Volume 18 — Maryland Reports

City. This appeal is from au order making perpetual an injunction, granted upon a bill, filed on the 14th of December 1857, by the… Held: that the taxing power of a -State is never presumed So be relinquished, unless the intention to relinquish is declared in dear and unambiguous terms.” Charles River Bridge vs. Warren Bridge, 11 Pei., 422. Mayor Sp C. C. of Balt., vs. Ball, dj* Ohio R. R. Co., G Gill, 238. Mayor, 6fc., of Balt., vs. Board of Police, 15 Md. Rep., 376.

Covenant, brought the 12th of November 1855, bjr the appellee against the appellant, on a policy of insurance issued and dated the 22nd of April 1852, insuring the plaintiff against loss or damage by fire to the amount of $2300, on a frame dwelling, &c., “as per application.” ' In the application the plaintiff offered for insurance “his property” on Rhode River, in Anne Arundel county, and also assented to the charter, constitution and by-laws of the company, and the policy…

The widow and adult heirs of James Kent, who died intestate, filed their bill in February 1853, against the administrator and infant heirs, for a sale of his real estate to pay debts, in order to save the personalty.

Appeals from the Equity side ot the Circuit Court for Prince Georges County. For a statement of the pleadings, evidence and proceedings in this case, prior to the present appeals, reference must be made to 4 Md. Ch. Dec., 199, and 6 Md. Rep., 135.

Ejectment for part of “Elysiansylvaniaj’’ brought July 29th, 1855, by the appellant against the appellee.

,) striking out, on motion of the appellee Ridgely, a judgment recovered by the appellants against the appellees, and bringing up the case by regular continuances, and quashing a scire facias issued on said judgment. The facts of the case are fully stated in the opinion of this court. See also, 6 Md.

Ob’, dated November 6th, 1855, at five months, drawn by the defendant in favor of the plaintiff. Fleas tion-assumpsif, and set-off. At the trial two exceptions were taken by the defendant, to the rulings of the court below, (Nelson, J.,) which are fully stated in the opinion of this court.

Action, brought June 29th, 1857, by the appellee against the appellant. The declaration in its first count declares upon a promissory note for fil5Q, dated January ITlh, 1848, by which tiie defendant promised to pay to the plaintiff’s intestate, in his lifetime, said sum with interest, and that said sum is due with interest from January 17th, 1854. The second and third counts are for money lent anti advanced, and ou an account, stated.

Appear from the Circuit Court for Carroll County. Action, brought May 6th, 1858, by the appellant against the appellee, to recover the amount of a single bill for $106, dated Aprj.l 1.0th, 1844, in favor of the plaintiff’s intestate, payable at twelve months.

Arrear from ibe Circuit Court for Frederick County. Assumpsit, brought July 21st, 1856, by the appellant against the appellee, to recover (be sum of $100, money loaned. The declaration contains the common money counts, and the plea was non assumpsit.

Action for a libel, brought November 18th, 1856, by the appellant against the appellee. Held: that even if (his ruling was erroneous the judgment could not be reversed, because the verdict upon the plea of nonassumpsit being for the defendant, they could not see that the plaintiff had been injured by the ruling excepted to. 2 Greenlf’s Ho., sec. 411.

This appeal is taken from an order of the court below, refusing, to-reinstate an-injunction, and appoint a receiver as prayed in the information filed on the part of the appellant.

Assumpsit, brought July 16th 1856, by the appellants against the appellee, as endorser of a promissory note for $45(.).56, dated “Woodbine, Carroll County, Mcl., 30th September 1854,” payable at twelve months “at the bank of Westminster,” drawn by one Richard L. Ensey. Plea, non assumpsit.

By an ante-nuptial contract, or articles of agreement, dated March 4th, 1850, between Isaac Michael and Catharine Baker, made in contemplation and consideration of marriage, the said parties, under their hands and seals, entered into covenants and stipulations in substance as follows:—The said Catharine being possessed in her own right of money, choses in action, book accounts and other personal property, to the amount of $4250, doth hereby assign and convey the same to the…

Aureal from the Circuit Court for Frederick County. Action brought Sept. 14th 1859, by the appellant against the appellee, “for that the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession of the plaintiff’s goods, that is to say, one mare; and the plaintiff claims $500.” The defendant pleaded that he did not commit the wrong alleged.

Trespass, q. c.f., brought June 23rd, 1853, by the appellant against the appellee. The amended nar. is for breaking and entering the closes of the plaintiff, called “Friendship,” “Dispute Continued” and “Partnership.” Plea not guilty and defence on warrant. A warrant of survey was issued and locations were made for both parties, but no’ counter-locations were made on either side.

Action brought July 28th, 1857, by the appellant against the appellees and two others, for an assault and battery, alleged in thenar, to have been committed July 27th, 1857. The defendants severed in their pleas, each pleading non cul, and the defendant, Henry Zimmerman, also pleaded son assault. The plaintiff joined issue on the several pleas of non cul, and replied de injuria to the plea of son assault, but no issue appears to have been joined on this replication.

The real estate of John Lantz, deceased, was sold under a decree in equity, for distribution amongst his hejrs. At this sale, which was duly ratified, the appellant became the purchaser, made the cash payment and gave his bonds for the two credit payments, the last of which fell due August 16th, 1853. The appellee, James Lantz, was the trustee.

<p>if an appeal he taken in time, the delay in transmitting the record to this court is no ground for dismissing the appeal, unless it affirmatively appears that such delay is by the default of the .appellant.</p> <p>At a trial various exceptions to the rulings of the court were taken by the defendant, and signed -and sealed. The verdict was for the plaintiff for $35,788.53. The defendant moved for a new trial, which the court decided should 'be granted, unless the plaintiffs would remit on the verdict, the sum of $6195.14. The remittitur was entered, and a final judgment entered for the reduced sum. On appeal from this judgment by the defendant; H$Ln:</p> <p>1st. That the action of the court below, granting the new trial, unless the remittitur was entered, was a matter within the discretion of that court, and cannot he reviewed here.</p> <p>2nd. The judgment for the reduced sum was a judgment on the verdict and an appeal therefrom brings before this court the exceptions taken at the trial, in the same manner as if the motion for a new trial had been unconditionally refused, and the judgment had been rendered on the verdict for the whole sum.</p>

After this case was decided, as reported in 17 Md. Rep., 433, a motion was made, by the appellees, during the same term, to rescind and reform the decree, and for a rehearing of the cause. No reasons were filed in support of this motion, and the appellant, subsequently, on this ground, moved to dismiss the motion. Certain papers were then filed by the appellees, in support of their motion, the purport and effect of which are stated in the opinion of this court.

.Appeal from the Superior Cpurf of Baltimore City. Action brought September 6th, 1856, by the appellee against th.e appellants, to recover damages for default of the defendants in imposing a valid tax for the work done under a contract made by the plaintiff with the .city commissioner, for the grading and paying of Hull stjreet.

The bill in this case was filed by the appellee against the appellants, for an injunction to restrain the defendants from selling the property of the complainant for payment of a ta£ assessed thereon, for the grading of North Avenue between Pennsylvania Avenue and the Fails Turnpike Road.

This appeal is from a decree of the court below, (Lee, J.,) passed August 31st, 1859, upon petition of the appellees, for a sale of property mortgaged to their testator by the appellant, by a mortgage dated September 2Sth, 1841. The proceedings and decree were under the Act of 1833, ch. 181, and its supplement of 'J 839, ch. 9.

A mortgage was executed, February 25th, 1856, by George W. Copeland and Mary Ann E. Copeland, his wife, of a mill and mill-seat, the real estate of… Held: that no evidence could be received to invalidate an acknowledgment of a deed. See, also, 3 H, f Met1., 3,21, Ridgely vs. Howard. 12 G. &p J., 455, Miles vs Knott. 44 Maine, 28, Greene vs. Godfrey. 26 Verm., 500, .Eastman vs. Waterman. 13 Barb., 50, Elwood vs. Flock. 6 Rlackf., 393, McNeely vs. Rucker. 26 Eng. Lazo 4’ Eq.

Action brought April 2nd, 1858, by the appellee against the appellant, to recover 0500 with interest, which sum was deposited in the… Held: by some other person than the plaintiff, raising no question whether it had been endorsed or assigned, or whether the holder was a bona fide holder or not, or holder for value or not. The third prayer asserts, that the plaintiff could not recover without producing the certificate to be cancelled. These prayers were properly rejected.

The facts are stated in the opinion of this court. The reasons for the motion, in substance, are:— 1st. That the cause of action being an open account for goods sold and delivered, there was no power to extend the judgment as the court did, but the plaintiffs were required to have a writ of inquiry, and their claim and damages assessed by an inquisition. 2nd.

This-bill, filed October 28th, 1857, by the appellees against the appellants, alleges that Edward Ferry died, seized in fee of a lot and premises on Lombard street, conveyed to him by deed from Gelston and wife; that he left a widow, Charity, since intermarried with Wm, Lawes, and as heirs at law, Susannah, the wife of Lumpkin, and two infant children; that the property is not susceptible of partition, and it will be for the interest and advantage of the infants and…

Action brought, January 8th, 1859, by the appellant against the appellee, for that the defendant is publicly engaged in the business of telegraphing or… Held: as it were, a public office,, and was hound to the public. To render a person liable as a common carrier, he must exercise the business of carrying as a public employment, and must undertake to carry goods for all persons indiscriminately. He is a person that carries goods for hire. Jacob’s Law Diet., tit., Carrier.

Action brought September 14th, 1858, by the appellees against the appellant, to recover the sum of $443, amount of harbor duties of port tonnage of two cents per ton, imposed by the plaintiffs upon the “William Jenkins and Joseph Whitney,” two steam ships of the defendant, from March 1857, to January 1858, under the Act of 1791, ch. 60j assented to by Acts of Congress with the proviso “that nothing herein contained, shall authorise the demand of a duty on tonnage on vessels…

Attachment on warrant, issued June 4th, 1857, at suit of the appellants, on a protested draft of L. Bernard for $600, endorsed by the plaintiffs. The writ commands the sheriff to attach the land, goods, credits, &c., of Bernard, “to the value of $602.18, current money, and cost of this attachment, according to the form of the Act of Assembly in such case made and provided,” with the usual scire facias clause.

Apx’kaXí from the Superior Court of Baltimore City, Attachment on warrant, issued July 23rd, 1856, by the appellees, to affect the credits, &c., of the Central Ohio Railroad Company, and laid the next day in the hands of the Baltimore & Ohio Railroad Company, which appeared and pleaded nulla bona, and the case was tried October 6th, 1858. JUxceptioti: The claim of the plaintiffs, (citizens of Massachusetts,) on three acceptances, amounting to $3,502.61, was admitted.

Replevin, brought May 15th, 1854, by the appellant against the appellee. Pleas non cepit, and property in defendants.

Action, brought July 15th, 1858, by the appellee against the appellants, for that the defendants converted to their own use, and wrongfully deprived the plaintiff of the use and possession of her goods, that is to say of one piano, and the plaintiff claims $2000. Joint plea,-that the defendants did not commit the wrong alleged.

Appear from tho Equity side of the Superior Court of Baltimore City. Held: in equity, as equally conclusive against him, even if he were seeking to draw again in question the title of the appellant. The bill, however, does not show any renewed claim by him. 6th- The action of trover was brought April 28th, 1547. Glenn was appointed trustee in 1847.

Ejectment, for a house and lot in Baltimore, brought May 7th, 1857, by the appellant against the appellee. Plea, non cul. Exception: Both parties claim under the will of Francis J, Mitchell, and the only question arises, under the facts, upon the constructiou of the following clauses of that will: 4th.

Action brought, April 19th, 1858, by the appellants against the appellee. 1st. For that the plaintiffs possessed a tract of land through which a stream of water flowed, on which they owned a mill for grinding grain and making flour, and were therefore entitled to have the stream flow below, and away from their mill, in its accustomed channel, and the defendant erected a dam, with timber, earth and stones, and other materials, across said channel of the stream below their…

The court below (Price, J.) decided, September 3rd, 1860, to reject the claim of Sparks against the insolvent estate in this case, and from this decision Sparks appealed, October 16th, 1860, and a motion was made to dismiss this appeal, for the reason, among others, that it was not taken in time.

Debt, brought October 13th, 1856, by the appellant against the appellee, on a bond dated April 26th, 1847, in the penalty of $2000, conditioned for the faithful performance by George H. Buckey, of his duties as trustee, under a decree of a court of equity, in which the defendant and one Jacob M. Buckey, were co-obligors and sureties for said trustee:—Breach, that in 1855, the trustee was removed for violation of his trust, and the plaintiff appointed in his place, and it was…

This appeal is from a decree passed September 10th, 1858, for a sale of land and an account of rents, and profits and improvements, on a bill filed by the appellees against the appellant. The facts of the case are fully stated in the opinion of this court.

Action, brought May 1857, by the appellee against the appellant, to recover $300.29, upon the following contract., the .execution of which by .the defendant was admitted. “In consideration that the trustees of the First Independent Church of Baltimore, in the City of Baltimore, who,own a burial ground on Belle Air Avenue, will sign the petition., noto in circulation., to the city commissioner, to pave said avenue, I hereby bind myself ¡to pay to said trustees any excess…

Bill filed, September 9th, 1S58, by the appellee against the appellant and others, charging that the complainant had property settled to her separate use, derived from her father’s will; that she is a married woman, and, in the absence of her husband, George B. Clarke, had been induced, by the fraudulent representations of one Lane, his partner,- to sign certain notes, her husband being joint maker with her therein; one of which, for $50Q, found its way in the hands of the…

Appeal- from the Equity side of the Circuit Court for Somerset County. Bill filed, March 31st, 1858, by the appellant as administrator of Caleb E. Horsey, against the appellees, for an account of the rents and profits of a tract of land called “Skinner’s Fancy.” Edmund C. Horsey died in- 1853, seized and possessed, it is alleged, of this land, leaving his widow, Eglantine, and three infant children, one of whom was the complainant’s intestate.

Action, brought. September 8th, 1857, by the appellee against the appellants, “for that the defendants converted to their own use, or wrongfully deprived the plaintiff of the use and possession of the plaintiff’s goods, that is to say, bricks, brick-kilns, wood, joists, rafters, and boards, And the plaintiff claims a re turn of said goods, or their value, and $1500 for their detention.” Plea, that the defendants did not commit the wrong alleged; verdict in favor of…

Action brought, August 3rd, 1858, by the appellants, as holders, against the appellee, as endorser, of a promissory note, for $300y-dated December 8th, 1857, drawn by Jesse Hollingsworth, payable at four months, to the order of the defendant, and by him endorsed. Plea, no promise as alleged.

Appeal- from the Circuit court for Carroll County. Action, brought December 3rd, 1856, by the appellant against the appellees,-judges-of election for the eighth election district of Carroll cotin ty, tov recover damages for their refusal to permit the plaintiff to vote at the'presidential election, November 4th, 18513.

This appeal was taken under Art. 5, sec. 25, of the Code, from an order dated November 26th, 1861, of the court below (Brewer, J.) refusing an injunefion. The injunction was not asked for in the bill, but by petition on the facts disclosed in the answer. In the course of the argument in this court t question was raised, whether this was a case coming within U provision of the Code, but a majority of the judges wl|p heaS the case, decided that it did.

Attachment, issued November 12th, 1857, on a judgment obtained by the appellees against Jos. C. Wilson, and laid in the hands of Price, as trustee of Wilson and Robt. W. Hyman. The garnishee pleaded nulla bona, and it was agreed that the object of the case was to test the validity of a deed of trust from Wilson and Hyman to Price, dated April 7th, 1857.

Appeal, after answer filed from an order of the court below (Krebs, J.) granting an injunction, upon a bill filed September 23rd, 1859, by the appellees against the appellant. The allegations of this bill are sufficiently stated in the opinion of this court. The bill makes no case for an injunction.

Debt, brought April 14th, 1856, by the appellee against the appellant, on a judgment of the Circuit court of the District of Columbia, recovered April 6th, 1847, by the plaintiff against the… Held: that the judgment of another State, though conclusive, can rank only as a simple contract claim. Full faith and credit is to be given to it.—its validity is not to be questioned, but in other respects it stands upon the footing of a foreign judgment, or claim upon simple contract.

) ratifying a sale of mortgaged real property, upon proceedings instituted by the appellee, November 18th, 1859, and alleged to be under the Act of 1826, ch. 192. The mortgage of real estate situated in that county, was executed by the appellants June 18th, 1855, to John F. Shipley, who assigned it to the appellee, who gave a power of attorney to R. R. Boarman, Esq., intending to vest in him authority to sell the mortgaged property.

<p>A party in interest, though not technically a party to the proceedings, may appeal from any order, decree, decision or judgment, of the orphans court, hy which he is aggrieved.</p> <p>But he is not allowed to appeal when the order is passed on summary proceeding, and on testimony of witnesses, unless he immediately notifies his intention, and requests the testimony to be reduced to writing, and the depositions to be at his cost, as provided by Art. 5, sec. 40, of the Code. The depositions must be taken under this provision of the Code, and reduced to writing, as given by the witnesses, before they can be properly brought before this court for review.</p> <p>The orphans court has no authority to certify that testimony of witnesses, prepared ex-parte, from notes of one of the judges taken at the trial, is correct, and direct it to he incorporated into the record for the purpose of an appeal.</p>

The bill, filed November 15th, 1859, by the appellee against the appellants, charges, that on the 10th of November 1859, writs of ft. fa. on five magistrate’s judgments, obtained July 7th, 1858, by S. M. and J. G, Chappell, against S. Roberts Kramer and Samuel R. Kramer, co-partners, trading as Kramer & Co., were levied by Dorman, the constable,, on certain goods in a drug store on Pralt Street, which belonged, exclusi\ely to the complainant, under a bill of sale from S.…

William P. Anderson, as principal, and Absalom Anderson and John H. M. Smith, as his sureties, executed a bond to John H. Anderson, who, in November 1851, obtained judgment against William and Absalom, as surviving obligors of Smith, for the amount of the bond. This judgment was, in due form of law superseded, February 26th, 1852, by the defendants therein, and Jesse Wright and Henry Clary.

Assumpsit, brought August 27th, 1852, in the Circuit court for Baltimore county, and thence removed, on suggestion of the plaintiff, to the Superior court of Baltimore city for trial, by the appellee against the appellant and John M. Linn, partners trading as Fulton & Linn, endorsers of a promissory note. Linn was returned nen est, and Fulton appeared and pleaded non assumpsit, and the case proceeded as against him.

<p>Where testimony, offered by the plaintiff, was objected to, but admitted by the court, if the plaintiff' did not afterwards avail himself of the decision of the court,-but proved the same facts by other evidence, the defendant was not injured by the ruling, even if erroneous.</p> <p>A plaintiff suing for work, in repairing a house, done under a contract, and also for extra work, having proved the work under the contract, may prove that certain portions of the whole work done was extra work, by a sworn measurer, to whom the work, claimed- to be extra work, was pointed out by the plaintiff'.</p> <p>Evidence of conversations between the defendant and a party to whom he had mortgaged the property, to show the consideration for which the mortgage was given, held subsequent to the doing of the work by the plaintiff, and not in his presence, are not admissible in evidence as against him. Declarations of a party showing that he claimed the funds attached in the hands'of the garnishee, are not admissible in evidence as against the plaintiff', nor is such a party a competent witness for the garnishee, because of his interest in the result of the suit.</p>