Volume 17 — Maryland Reports

Aitka i, from the Circuit Court for Howard county. 'Trespass on the case, brought on the 4th of March 1856, 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.

xVpreasú from the Superior Court of Baltimore City. Action brought on the 10th of November 1860, by the appellee against the appellant, to recover arrears of an annuity of $90,000, which the company stipulated to pay to the State by its mortgage of the 27th of January 1855, executed under the provisions of the Act of 1854, ch. 260.

Trespass quare clausum fregit, brought on the 27th of January 1857, by the appellees against the appellant, for breaking and entering a close called “The Eleven Acre Lot,” being part of a tract called “Hobb’s Rest.” Pleas which were treated as a plea of non cul., were filed, upon which issues were joined. Exception. The evidence offered in the cause on both sides, sufficiently appears in the arguments of counsel and the opinion of this court.

This appeal is taken from a decree passed upon a bill filed on the 2nd of November 1858, by the appellees against the appellants.

Trespass on the case, brought on the 9th of March 1858. by the appellant against the appellee, to recover the value of two horses and one mule, killed on the Washington Branch of the Baltimore and Ohio Rail Road. The writ was served upon the agents of tire Baltimore and Ohio Rail Road company, and that company appeared by counsel, filed pleas, and executed releases to witnesses sworn for the defendant.

Appear from (be Circuit court for Charles comity. This was a case of issues sent by the orphans court of Prince George’s county to the circuit court for that county, and thence removed to the circuit court for Charles county, for trial. The allegations of the petition and answer on which the issues were framed, and the facts of the case, are fully stated in the opinion of this court.

Debt, brought on the 2nd of February 1855, by the State against the appellants, as sureties on the collector’s bond of Philip J: Connell.

Appeal'from the Circuit Court for Baltimore City. In this case, a bill was filed by the appellant against the appellees, for an injunction to restrain them from proceeding to open, grade and pave a certain street, with a view of laying down railway tracks.

Mary’s county. Trespass cpuare clausum fregit, brought on the 20ih of February 1854, by the appellee against the appellant. The declaration charges that the defendant broke and entered the plaintiff’s close, called ‘Poplar Neck,” and threw down, carried away and converted to his own use the gates, fences and division fences of the plaintiff, in, consequence whereof the cattle of divers persons entered and injured the plaintiff’s crops. Plea, non cal.

Assumpsit, brought on the 17th of June 1853, by the appellants against the appellee and one Leonard C. Leitch, who was returned non est. The cause of action was a promissory note for $400, drawn by L. C. Leitch & Co., in favor of Sewell, Janney & Owens, and by them endorsed to the plaintiffs.

Action, brought on the !2lh of July 1859, by the appellee against the appellant, to recover money paid and for professional services as a lawyer, rendered by the plaintiff to the defendant. The suit was originally brought in the Superior court of Baltimore city. The defendant appeared by counsel in that court, and the record shows that a commission to take testimony was issued, by consent, to H. C. Wright, of New York city, on the 13th of January 1858.

<p>Where the rules of the court below, regulating the subject, are not set out in the record, an objection that the cause was not regularly for hearing, under the rules of that court, cannot be taken in this court.</p> <p>Where the decree appealed from states “that the cause stood ready for hearing, according to the requirement” of a certain rule of the court below, this court must presume that all prerequisites were complied with.</p> <p>A debt due from the deceased father of the complainant to the defendant, is no set off, either in law or equity, to a debt due from the'defendant to the complainant, even though the latter, as sole heir at law of her father, has been in possession of his lands, receiving the rents and profits thereof, which may eventually be made answerable for the defendant’s claim.</p> <p>Creditors, if necessary, may subject to their claims not only the lands of their deceased debtor, but also the rents and profits which have come to the hands of the heir since his death.</p> <p>But where a creditor’s bill has been filed for the sale of a deceased debtor’s lands, to pay his debts, a creditor has no right to ask that his claim may be investigated, and allowed as a set off to a separate and distinct claim of the heir at law against him, or that the heir shall be postponed and delayed in the recovery of his claim until the determination of the creditor’s suit.</p>

Appear front the Circuit Court for Prince George’s county. Peiilion for freedom, filed on the 20th of January 1860, by the appellees against the appellant, in the circuit court for Anne Arundel county, and thence removed, on suggestion of the petitioners, to the circuit court for Prince George’s county for trial. 1st Exception.

Assumpsit, brought on the 19th of March 1859, by the appellee against the appellant. Pleas, non assumpsit, payment and limitations. At the trial three exceptions were taken, the first by the plaintiff, and the second and- third by the defendants. 1st Exception.

Assumpsit, brought on the 17th of June 1853, by the appellants against the appellee and one Leonard C. Leitch, who was returned non-resident, and the suit prosecuted against the appellee alone. The declaration counts upon two promissory notes which were filed with it, both dated June 6th, 1849, one at three months, for $400, and the other at five months, for $396.15, both drawn by L. C. Leitch & Co., in favor of Sewell, Janney & Owens, or order, and by them endorsed.

Ejectment, for a tract of land called “Addition to Timber Ridge,” brought on the 28th of March 1849, by the appellant against the appellee. The nar. and pleadings are fully stated in the opinion of this court. The case was submitted to the court below on an agreed statement of facts, the material parts of which are also fully stated in the opinion of this court.

Appeal front the Circuit Court for Prince George’s county. Action, brought on the 15th of December 1857, by the appellant against the appellee, on two joint and several promissory notes, purporting to be drawn by Geo.

Action, brought on the 18th of December 1857, by the appellants, as holders, against the appellee, as endorser, of two promissory notes drawn by George W. Harrison, in favor of the defendant, and purporting to be by him endorsed. The defendant pleaded that he did not promise, as alleged.

Action, brought on the 31st of December 1857, by the appellants, as holders, against the appellee, as endorser, of a promissory note for $352.37, dated September 15th, 1857, at ninety days, drawn by George W. Harrison, in favor of the defendant, and purporting to be endorsed by him. The defendant pleaded that he did not promise, as alleged.

Action, brought on the 16th of January 1858, by the appellants as holders, against the appellee as endorser, of five promissory notes, all drawn by George W, Harrison, and purporting to be endorsed by James M. Benton, Elizabeth Harrison and the defendant, and all dated at Alexandria, Va., and payable at the Bank of the Republic,-in the city of New York. Plea, no promise as alleged.

The bill in this case was filed on the 9th of June 18-54, by the appellants, sundry negroes, claiming to be free, against the appellee, averring that Jacob W. Brashears died in 1816, leaving a last will and testament, executed on the 2nd of October 1811, by which he appointed one William Wells his executor, and disposed of his property as follows: “l give and devise unto my beloved sister, Mimy Brashears, and the heirs of her body, lawfully begotten, all my estate, both real…

The bill in this case, filed on the 28th of June 1859, by the appellee against the appellant, alleges that the complainant is the owner of a market farm about seven miles from the city of Baltimore, and that he and those under whom he claims, from time immemorial, have been accustomed to use a road leading through the lands of the defendant and others, to pass with horses, wagons, carts and servants, to haul produce and other articles to and from Baltimore city, and that…

Action for slander, brought on the 22nd of May 1858, by the appellant against the appellee.

The bill in this case was filed on the 24th of December 1857, by the appellant against the appellees, for an injunctiqn, to restrain execution upon judgments of condemnation, obtained by the defendants against, the complainant, as garnishee of Frederick Unger, in the circuit court, for that, county, on appeals from a justice of the peace.

The bill in this case was filed oil the 1.6th of October 1858, by the appellee against the appellants, for an injunction to stay execution of a judgment of condemnation against the complainant, in favor of the defendant, Boyd. It appears, from the record, that Boyd had recovered a judgment against one Wm.

Ejectment, brought on the 2nd of April 1855, by the appellant against the appellee, for part of a tract of land called “Holly Hill Farm,” containing one hundred and thirty-five and one half acres. The present trial was had under the procedendo issued upon the reversal of the judgment upon a former appeal, by the/present appellant, which is reported in 13 Md. Rep., 415. The pleadings are fully stated in the opinion of this court.

This bill was filed on the 4th of June 1849, in the court of ■chancery, by the appellee, as permanent trustee of Ebenezer T. Phelps, an insolvent debtor, against the appellants, the other six heirs of James Phelps, deceased, for the partition of the real estate of said James, consisting of about seven hundred acres of land, lying in Anne Arundel county, alleging that it was for the common interest that the land should be sold, or if it should be proved susceptible of…

The bill in this case was filed on the 14th of September I860, by the appellees against the appellant. The complainants, three in number, aver that they are members of the Baltimore United Fire Department, and in association therewith, being respectively members of the Vigilant and First Baltimore Hose Fire Companies, and two of them delegates therefrom to the Baltimore United Fire Department.

<p>The provisions of the Constitution and laws providing for the removal, upon the abolition of the court of chancery, of undisposed of and unfinished cases from that court to the circuit court, apply to a case in which the complainant, who had filed a bill of revivor, was dead.</p> <p>The Act of 1820, ch. 161, secs. 4 and 5, forbids the idea of abatement, and provides a mode by which a cause in chancery may be prosecuted, and a case which has not abated, is undisposed of and unfinished, and, when removed to a circuit court, must be carried on as if it had not been removed, and he regarded as a continuance of the same cause.</p> <p>After a decree to account, which, in effect, calls on both parties to be active in the conduct of the cause, the defendant, wlio has in his possession all the materials by which an account could be taken, can take no advantage of the apparent laches of the complainant.</p> <p>Where questions of laches and lapse of time arise in courts of equity, it is a sound maxim that each case is to bo determined according to its own facts.</p> <p>The plea of plene administranil will not protect an administrator, unless he has given the six months notice to creditors, required by the Act of 1798, ch. 101, and these six months are calendar and not lunar months.</p> <p>A complainant, by his bill of revivor, after a decree for an account, may make the widow and heirs at law of the deceased defendant parlies, and by an allegation of the insufficiency of personal assets to pay debts, give to his bill the attributes of a creditors’ bill, under the Act of 1785, ch. 72, and obtain a decree for the sale of the real estate.</p>

Action, brought on the 9th of October 1857, by the appellee against the appellant.

Afterwards, on tile 4th of December 1856, but before the final order of ratification, the appellees filed their petition, charging that when they purchased this tract of land, it was represented to them by the trustees, or their agent, that it contained seven hundred and sixteen acres, of which the said James Kent was entitled to one-half, or three hundred and fifty-eight acres, and that a plat of the same was exhibited to them by Mrs. Mary Kent, then acting as the agent of…

It is only necessary to state, in this case, that it appears from the record that the appellee recovered a judgment against the appellant, James Denton, and one Joseph Den-ton, in May 1847, for $825.73, with interest and costs, and that on the 8th of April 1848, the said James Denton executed a bill of sale conveying, absolutely and with warranty of title, to James D. Denton five named negro slaves, “in consideration of the sum of $1500, current money, to” the grantor “in…

This appeal was taken from an order of the court below (Price, J.) quashing an attachment issued by way of execution on a judgment obtained by the appellants against one Samuel H. Miller. The proceedings in the case are fully stated in the opinion of this court.

Informing, Thomas S. Alexander, solicitor for the State of Maryland, on this behalf appointed by the governor of Maryland, shows that Dennis Claude, of the city of Annapolis, is comptroller of the State of Maryland, having been duly appointed and commissioned by the governor, to supply a vacancy in said office, occasioned by the resignation of William H. Purnell, late comptroller, and that said Claude has bonded and taken the oaths of office prescribed by law, as by the…

Action of trespass and false imprisonment, brought on the 3rd of November 1858, by the appellant, Elmira, whilst a feme sole, against the appellee.

Appkal from the Circuit Court for Allegany county. Scire facias, on a mechanics’ lien claim, under the Act of 1841, ch. 76, applicable to Allegany county, issued at the instance of the appellants, on the 3rd of February 1855.

Action, brought on the 22nd of June 1858, by the appellant, as endorsee, against the appellee, as endorser, of a promissory note for $2152.26, purporting to be drawn by Howard Paceley, in favor of William C. Kirkhart, or order, dated the 22nd of April 1857, at twelve months, payable at the Frederick County Bank, and purporting to be endorsed by said Kirkhart and the defendant.

The bill in this case was filed on the 13th of April 1861, by the appellants, as children of Alexander and Margaret R, McKee, against the appellees, the administrators of the said Margaret and of the said Alexander.

Cross-Appeals from the Circuit Court for Baltimore city. In these cases a bill was filed on the 18th of August 1857, by the appellants in the first case, as well for themselves as all' other creditors of Henry Crowl, against the appellees, to vacate1, as fraudulent as against creditors, a deed' dated the-1st of June 1857, from Henry Crowl’ to Agnes P. Crowl, his wife, and on the 26th of September 1857, a bill was filed by Agnes P. Crowl, by her next friend, Edward Murray,…

•Appeal from the Circuit Court for Montgomery county. Assumpsit^ brought on the 26th of February 1853, by the appellant against the appellee’s intestate, on three promissory notes, the first for $500, drawn by John Lee in favor, of George C. Washington, or order, and by him endorsed, dated “ Washington, Aug. 3rd, 1852,” and payable sixty days after date; the second for $700, drawn, endorsed and payable as the former, and dated “Washington, Sept. 2nd, 1852;” and tke third for…

Appeau from the Circuit Court for Calvert county. Action, brought on the 24th of August 1857, by the appellee, as endorsee, against the appellant, as acceptor, of a bill of exchange. The pleadings are sufficiently stated in the opinion of this court. The record shows there was filed in the ease, at the same time as the declaration, a bill of exchange, dated the 14th of Oct. 1854, at four months, for $500, drawn by J'. T. Lyles upon, and accepted by, Thomas JBT.

Replevin, for certain personal property, brought on the 3rd of October 1856, by the appellee against the appellant.

Assumpsit, brought on the 8th of October 1857, by the appellants against the appellees, to recover the hire of certain negro slaves, alleged to be the property of the plaintiffs’ ward. Pleas, non-assumpsit and set-off. Exception.

<p>The Acts of 1852, ch. 133, and 1853, ch. 344, relating to the effect of answers m equity, as evidence, do not apply to the hearing of a case on motion to dissolve an injunction, and where the answers swear away the equities of the hill, the injunction, on such hearing,.must be dissolved'.</p> <p>Where a cause is not set down for final hearing, but simply on the motion1 to dissolve the injunction,, it is irregular on such hearing to dismiss that hill; it should be retained, and the complainants allowed to proceed with the cause to final hearing.</p>

Mary’s county. Petition for freedom, filed on the 17th of June 1859, by the appellees against the appellant. The petitioners, twelve in number, claimed their freedom under the will of Eleanor W. Turner, executed on the 18th of November 1837, and admitted to probate on the 7th of August 1838. The clauses of the will under which the petitioners claim, as well as the agreement of facts on which the case was tried, are fully stated in the opinion of this court. Exception.

Action, brought on the 3rd of October 1859, by the appellee against the appellant. v The first, second, third and fourth counts of the declaration set out a special contract, that in consideration that the plaintiff would run his canal-boat in the defendant’s line of boats, in freighting and carrying coal for it, on the Chesapeake and Ohio Canal, from Cumberland to Alexandria, during the whole boating season, for the year 1859, the defendant promised to employ the boat…

The bill iti this case, filed on the 25th of June 1860, by the appellees against the appellant, alleges that the complainants, as eight out of eleven heirs at law of Rachel Colvin, instituted an ejectment suit in the Superior court of Baltimore city, and obtained a verdict and judgment in their favor for eight-elevenths of the real estate of the said Rachel; that the defendant is in possession of all said veal estate, claiming as devisee under a will of said Rachel, which…

Ejectment, for one undivided fourth of a tract of land called “Elk Garden,” containing about 6000 acres, brought on the 18th of December 1856, by the appellant against the appellees.

Action, brought on the 11th of March 1859, by the appellee against the appellant, for work clone and materials furnished by the plaintiff for the defendant. Pleas, non-indebtedness, payment and limitations.

Replevin, for a negro slave named Milly, brought on the 30th of April 1849, by the appellee against the appellant. Pleas non cepit, property in the defendant, property in a stranger, and actio non accrevit infra tres annos. On the former appeal in this case by the plaintiff, reported in 10 Md. Rep., 67, the judgment was reversed and a writ of procedendo ordered.

Appear from the Equity Side of the Circuit Court for Allegany county. The bill- in this case was filed on the 6th of August 1856,, by the appellee against the appellants and The Ocean. Steam Coal Company, James L. Graham and Jerry Cowles.

Attachment, on warrant issued on the 18th of December 185?, at the instance of the appellants against the appellee, a non-resident debtor. The writ was returnable upon the first day of the succeeding April term of the court, and was returned levied upon certain real estate mentioned and described in the schedule annexed to the return.

Action, for malicious prosecution, brought on the 2nd of March 1858, by the appellant against the appellees, seven in number, in the circuit court for Howard county, and removed thence, on suggestion of the plaintiff, to the circuit court for Anne Arundel county, for trial.

In this case, a bill was filed on the 22nd of February 1856, by the appellee against the appellant and one Harlow W. Heath, to vacate and set aside a bill of sale from the said Heath to Lovejoy, as fraudulent as against the creditors of the grantor. Upon bill, answers and proof, the court below (Krebs, J.) passed a decree vacating the bill of sale, and against both defendants for costs. From this decree Lovejoy alone appealed, and the appellee moved to dismiss the appeal.

By an agreement between Seighman and Jacob S. Marshall, dated the 9fh of October 1856, among other things, Seighman agreed to sell to Marshall all his interest in a newspaper and priming office called the “American Chronicle,” consisting of the types, presses, chases, and all his interest in the subscription lists and good will, and all the furniture in said office, for $1325.50, which sum Marshall stipulated to pay in part m certain instalments, in money, &c., of which…