Volume 16 — Maryland Reports

<p>In plenary proceedings in the orphans court the answer must be on oath, and objection thereto for want of an oath is not waived, by the mere fact that the cause was argued before that court, by counsel for the petitioners, before passage of the order dismissing their petition.</p> <p>The Act of 1825, ch. 117, does not apply, and has never been regarded as applying, to appeals from the orphans courts.</p> <p>Where a claim has been passed by the orphans court but not paid, and the claimants afterwards become administrators de bonis non,' the distributees may contest the claim before the orphans court, at any time, without waiting for such administrators to exhibit an administration account including the objectionable claim.</p>

' Appeal from the Equity side of the Superior- Court of Baltimore City. Appeal from an order of the court below (Lee, J.) dissolving an injunction which had been granted upon a bill filed on'the 13th of November 1858, by the appellant against the appellee.

Assumpsit, brought on the 28th of April 1857, by the appellees against the appellant, to recover damages for the alleged refusal of the defendant to issue and deliver to the plaintiffs one of what were known as “Extra Dividend Orders,” of ihe Baltimore and Ohio Railroad Company. The pleadings and facts of the case are fully stated in the opinion of this court.

Trespass on the case, brought on the 26th of November 1852, by the appellants against, the appellees and John Glenn, as executors of Jos. Wilkins. Glenn died before the trial, and tire suit was prosecuted against, the other defendants.

In this case an action of covenant was brought on the 8th of September 1855, by the appellees, upon a policy of insurance issued by the appellant. Plea non infregit. Exception.

Atrkal from the Court of Common Pleas. Attachment on judgment, issued on the 15th of July 1858, by the appellee against Newman, and laid, on the 16th of July 1858, in the hands of Kalkman as garnishee, who appeared and pleaded nulla bona. Exception.

The bill alleges that the complainants had caused two attachments on warrants to be issued, the one from the law side of the Superior court, and the other from the Court of Common Pleas, upon transcripts of judgments rendered in Taylor county, Yirginia, in their favor against Mahaney, both of which writs of attachment were laid in the hands of the Fire Insurance Company, of Baltimore, and Mahaney appeared, by attorney, to the capias, in each case, and that Mahaney is justly…

<p>A bill by a creditor who had not reduced his claim to judgment and execution, nor in any other manner acquired a lien upon his debtor’s property, alleged that the debtor is selling his goods and applying the proceeds to his own use, and the use of others without consideration, and thus, and in other ways, is wasting his resources, and is sending large quantities of his goods beyond the reach of his creditors, and is utterly insolvent. Held :</p> <p>That these allegations do not make a case for the interposition of a court of equity, to restrain, by injunction, the debtor in the enjoyment and . power of disposition of his property.</p> <p>Where answers are called for and given -under oath, denying the allegations of fraud in the bill, they are strong evidence for the defendants, and unless rebutted by the degree of evidence required by the rule in such cases, must be taken as proof of what they allege.</p> <p>A mortgage to be valid must be bona fide, for if it be made with intent to defraud or defeat creditors, it will be void, though there may be, in the strictest sense, a valuable and adequate consideration.</p> <p>When a sale, assignment, or other conveyance, merely amounts to giving - preference to one creditor over another, it is not to be treated as mala fide, but as merely doing what the law admits to be rightful; it is not necessarily fraudulent because it operates to the prejudice of a particular creditor.</p>

The bill in this case, filed on the 15th of January 1857, by the appellee against the appellants, sets up the mortgage of the 15lh of December 1856, from Charlotte Levy to the complainant, referred to in the preceding case of Rich, et al., vs. Levy, et al., and alleges that the defendants, Lewis, Bros. & Co., as judgment creditors of said Charlotte, had, on the 13th of January 1857, issued an. execution on their judgment and caused the same to be levied on the goods covered…

Assumpsit, brought on the 4th of January 1855, by the appellee against the appellant, to recover a sum of money alleged to have been… Held: possessed and enjoyed by such person and persons, and for such use and uses, as the said Mary Catharine shall, at any time or times hereafter, during her life, limit, devise, order or dispose of the same, or any part thereof, either by her last will and testament in writing, or by any other writing whatsoever', signed with her hand…

Attachnmvt on judgment issued on the 16th of Feb. 1855, by the appellants against George, and laid in the hands of Hiedes and Davis, as garnishees, who appeared and pleaded nulla bona. Exception.' The judgment was admitted, and the funds attached were in the hands of the garnishees, under two deeds from George to them, dated the 2nd and 5th of August 1854.

<p>The 5th sec. of the Mechanics’ Lien Law of 1845, ch. 287, prevents the issuing of a scire facias to enforce the lien, in cases where a credit is given or notes or other securities received, until the expiration of the credit agreed upon.</p> <p>The defence under this section, that the scire facias issued before the expiration of the credit, is as available to any one whose property is sought to be charged, as to the party with whom the contract for the credit is made.</p>

This appeal is from two orders of the court below, passed in reference to the sending of issues to a court of law, in regard to a claim presented by the appellee against the estate of Peter Hesson, his testator.

Attachment on warrant, issued on the 30th of September 1854, by the appellants against Turner and Barker, their non-resident debtors, trading under the firm of I. N. Turner & Co., returnable on the second Monday of January following, and returned, “Attached as per schedule — goods sold under order of court.” On the 15th of January 1855, during the same term, the appellees filed their claim to certain of the goods mentioned in the schedule annexed to the return, and to the…

Assumpsit, brought on the 30th of April 1857, by the appellants, co-partners, trading under the name and firm of Wells & Miller, against the appellee, to recover for work and labor done and materials furnished in and about the repairs of a steamboat. Plea non assumpsit. . Exception. Much testimony was offered on both sides which need not be stated at length.

The object of the bill filed in this case, on the 21st of December 1857, by the appellee against the appellants, was to have vacated, as fraudulent, a bill of sale from Kostner to Dorn, dated the 27th of August 1857, by which the grantor in consideration of $600, in hand paid, conveyed to the grantee, certain household furniture, and stock of goods, store fixtures, The bill alleges that, in May 1857, the complainant, Bayer, sold and conveyed to Kostner, for $1775, a house…

Action by the appellee against the appellant, brought on the 07th of April 1858, to recover for work and services done and rendered by Cass, the plaintiff’s intestate, for the defendant. The amount claimed by the bill of particulars was $380.64J. Plea, never indebted as alleged. Exception.

Appeaj, from the Superior Court of Baltimore City, Assumpsit, for money had and received, brought on the 25th of November 1856, by the appellees against the appellants. Plea non assumpsit. Exception.

The action in this case was brought on the 14th of May 1858, by the appellee against the appellants, on a bond, dated the 5th of October 1857, of the defendants to the plaintiffs to’dissolve an attachment in the case of the Plaintiffs vs. J. M. Hale.

Assumpsit brought on the Tth of April 1855, by the appellant against the appellees. Plea, non assumpsit. The case was submitted to the court below upon an agreed statement of facts, the material parts of which are as follows: The plaintiff, being owner of the ship Hopewell, chartered her to the defendants, as agents of the Peruvian government, under a charter-party, executed at New York, on the 22d of March 1853.

Ejectment, brought on the 20th of November 1855, by the appellee against the appellant, to recover a lot of ground in the city of Baltimore. Plea, non cut. Exception. The titles under which the parties respectively claim, are fully stated in the opinion of this court.

Assumpsit, brought on the 11th of January 1856, by the appellee against the appellant, to recover a paving tax for the paving of Fulton street. There was a judgment for the plaintiff, by default, and an inquisition taken, by which !$491 were assessed as damages, but this judgment was subsequently stricken out by consent, and non assumpsit pleaded. lsi Exception. The evidence offered on both sides, as appears from the record, is fully stated in the opinion of this court.

Baltimore city. Petition for a divorce a vinculo, filed on the 14th of May 1857, by the appellee against the appellant.

Assumpsit, brought on the 10th of September 1853, by the appellees, partners, trading as Woods, Bridges & Co., against the appellant and John B. HoweLl, trading as William Howell & Son, to' recover damages for non-compliance with an alleged contract for the sale of a lot of coffee, part of the cargo of a vessel called the “Clintonia Wright.” The declaration contains five special counts.

The bill in this case was filed, ou the 29th of June 1855, by the appellee, against the appellant and one Jas. L. Gray, surviving partner of the firm of “J. L. Gray & Brother,” composed of the said Jas.

Trespass quare, clausum fregit, brought on the 7th of December 1852, by the appellant against the appellee. Plea non cul., and defence on warrant. A warrant of re-survey was issued, and plats, containing the locations, made and returned, with testimony taken on the survey. It was then agreed that the plea of liberum tenementum, shall be conceded to have been pleaded by the defendant. Exception. Much testimony, oral and documentary, was offered on both sides.

<p>An appeal lies from the judgment oí a court sotting aside an award made by referees'to whom the case was referred under a rule of the court.</p> <p>A more liberal and reasonable interpretation of awards is now adopted by the eourts than formerly existed; every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible, without violating the rules adopted for the construction of written instruments.</p> <p>A pending cause was referred, under rule of court, to referees, who returned an award that a certain sum was owing by the defendant to the plaintiff, and that judgment be rendered in his favor for that sum and costs, “and the costs of this reference and award, which is the sum of $45, being the sum of $15 for each of said referees.” Held:</p> <p>That the latter part of this award, determining the costs of the reference, is not within the submission, and the award is, pro tanto, void, but this does not vitiate the other part, which is within the submission.</p> <p>Where that part of the award, within the submission, is of entirely distinct matter, and not depending on that which is awarded without the terms of the submission, the award is good as to the former, and void as to the latter.</p>

Action on the case brought on the 9th of January 1858, by the appellee against, the appellant, for the use and occupation-of a certain house and lot on Pratt street, in the city of Baltimore. Plea, that the defendant did not hold, use, occupy or enjoy the premises as alleged. Exception. The evidence is fully stated in the opinion of this court.

<p>In an action of trover judgment by default for want of a plea was entered, and subsequently an inquisition was taken and damages assessed to the plaintifi', and a final judgment rendered thereon, and execution issued which was outstanding. Jlfter the lapse of a term, the defendant moved to strike out the final judgment, for fraud, deceit, -surprise and irregularity, and the court ordered the judgment and inquisition to be struck out, hut allowed the judgment by default to stand, with leave to the plaintiff to proceed thereon, and have another inquisition, and from this order the plaintiff appealed. Held that the appeal lies.</p> <p>A judgment toy default, regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the court in declaring that the plaintiff is entitled to recover, though the amount of the recovery, in some cases, remains to be ascertained by a jury.</p> <p>A finding upon an inquisition has the same dignity and efficacy as a verdict on issues; the defendant may participate in the inquiry at bar, and if he absents himself, he has no better standing in court afterwards than a defendant who has defended the cause.</p> <p>The fact that the jury, on an inquisition, in an action of trover, assessed more damages than the evidence would warrant, is nothing but a reason for a new trial; it is no ground for striking out the judgment for fraud, deceit, surprise or irregularity, under the Act of 1787, ch. 9, sec. 6.</p> <p>Nor is the admission of inadmissible evidence, on an inquisition, ground for striking out the judgment under this Act; if a party allows such evidence to go to the jury, he is hound by the verdict; he must object when the testimony is offered, and the fact of his absence does not vary the principle.</p>

This action was brought on the 11th of July 1855, by the appellee’s intestate, against the appellant, to recover the value of a slave for life, named Solomon Digges, belonging to the plaintiff, and alleged to have been lost to him by being transported in the cars over the railway of the defendant. Exception. The pleadings and evidence are sufficiently stated in the opinion of this court.

The bill, in this case, filed on the 8th of June 1857, by the appellants against the appellees, alleges, that before the intermarriage of the complainants, the said Mary loaned money to the said Ann, who had a separate estate, consisting of real and leasehold property, to assist the said Ann in improving her property; that a part of the money was returned and the note of the said Ann, for $62.32, was given to the Said Mary for the balance, and the bill prays that the said…

This appeal is from a fro forma order of the court beiow, (Crain, J.) refusing a mandamus, applied for by the appellants, to compel the appellees to deliver up to them the property and custody of the Bladensburg Academy, and to cease to exercise the functions of trustees thereof. The appellants were duly elected trustees of this institution, under the provisions of the Act of 1858, ch. 391.

Covenant, brought on the 30th of November 1854, by the appellants’ testator against the appellee, upon an insurance policy. The pleadings and facts of the case are fully stated in the opinion of this court. A single exception was taken by the plaintiffs to the ruling of the court below, (Lee, J.,) which is also fully stated in the opinion of this court. The verdict and judgment were in favor of the defendant and the plaintiffs appealed.

This action was brought on the 21 st of April 1857, by the appellant against the appellees, to recover damages for injury done to the plaintiff’s property.

Attachment on warrant, issued at the instance of the appellants, on the 24th of February 1857, against Howard &. Poor, a firm doing business in Alexandria, Virginia. Under this writ, the sheriff, on the 26th of February 1857, attached “as per schedule,” one hundred barrels of flour, as the property of Howard & Poor, the flour being, at the time, in the hands of Ford &■ Rogers.

( The bill alleges that Gustavus A Thompson, of Cecil county, executed and delivered, bona fide, and for a valuable consideration, to the complainants, a conveyance of certain personal property in that county, which conveyance is filed as an exhibit with the bill; that in violation of the rights of property of the complainants, the defendant, as sheriff of Cecil county, has seized upon this property of theirs, in virtue of process issued against the goods and chattels of…

Assumpsit, brought on the 29th of December 1855, by the appellee against the appellant, as surviving partner of the firm of Holt & Maltby, to recover certain unpaid instalments of an alleged subscription for 150 shares of the capital stock of the Northwestern Virginia Rail Road Company, made in the name of the firm by the deceased partner, Dan. Holt, in his life time. Plea non assumpsit. 1st Exception.

<p>Upon a bill by cestui que trusts against a trustee, for an account and general relief, interest maybe allowed against the trustee, though not prayed for in the hill, if, under the facts disclosed, it appears equitable that it should be allowed.</p> <p>Under a trust to pay debts, due on judgments and decrees, or otherwise, balances of the trust fund remained in the hands of the trustee for several years, whilst there were outstanding judgments and decrees to which it should have been applied. Held:</p> <p>That simple interest was properly chargeable against the trustee upon such balances.</p>

This appeal is from two orders of the court below, refusing to dissolve and continuing till final hearing, an injunction granted upon a bill filed, on the 6th of December 1858, by the appellee against the appellant, and Allen M. Sherman and Wm.

Debt, brought on the 25th of March 1856, by the appellant, on the bond of Turner as constable, dated the 13th of June 1853. Exception. At the trial the plaintiff offered in evidence the-following receipt, the execution of which was proved: “Sept. 14-lh, 1853. Received of Charles A. Duvall, a mote of hand, drawn by James M. Boyd, for fifty dollars,, .dated May 28th, 1853, also, oue against same, for fifty dollars, dated April 9th, 1853. Thos.

Trover, brought on the 14th of April 1857, by the appellees against the appellants, to recover the value of sundry negro slaves. The case was docketed by consent for the purpose of trying title to the negroes in controversy. Pleas, non cul. and limitations. At the trial, a single exception was taken by the defend ants to the ruling of the court below, (Crain, J.,) which, with the facts of the case, is fully stated in the opinion of this court.

Action, brought on the 9th of November 1858, by the appellees against the appellants and Joseph Murdock, upon a counter-security bond, executed on the 21st of March 1851, by the defendants and Louisa A. Murdock, since dead, to the plaintiffs, as obligees, in the penalty of $3U00, and approved by the orphans court on the 9th of March 1852, and conditioned thus: The declaration alleges as a breach of this bond, that the said parties in the said condition mentioned, did not,…

The bill in this case, filed on the 1st of April 1857, by the appellants, on behalf of themselves and the other heirs of William Swann, deceased, against J. H. Hanson, the administrators of Hugh Cox, the executrix of W. Latimer, and the executor of Wm.

Scire facias upon a mechanic’s lien, issued at the instance of the appellee, on the 14th of May 1858, on his lien claim filed and recorded on the 2nd of December 1857, by which he claimed a lien for the sum of $484.94 upon a two-story frame dwelling house, erected on the farm of the appellant, in Howard county, and upon the adjacent grounds, of which the appellant was owner or reputed owner, and ffm.

Howard County. This bill was filed, on the 9th of October 1857, by the appellant against the appellee, to make the separate estate of the defendant, who was a married woman, responsible for a promissory note for $175, signed by her, payable to the order of the complainant, at six months, dated the 11th of March 1857, and delivered to the complainant.

Action, brought on the 28th of October 1857, by the appellee against the appellant to recover for work and materials done and furnished by the plaintiff to the defendant, in the repair of her house in Annapolis, during the years 1854 and 1855.

Action, brought on the 28th of October 1857, by the appellee against the appellant to recover for work and materials, done and furnished by the plaintiff to the defendant, in the repair of her house in Annapolis, during the years 1854 and 1855. The action was instituted in the Circuit court for Anne Arundel county, and was removed, on suggestion and affidavit of the defendant, to the Circuit court for Howard county, where it was tried in March I860. Isf Exception.