the name of the State for the use of Basil T. Elder and others, creditors of Richard W. Reaney, an applicant for the benefit of the insolvent laws, against the appellee, upon a bond given by the said applicant conditioned for his appearance before the commissioners of insolvent debtors for the city and county of Baltimore, upon which bond the defendant’s intestate was surety.

<p>As a general rule, a party .should object to the competency of a witness as soon as he is made aware of it, and where the counsel, at the trial, has in his possession the proof of the witness’ interest, he ought not to allow the case to proceed without disclosing the objection.</p> <p>But where testimony was taken under a reservation of the right to object, and though the counsel for the opposite party had in his possession the papers under which the interest of the witness was supposed to arise, yet such interest did not appear till brought out fay the parol evidence, the objection to his competency may be made after the proof is all in.</p> <p>When the interest of a witness depends upon parol proof, clear and uncontradicted, in connection with documentary evidence, it is for the court to decide whether the witness had a disqualifying interest or not.</p> <p>Where the interest is of a doubtful nature, the objection goes to the credit of the witness and not to his competency.</p> <p>A written contract for the building of a house, for a specified sum, was made between the owner and a builder, and then an additional parol agreement was entered into, by which the owner was to pay the hands who did the work. Held:</p> <p>That this verbal agreement was hut a means of carrying the written contract into effect, and was no variation or change of it.</p> <p>Where a witness for the plaintiff is so situated, that in case the verdict is against the defendant, the record would be admissible in an action by the defendant against him, for a breach of contract, and in case the plaintiff failed, his testimony could be offered as his admissions in a suit by the plaintiff against him, he is interested on either side, and therefore a competent witness.</p> <p>Where a contractor agreed with the owner to build a house for him, and employed workmen to do the work, and subsequently the contract was abandoned, and the owner agreed to pay the workmen if they would go on with the work, the contractor is a competent witness for the workmen, to prove such subsequent work and its value.</p> <p>If the party, to whom a promise to pay is made, gives up, in consideration thereof, a demand against his original debtor, the promise is an original undertaking, but there must be an extinguishment of the first debt as a consideration for the new promise.</p> <p>Where workmen were employed by a contractor, and the latter subsequently abandoned his contract, they may continue the work for the owner, and if they do so at his request, he is liable for the work done after such request was made.</p> <p>If a mechanic, working for a contractor, is restrained from filing his claim for a lien, by a promise of the owner to pay him, by which his lien against the property was lost, the owner is liable on such promise, though it be not in writing.</p> <p>A prayer, that if the jury find certain facts therein stated, then the plaintiff is not entitled to recover, “unless” the jury further find certain other facts, confines the plaintiff’s right to a verdict to the hypothesis of the prayer, without reference to the other testimony in the cause.</p> <p>A prayer which denies the plaintiff’s right to recover any part of liis claim, when there was evidence which, if believed by the jury, entitled him to recover a part, is erroneous; prayers are also erroneous if there is no sufficient evidence on which to found them.</p> <p>The time at which, during the progress of a trial, exceptions should be written out and signed, is a matter under the control of the inferior court, and its ruling on that subject cannot be reviewed on appeal.</p>

Appeals from the Equity Side of the Superior Court of Baltimore city.

The bill in this case was filed,on the 17th of July 1858, by the appellee against the appellant, Inspector General of Grain, in and for Baltimore city, for an injunction to restrain-proceedings, then pending before a justice of the peace of the city of Baltimore, which had been instituted in the name of the State, for the use of the defendant as informer, to recover the penalty of ¡¡¡>25, under the 15th section of the act of 1858, ch-.-256.

- This was a proceeding under the lien laws,- in favor of mechanics and others, applicable to Washington county, being the acts of 1842, ch. 183, and 1846, ch. 290. The appellants furnished lumber to the appellee, the builder and contractor, for a certain house built by him for Christian-Winters, the owner, and on the 22nd of April 1856, filed their claim for a lien in accordance with the above laws.

This was an action brought, by the appellee against the appellant. on the 6th of July 1857, for money' payable by the defendant to the plaintiff, for work done and materials furnished, money' paid, and money due on an account stated.

Assumpsit, brought on the 11th of April 1855, by the appellee against the appellant, for work clone and materials furnished by the plaintiff, in and about the construction of certain prill machinery… Held: that the prayer came in time, and then refused to grant the same, and to this refusal the defendant excepted. The verdict was in favor of the plaintiff for $400, and judgment therpon was rendered on the 6th of November 1855.

The bill in this case was filed on the 25th of October 1856; by Wolfinger, a lunatic, and Strite, the committee of his person and estate, against the appellant, and alleges, in substance, that Wolfinger having been, from nativity, of weak and unsound mind, was seized and possessed of about fifty-nine acres of very valuable land situated in Washington county, and of considerable personal estate, but becoming subject to the undue influences and fraudulent impositions of the…

Replevin, brought on the 24th of February 1857, by the appellee against the appellants, for two negro slaves Betty and Nelly. Pleas non-cepit, property in defendants, property in a stranger, and limitations. The case was tried upon issues joined on these pleas, and in the course of the trial five exceptions were taken by the defendants, which, with the facts of the case, are fully stated in the opinion of this court.

Debt, brought on the 30th of June 1856, in the name of the State, for the use of the appellants, as creditors of Albert Metz, an insolvent debtor, against the appellees, administrators of Samuel Etnyre, deceased, upon the bond of the said Samuel, as trustee in insolvency, for the benefit of the creditors of said Metz, dated the 24th of July 1854. The plaintiffs declared upon the bond generally, without assigning breaches.

Assumpsit, brought on the 14.th of October 1853, by the appellee, to recover services alleged to have been rendered by the plaintiff, to M. B. Carroll, deceased, during a number of years. The present trial was had under the procedendo issued by this court, upon the reversal of the judgment on the former appeal, which is reported in 10 Md. Rep., 197. The declaration contains the general indebitatus assumpsit counts, but no technical quantum meruit count.

Attachment' on warrant, issued ori the 6th of March 1857,' at the instance of the appellees, against Israel Russell, a nonresident debtor. The claim stated in the writ is $629.41. The writ, was laid on the 7th of March 1857, on two canal boats, as the property of the defendant Russell.

Ejectment, for part of a tract of land called “Holly Hill Farm,” situate in Anne Arundel county, brought on the 2nd of April 1855, by the appellant against the appellee.

Trespass on the Case, brought on the 26th of August 1852, by the appellee against the appellant, for obstructing a road or right of way over the defendant’s land, from the plaintiff’s mill to his mill-dam, by the side of the mill-race, which, the plaintiff alleged, he was entitled to use for the purpose of repairing said race. The declaration is fully stated in the opinion of this court. Plea, non cul.

Cross-Appeals from the Circuit Court for Baltimore City. John Power, of Baltimore city, died ill 1840, leaving a will, executed on tbe 15th of April 1840, and admitted to probate on the'Sth of July 1840, by which, after directing his debts to be paid, he devised as follows: “1 leave and bequeath to my beloved wife, Ann, the house and lot on the corner of Eutaw and Ross streets, now in fee, during her natural life, and also seven hundred dollars for to support the house, with…

Teresa A. Coomes, of Charles county, by her will, executed in January 1854, and admitted to probate in May 1854, devised, in fee, “'Unto Sally Maria Willett, the farm on which” the testatrix resided, called “Greene’s Inheritance,” containing one hunded and seventy acres, and, in consideration” of this devise, made a charge upon the said Sally of the sum of forty dollars, annually, to be paid unto Nicholas Coomes.” She then bequeathed to the said Sally, certain slaves and…

Ejectment for a lot of ground, forty-one feet front and one hundred and fifty-nine deep, on York street, in the city of Baltimore, being lot No. 17, and part of “Todd’s Range,” brought on the 29th of August 1850, by the appellant against the appellees. Plea No?i Cul. Exception.

On the 15th of February 1856, William Mason and wife, and William Mason, Jr., (the said William Mason and William Mason, Jr., constituting the firm of William Mason & Son,) executed a deed of trust to St. George W. Teackle and William A. Talbott, in which it is recited as follows: Whereas Thomas Wilson and the firm of Thomas Wilson & Co., of which the said Thomas Wilson, Robt.

Attachment on warrant, issued at the instance of the appellant, on the 8th of October 1857, against Francis Dodge and' Alexander H. Dodge, as non-residents, they being residents- and citizens of Georgetown in the District of Columbia, and there trading, under the firm of F. & A. H. Dodge. The-plaintiff’s claim was for $3801.13, due upon two promissory notes, of F. & A. H. Dodge, to her.

Replevin, brought on the 8th of October 1856, by the appellee against the appellant, for the recovery of a lot of pig iron, supposed to be about one hundred tons. Pleas, 1st, non cepitj and 2nd, property in Charles Mantz and Michael Byrne, and not in the plaintiff, to which the latter’replied property in himself, on which issue was joined.

<p>A court of equity will not interfere to restrain execution of a judgment at law, upon the ground that the defendant had been discharged under the insolvent laws prior to its rendition, and that it was not entered subject to such discharge.</p> <p>-The discharge of a party under the insolvent laws releases him from legal liability to pay his debts, yet the moral obligation remains, and is a sufficient consideration for a new promise to pay them, and fully sustains . unconditional judgments against him. ,</p> <p>If, through fraud, accident or mistake, a judgment is entered against a party for an amount, or in terms, different from those intended, a court . of equity will, upon full proof thereof, reform and correct it.</p> <p>Where relief is asked on the ground of of accident or mistake alone, there must be clear, explicit and conclusive proof of the mistake to justify .the interference of a court of equity.</p>