Volume 14 — Maryland Reports

Appeal' from life Equity Side of the Circuit Court fot Charleé County.

The appellant and appellee were joint-executors of the will of their father Peter Hesson, and on the 29th of March 1858, a citation was issued from the orphans court requiring them to appear and settle an account of the estate.

This is an appeal from an order of the court below, in the matter of the application of Edward Higgins for the benefit of the insolvent laws. Higgins made bis application on the 30th of March 1858, but filed no schedule of debts due him, or list of his debtors, and did not refer to any such debts or debtors, except in these words, on the fust page of his papers, viz: “Debts due me amount to about 31500, in hands of trustee for benefit of mv creditors.

Edmund J. Webb executed a deed to the appellant, as trustee, for the benefit of his creditors, dated the 9th of December 1857.

The appeal in this case was taken from an order of the court below, dismissing the petition of the appellants. The only question in the case, arises upon the construction of the will of Sarah Brown, which, with the facts of the case, is fully stated in the opinion of this court.

This appeal was taken from two orders passed by B. H. Hanson, Register of Wilis for Harford county, in the recess of the Orphans Court. The facts of the case are fully stated in the opinion of this court.

This appeal is from an order granting an injunction to restrain execution of a judgment, upon a bill filed on the 19th of February 1859, by the appellee, against the appellant.

This appeal is taken from a decision of the court below (Crain, J.) refusing to order a writ of habere facias possessionem. The facts are sufficiently stated in the opinion of this court. The cause was argued before Le Grand, C. J., Eccleston and Tuck, J., by Robt.

The appellees filed a petition for freedom on the 18th of August 1857, against the appellant, which was dismissed on the 13th of November following, and on the 2lst of October 1858, they filed a second petition against the same party.

The case made by the bill and exhibits is this: On the 21st of February 1853, the complainant purchased from the defendant Charlotte Gayle, (then Charlotte Tipton,) a farm in Baltimore county, containing eighty-eight acres, for $5544, payable one-third in cash, one-third in four years, and the balance at the death of Mrs. Ann Hill. This sale was evidenced by a written receipt of the said Charlotte, which, after acknowledging the receipt through Geo.

Mary’s County. Assumpsit for money had and received, brought by the appellee on the 31st of July 1848, against the appellant, to recover the sum of $500, with interest, which had been paid by Wood, the plaintiff’s intestate, to the defendant, on the 31st of December 1845, under a contract for the purchase of land. The present, trial was had under Ú\e procedendo issued by this court upon the reversal of the judgment on the former appeal, reported in 6 Md. Rep., 142.

This appeal is from an. order in reference to letters of administration d. b. n., c. t. a. upon the estate of Henry Cover, deceased. The record shows, that Henry Cover died in 1857, leaving a will, by which he devised to his wife, all his estate, real and personal, for life, and at her death the same to be sold by his executor, and the proceeds to be equally divided between his son, Josiah S. Cover, his daughter, Susan Conaway, and his grand-daughter, Hannah Spurrier.

■ Debt, brought on the 22nd of November 1855, by the State against the appellees, upon a bond executed by them and two other parties as joint obligors, and dated the 12th of Janur ary 1841. The penalty of this bond is “twenty-six thousand, six hundred and sixty-six cents and two-thirds of a cent,” and is conditioned for the faithful performance by Wheeler of the duties of sheriff of Charles county.

Petition for freedom filed on the 5th of May 1856, by negro Lucinda, in behalf of herself and her seven children, William, George, Juliet, John, Charles, Robert and Jane, against the appellee.

'Petition for freedom, filed on the 7th pf Afay 1857, by jhe appellees, against the appellant.

Appeal, from the Circuit Court for Calvert County. Petition for freedom, filed on the 5th of May 1856, by the appellees against the appellant. The petition states, that the petitioners claim their freedom under the will of Mary Reynolds, which was filed therewith.

Ejectment brought on the 16th of July 1852, by the appellants, against the appellee, for a tract of land called “Pennyrine,” containing two hundred acres. Plea, non cut. 1st Exception.

Error, to the Circuit Court for Frederick County. The plaintiff in error was indicted for obtaining goods under false pretences. The indictment described her as a ‘ free negress,” and she pleaded not guilty.

This appeal is taken from an order granting an injunction Upon a bill filed by the appellee against the appellants.

The decree from which this appeal was taken, and the proceedings in reference to the appeal, are full}'- stated in the opinion of this court. The other facts necessary to be stated are briefly these: The appellant, Eliza Ward, with others, on the 15th of February 1851, mortgaged certain real estate, in the city of .Baltimore, to F. A. Sumner to secure the payment of f5000, the said Eliza being the owner of one undivided third thereof.

This appeal is from an order dismissing the petition of the appellants, asking for the grant of letters of administration, upon the personal estate of James D. Barrett, deceased. The appellants allege, that the deceased left, at the time of his death, two negro slaves, Charlotte and Nelly, who have since had children, and they aver, thatthese are a part of his estate.

This is a mechanics lien ease. The claim filed by the appellants was for painting and glazing done by them upon a house. The proceedings prior to the trial are fully stated in the opinion of this court. 1st Exception.

The plaintiff in error was indicted for giving liquor to a1 minor in violation of the Act of 1858, ch. 55. To the indictment he filed a general demurrer, which was overruled. He then pleaded non cut, and the jury having rendered a verdict of guilty, he moved in arrest of judgment upon several grounds,, which, with the indictment, are fully set out in the opinion of this court.

This appeal was taken from an order of the court below, (Constable, J.,) passed in 1854. The facts of the case are fully stated in the opinion of this court.

This was an application made, on the 22nd of July 1858,-by the appellant, for a rule upon the appellee to show cause' why a mandamus should not issue, commanding him to deliver up to the appellant, the office of justice of the peace foL the third election district of Cecil count}7, and the docket and papers of William Hanes, deceased,- the former justice for said-district.

Cross-Appeals from the Superior Court, of Baltimore City. . Trespass on the case, brought on the 26th of August 1854, by Brannan against the Mayor and City Council of Baltimore, to recover damages for injuries sustained by him, in falling into a hole, which bad been dug in the limits of the Bel Air markét. The declaration in some of its counts alleges, that the plaintiff while lawfully passing along a certain public and common highway in the city of Baltimore, which was…

Parrish. The writ is as follows : “ Carroll County, set: The State of Maryland to the sheriff of Carroll County, greeting:—Whereas, at a Circuit Court for Frederick county, begun and held at the court-house in and for the county of Frederick, on the second Monday of February, in the year 1855, before the honorable Madison Nelson, judge of the third judicial circuit of the State of Maryland, a certain Eli Y. Parrish, late of Frederick county, acknowledged himself to owe and…

Replevin, brought on the 5th of July 1855, by the appellee against the appellant, for “five horses, five horse-carts, two sets of single harness, one stone wagon, three cranes, one lot of quarry tools, and one lot of quarry fixtures.” The defendant avowed the taking under a distress for rent.

The bill in this case, filed on the 28th of September 1855, by Catharine McKenna, a feme covert, in her own name, alleges that she has been for several months, with her own capital and by the credit and kindness of her own friends, in her own name, and as a feme sole, carrying on a grocery business in a store at the comer of North and Baltimore streets, in the city of Baltimore; that by virtue of a fieri facias, issued upon a judgment for $613.83, against Peter McKenna, her…

The bill in this case, filed on the 17th of November 1855, by the Bank of Commerce against the appellants, alleges that Francis M. and Henry F. Baughman were owners of sixty, and Jacob F. Kridler of thirty-two, shares of its capital stock; that the defendant, Fisher, on the 4th of December 1854, presented to the cashier of the bank a power of attorney from the Baughmans, accompanied by the certificate for the stock for the transfer to the defendant, Reese, of forty shares of…

Covenant upon a policy of insurance under seal, brought on the 7th of January 1854, by the appellees against the appellant. Plea, non infregit, with leave to introduce any matter of defence which might be pleaded or given in evidence under any other plea. Exception.

The bill in this case, filed in the court of chancery, on the 15th of February 1849, by the appellants, against the appellee and one Chew Schnebly, alleges, that a writ de lunático inquirendo issued out of the court of chancery, under which, on inquisition taken on the 9th of June 1845, the complainant, Lowman Chew, was found to be a lunatic without lucid intervals, and to have been in the same state of lunacy from his nativity; that under these proceedings the complainant,…

Assumpsit, brought on the 11th of May 1855, by the appellants, as holders, against, the appellee, as endorser of a promissory note for $5000, drawn by H. S. Ward & Co., dated “Baltimore, May 18th, 1854,” at four months, payable to the order of the defendant, and by him endorsed. Plea, non-assumpsit. Isi Exception. The plaintiffs offered in evidence the note and protest, having proved the defendant’s endorsement of it.

Appeals from the Circuit Court for Baltimore City. The records in these appeals show, that on the 28th of March 1854, Tracy filed, in the court below, a hill against Benson and the Barredas, alleging, among other things, that Benson had agreed to pay Tracy one dollar per ton on all guano which might be imported into the United States by Benson, and praying that the Barredas might be enjoined from paying over to Benson certaip funds in their hands, until this claim of Tracy,…

This appeal is from an order granting an injunction and appointing a receiver upon a bill filed by the appellee against the appellant on the 16th of April 1857.

Debt, brought on the loth of March 1S58, by the appellee against Strawbridge and bis sureties, upon a bond given to the plaintiff.

Debt brought on the 3rd of April 1854, by the State against William Billingsley and his sureties, on a collector’s bond, dated the 8th of July 1851, in the penalty of $3,400, and conditioned, “that if the above bound William Billingsley shall well and faithfully execute his office as collector of the State tax of Calvert county in District No. 2, and shall well and faithfully account for and pay over to the Treasurer of the Western Shore of Maryland the several sums of money…

This appeal is from au order granting an injunction and appointing a receiver upon a bill filed on the 23rd of October 1857, by the appellees against the appellants.

<p>Appeal from the Circuit Court for Caroline County.</p> <p>This appeal is from an order quashing an execution. The facts of the ease are as follows: On the Sth of March 1841? the appellant brought an action of debí for $2000, on a bond, in Caroline county court, against tiie appellees. The plaintiff afterwards filed a general declaration, but not the bond or a copy of it, and the declaration did not set forth the condition of the bond. At the October term 1841, of that court, a judgment by confession was entered “/or penalty and costs, to be released on the payment of principal, interest and. costs. ’ ’ From the statement of counsel, submitted as evidence, it appears that the judgment was thus entered because the bond was not in court, from which to complete the entry in proper form. There is a difference as to the recollection of the respective counsel, as to the condition on which it was agreed that the judgment should be thus entered, one saying that he assented upon condition that, the bond should be afterwards filed, and the other thinking that no such condition was required of him, but that he voluntarily said he would file it, or perhaps that he would file a copy if he could not find the original, but as to this last remark he is not confident. At October term 1842, at the instance of the plaintiff, a rule was laid on the defendants “to show cause why the judgment should not be made complete, and why it should not be taken as a judgment nunc pro tunc.” On showing cause the statements of the respective counsel were heard by the court, and at its March term 1844-, the court discharged ike rule. After the rule had been thus discharged, and at the same term, there was filed with the clerk, by the plaintiff’s counsel, a paper purporting to be a copy of the bond, according to which the bond bears date the 20th of December 1831, and is in the penalty of $2000, conditioned for the payment of $500 in October 1840, and $500 in April 184L, with interest ou each sum from date. At the same time with the filing of this paper, the plaintiff’s counsel ordered a fi. fa. to be issued on the judgment, and directed the clerk to enter a remittitur thereof “on payment of $1000, with interest from the 20 th of December 1839, till paid, and costs,” and the same was endorsed on the Ji. fa., which was issued by the clerk in accordance with this order and direction, and was levied by the sheriff. The defendants thereupon filed a bill, on the equity side of Caroline county courtfói‘ tin' injunction to stay proceedings on the fi.fa. The ih”junction was issued accordingly, and after answer filed the case was transferred to the high court of chancery, where testimony was taken, and the case being submitted on motion' to dissolve, the chancellor, (Johnson,) on the 1st of February 1854, passed an order dissolving the injunction. In his opinion accompanying this order, the chancellor says:</p> <p>“It seems to me that the equity of the case is manifestly With the defendants, there being no intimation, in the bill or proceedings, that the amount claimed to be recovered upon the judgment, is not due, the objections relating entirely to irregularities, real or supposed, in the' mode in which it was entered Up. The rule laid in Caroline county court, in October 1S42-,-on (he defendants at law, requiring them to show cause why . the judgment of October term 1841, should not be taken as a judgment nunc pro tunc, was, as appears by a copy of the docket entries, discharged at March term 1844, when a copy of the bond sued on was filed, and an order for an execution' given by the' plaintiff’s attorney; and this is strongly urged as a ground for equitable relief. I am of opinion, however, that this circumstance does not give the defendants, at law, a title' to the relief of this court. If no execution can rightfully issue upon the judgment, because it was to be released up on the payment of no certain sum, or for any other irregularity which the county court has refused to correct, or permit to be correct-' ed, that court, upon motion, is quite competent to furnish the' proper remedy. Chancery, as was said by the Court of Appeals, in Fowler vs. Lee, 10' G. J., 538, does not lightly interfere with judgments at law. cIt interposes only to prevent fraud, or to relieve against substantial injury or gross injustice,- and never merely for the correction of informalities or' irregularities in legal proceedings. These, when they occur, must be left to the courts of law, which can and will, when required, afford the party aggrieved full and substantial relief.’In my judgment, there being nothing in this case calling for' the extraordinary power of a court of equity, to interfere by -way of injunction, must be dissolved.”</p> <p>After the dissolution of the injunction, a vendi exponas, by Way of execution on the judgment, was issued out of the Circuit court for Caroline county, on the 5th of September 1854, upon the return of which the defendants moved to quash it:</p> <p>1st. Because the judgment is not such a judgment on which execution could legally issue.</p> <p>2nd. Because the plaintiff, by his counsel, attempted to complete the judgment by filing a paper in the cause without the consent of the defendants, or either of them, or their counsel, and contrary to the express judgment of this court, as will appear by the records of said court.</p> <p>3rd. Because the plaintiff has instituted in said court another action to recover of the defendants a like sum of money founded on the same cause of action, and the execution in this case should be quashed unless he discontinues the latter suit.</p> <p>This motion the court (James A. Pearce, Special Judge) sustained and quashed the execution, and from this decision the plaintiff appealed.</p> <p>The ground upon which the motion was sustained by the court below was, that this judgment for “the penalty and costs, to be released on payment of principal, interest and costs,” is not, under the decision in Clark vs. Digges, 5 Gill, 109, a judgment on which execution could properly issue, and the effect of the court’s decision, discharging the rule to show cause why it should not be completed, was to leave the judgment in the same condition of imperfection in which it originally stood, and the plaintiff could not complete it in the way in which he attempted, by ordering the remittitur to be entered.</p>

This appeal is from an order of the court below refusing to grant letters of administration de bonis non upon the estate of George Fox, deceased, upon the application of the appellant. The facts of the case are fully stated in the opinion of this court.

Assumpsit brought on the 13th of December 3855, by the appellee against the appellant.

The writ of error in this case issued out of the Circuit Court for Baltimore city, on the 9th of April 1859, and directed to the Criminal Court of Baltimore city, brings up for review the judgment of the latter court (Stump, J.) pronounced upon the plaintiff, in error. The indictment and judgment are fully stated in the opinion of this court.

<p>In a trial under a procedendo, no error can be imputed to the rulings of the court below, based on the terms of a contract and a modification thereof as interpreted by the appellate court on the first appeal.</p> <p>Where the record does not show whether a certain prayer was granted or* refused, and no exception in reference to the court’s ruling upon it was taken, it is not before the appellate court for review, for if it was granted, the appellant cannot complain, and if rejected, no exception was reserved to such ruling of the court.</p> <p>The appellate court having, on the first appeal, reversed the judgment because-of the rejection of certain prayers, in which they said they “saw no defect,” , and these prayers having submitted to the jury the question of bona fides in making certain estimates, it must be intended that the court thought there was evidence on that question proper for the jury.</p> <p>Where the plaintiff’s prayer, leaving to the jury the inquiry whether certain estimates were made bonaf.de or not, is granted with the assent of the defendant, the latter cannot afterwards object to the same inquiry being made part of his own prayers.</p> <p>What is admitted to be the law of the case, cannot be gainsayed before the jury, and a defendant, after conceding a prayer involving a certain question of fact, cannot deny that such an inquiry is before the jury, any moré than he can argue against the law of instructions given without such assent.</p> <p>Prayers should he so framed as to instruct, not to embarrass, juries, and where the court thinks they may have the latter effect, it is not its duty to place a construction on the language employed by counsel, hut may reject the prayers as offered.</p> <p>A prayer that if the jury find the making of a certain contract, &c., “and that, after the modification, as stated in the defendant’s third prayer, and made, part of this,” &c., does not submit to the finding of the jury the facts stated in such third prayer, but refers merely to the modification of the contract.</p> <p>A prayer that if the jury believe certain facts, then “the plaintiffs are not at. liberty to establish, by any other evidence than that prescribed by the contract, the quantity,” &c., of work done, is erroneous in leaving the interpretation of the contract, which is a question of law, to the jury.</p> <p>The refusal of a prayer is no ground of reversal, if the same has been substantially granted before in other prayers, because such refusal does the party no •injury, while, at the same time, it prevents embarrassment by a complication of unnecessary propositions of law and fact.</p>

This appeal is from an order refusing an injunction, upon a bill filed by the appellant against the appellees in April 1858.

Circuit Court for Baltimore City. The Beard of Directors of the Baltimore and Ohio Rail Road Company adopted, on the 17th of December 1856, a resolution for an extra dividend, in which, after reciting, by way of preamble, that there has been appropriated by the company, from time to time, the sum of $3,000,000, and upwards, of the net earnings of the main stem of the road, to the purpose of construction, with the intention, in conformity with the practice of the company, of…

This appeal is from an order admitting to probate as to personalty, a paper purporting to be the last will and testament of Virginia W. Mason, deceased, propounded for probate by the appellee, the executor therein named.

Ejectment for various pieces or lots of ground in the city of Baltimore, brought on ihe 24th of April 1856. Plea, non cul. The lessors of the plaintiffs, (the appellants) claimed, title as heirs at law of Rachel Colvin, deceased, and the defendant (the appellee) claimed as devisee under her will, executed on the 6(h of April 1848. Exception.

Attachment on judgment issued at the instance of the appellee and laid in the hands of the appellants, and Chas. Moore, trading under the name and style of Robert Moore & Brother, as garnishees. The facts of the case, and the rulings Of the court below, (Marshall, J.,) are sufficiently stated in the opinion of this court.

This appeal is from the refusal of the court below (Marshall) to strike out a judgment of condemnation against the appellant and to quash an execution thereon. An exception was taken to this action of the court below, and the facts of the case are fully stated in the opinion of this court.

Assumpsit brought by the appellee against the appellant, on the 15th of August 1857. The declaration contains six common money counts, and the seventh is upon a bill of exchange for $402.53, drawn by Thomas W. Williams, payable to the order of Thomas W. Williams, by him endorsed, and afterwards accepted by the defendant. Plea, that the defendant never was indebted to the plaintiff as alleged. Exception.