Volume 19 — Maryland Reports

Greorge W. Cook filed his petition in the Orphans Court of Baltimore city, on the 19th of April 1862, praying that letters of administration should be granted to him, on the personal estate of Sarah Ann Wigart, deceased, the grandmother of the petitioner.

<p>Appeal from tbe Equity Side of tbe Circuit Court for Carroll county.</p> <p>This is an appeal from a decree passed in tbe case of a bill in equity, filed, by tbe appellee against the appellants. Tbe proceedings in the cause, and tbe principal matters of evidence, are set forth in the opinion of this Court.</p> <p>Tbe parol testimony referred to, but not incorporated in the opinion of the Court, is as follows :</p> <p>Eli Fuhrman proved that he saw William and Mary Orumrine sign, the agreement, exhibit B., and witnessed its execution at their request; that at the same time, also at their request, five notes were drawn, for §20 each, by Michael Steffey, for the §100 mentioned in the agreement, and by him signed, which, at the instance of said Steffey, were also witnessed by him, the said Euhrman ; that said .notes were then delivered by the said Steffey to William Orumrine, with the remark, “1 will pay these notes to Philip Orumrine,” to which William Orumrine assented. These notes bear date the 3rd of May 1854, each being for the sum of §20, in favor of William Orumrine, and are payable, respectively, in eight days, six months and one year from date. The first of them states that it is given “for a good right and title of the property of Eve Steffey, wife of John Steffey;” the second, that it is “for a good right and title of all claims ;” and the third, that it is “for good right and title of the real property of Eve Steffey, wife of John Steffey.”</p> <p>Jacob Munche proved that William Orumrine had stated to him, since the death of Michael Steffey, that he had received §325, on account of the purchase money of said land.</p> <p>Both of said witnesses proved, on their cross-examination, that the land, at the date of the agreement, was about §1200.</p> <p>In the decree passed after a hearing of the cause, the Court below (Nelson, J.) says : “Although'the agreement for the sale of Mary Orumrine's moiety of the land, in the proceedings mentioned, to Michael Steffey, is obscurely drawn, yet the intention of both the vendors, William Orumrine and wife, is perfectly manifest, and the full purchase money having been paid, Orumrine and wife have no further interest in said land, and that Oecelia Steffey is clearly entitled to the whole of the land, subject to the dower right of her mother therein,” and then goes on to pass a decree for the sale of the same, for the purpose of distributing the whole proceeds between the said Cecelia and her mother, “to the exclusion of the defendants, William Crumrine and Mary, his wife.” From this decision and deeree the defendants, William Crumrine and Mary Crumrine, his wife, appealed.</p>

This was an action by the appellee against the appellant, docketed by consent the fab of October 1859, its object being tbe recovery of taxes due upon certain securities belonging to tbe estate of tbe late Joseph Thornburgh, deceased, Tbe case was submitted to tbe Oourt below on a written ¡agreement as to tlie facts, all of which are substantially ¡stated in tbe opinion of this Court.

Tliis cause was on a former occasion before tbis Court. The proceedings and decision of the Court upon the first appeal, will he found reported in 11 Hid. Hep., 198, &c. Subsequently to the remanding of the cause, additional claims were filed by the complainant, Banks, under a new commission, and further testimony taken, not only in reference to said additional claims, but also to those before this Court on the first appeal.

The order was passed on tlie petition of the appellee, urging the sale for special reasons; looking to the advantage of the estate. The appellants also filed a petition, alleging that they were the only next of kin and lawful distributees of the intestate, and objecting to the sale. Neither of said petitions was verified by oath, and no proof was offered as to the averments of either of them.

Action brought on tbe 10th day of September 1858, by the appellee, Joseph H. McGee, to recover from tbe appellants, Thomas Edward Hambleton, Jr., and Francis H. Hambleton, damages sustained by tbe appellee in tbe loss of a horse, alleged to have been hired by him to the appellants.

. This was an action brought on the 11th of April 1859,-by the appellee against the appellant, on the draft or bill of exchange of Clinton Wright, in favor of the ajipellee,- and accepted by the appellant. The said draft or bill of exchange was given for the purchase money of a negro wo-man, the slave of the appellee, sold by him to-said Wright.The declaration contained but one count, upon- said draft or bill.

This was a motion, on behalf of the appellee, to correct the decree of this Court, heretofore passed in this cause, signed at the June term, 1860. The opinion of this Court contains a full statement of the case as now decided, as well as of the points argued before them.

This is an appeal from an order of the Circuit Court for Baltimore city, dissolving an injunction. Held: that tbe retiring partner bad made a valid transfer of bis share in tbe partnership effects to tbe other, although they both knew that tbe partnership was insolvent. ’ “And further, this objection rests upon an assumption of fact which I do not find to be sustained by the evidence in the record.

This is an appeal from a pro forma order and decree of the Orphans Court for Baltimore city, passed on the 19tli day of December 1861, dismissing the petition of the ap-pellant. The case is fully stated in the opinion of this-; Court.

This is a case of an attachment on warrant, issued May the 2nd, 1854, by the appellant, to bind the property and effects-of James ForWood. The attachment was laid in the hands-of George Davis, who appeared and pleaded three pleas, two of which were ruled bad on demurrer.

This was an action brought by the appellee against the appellant, on the 6th of July 1848. A full statement of the pleadings and evidence in the case, as well as all questions of law arising thereunder, will he found in the opinion of this Court.

This was an action of replevin, brought in the Circuit Court for Caroline county, on the 5th of November 1858, by the appellants, to recover from the appellee three negro boys, the children of a negro woman, Caroline Olíase.

This is au appeal from an order of tbe Circuit Court for Baltimore city, appointing a receiver and granting an injunction. Tbe bill was filed on the 15th of February 1862, and the order passed the same day, without notice to the defendants. The answers of the defendants, under oath, were filed on the llth of the same month. The material averments of the bill are concisely stated in the opinion of this Court.

Tbe appeal in tbis case is from two orders of tbe Circuit Court for Allegany county, sitting as a Court of Equity, fcbe first passed on tbo 28tb of March 1862, granting an injunction, and tbe second passed on tbe 21st of April 1862, refusing to dissolve said injunction, and appointing receivers. The hill of complaint and petition of the appellees, was filed on the 26th of March 1862, and the answer of the appellant on the 1th of April following.

This was an action of trespass guare clausum fregii, instituted by 'the appellants against the appellee, on the 10th, of February 1858, for breaking and entering “certain lands of the plaintiff’s, called ‘Ghesnut Meadoius,’ and cutting and taking timber trees therefrom.’ ’ The defendant pleaded, first, that he “did not commit the wrong alleged,” and secondly, “that the land called ‘Ghesnut Meadows,’ where the alleged trespass was committed, was his land.” Three exceptions…

This was an action brought by the appellee against the appellants, at the January term, 1859, of the Court of Common Pleas of Baltimore city, to recover damages alleged to have been sustained by him, in consequence of a want ■of correspondence, in point of quality, between two casks ■ 1st Exception.—The plaintiff offered in evidence a bill of parcels rendered' to him by the defendants, in Avhich the tobacco sold by them to the plaintiff is described as “heavy Clarksville…

<p>Appeal from the Circuit Court for Baltimore city.</p> <p>Tbis is au appeal from a decree of said Court, (Krebs, J.,) passed on tlie 4th of June 1859, dismissing a bill filed by the appellants against the appellees, to set aside a deed executed by Thomas- J. Owen, on the 11th of June 1854, to Caroline Blondheim, one of the appellees, The allega'Eons of the bill and answers, as well as the evidence in the case, are stated in the opinion of this Court.</p>

This is au appeal from a decree of the Superior Court of Baltimore city, sitting as a Court of Equily, passed on the 12th day of April 1858, making perpetual an injunction theretofore granted in the… Held: as they might have done at any time, for their reimbursement.

Tbis is a proceeding by bill in equity, filed by tbe appellees against tbe appellants, on the 27th of November 1857, for tbe sale of tbe real estate of Margaret Dorsey, deceased, (formerly Margaret Hudson,) lying in tbe city of Baltimore.

Tbis is a case of attachment sued out by tbe appellants against the'appellee, at tbe May term, 1855, of tbe Court of Common Pleas of tbe city of Baltimore, on a judgment obtained by them at tbe May term, 1852, of said Court, against Elliott Johnson. Tbe case is fully stated in tbe opinion of tbis Court.'

This is a scire facias, issued by order of tbe appellee against tbe appellant, in pursuance of tbe Act of Assembly of 1860, cb. 326, entitled, “An Act to authorize and direct tbe State’s Attorneys for Baltimore city, Baltimore county, Anne Arundel county, and Prince George’s county, to institute proceedings to forfeit tbe charter” of tbe appellants. Tbe writ recites tbe incorporation of the appellants in 1812, and the making of tbe road in pursuance thereof.

The bill in this case was filed by tbe appellee against tbe appellants, on the 23rd of December 1856, for tbe foreclosure of a mortgage, and sale of tbe mortgaged premises. Tbe allegations of the bill and answers, and tbe evidence in the case, are stated in the arguments of counsel, and the opinion of this Court.

This was an action brought on the 6th of October 1858, by the appellant, against the appellee as maker of a promissory note for $200, payable at sixty days, and dated the 13th of July 1858. The case is stated in the opinion of this Court. The verdict of the jury and judgment being for the defendant below, the plaintiff appealed.

The bill in this case was filed by the appellees against the appellant, on the 19th of December 1856, for the sale of the real estate of Peter Parks, deceased, for the purpose of distribution among the heirs at law of said deceased. The proceedings in the case, so far as they have reference to the matters here in controversy, and the evidence relating thereto, are stated in the opinion of this Court.

This is an appeal from an order of the Orphans’ Court of Baltimore city, passed on the 29th of October 1860, sustaining a caveat to the will of Gfustavus Weems, deceased, and refusing to admit said will to probate. The case is stated in the opinion of this Court.

Arpear from the Superior Court of Baltimore city. This is an appeal from an order of the Superior Court of Baltimore city, discharging a rule which, upon the petition of the appellant, had been laid upon the appellees, to show-cause why a mandamus should not issue to compel them to proceed in the opening and widening of Holliday street, in the city of Baltimore. The case presented by the petition and answer is stated in the opinion of this Court.

Appual from tbe Circuit Court of Baltimore city. Tb is is an appeal from an order of tbe Circuit Court of Baltimore city, passed on tbe 7tb of July 1859, overruling exceptions filed by tbe appellant to tbe ratification of a sale of certain lands made to him by Eber F. Cooke, one of tlie appellees, who was also the trustee (appointed in tbe place of a former trustee, who bad retired from tbe trust) to make sale of said lands in pursuance of the original decree in the case,…

The bill in this case was filed on the 19th of October 1852, by the appellant against the appellees, for the purpose of obtaining an injunction to stay the prosecution of an action of ejectment, instituted by the appellee, Andrews, against the appellant, and also for the specific performance of a contract for the sale of real estate by the' ajDpellee, Rea, to the appellant, and to obtain a conveyance of the lands purchased.

Tbe bill in tbis case was filed on tbe 16tb of September 1850, by tbe appellees against tbe appellant, in tbe late .Baltimore County Court, as a Court of Equity, and after-wards transferred to the Equity Side of tbe Superior Court ■of Baltimore city. Tbe proceedings in tbe cause, as well us tbe arguments of tbe counsel on both sides, are set forth in' tbe opinion of tbis Court.

Amur, from tlie Circuit Court for Baltimore county. Tills was an action for slander, brought by the appellee against the appellant, at the May term, 1857, of the Superior Court of Baltimore city, and, afterwards removed, upon the suggestion and affidavit of tlie appellant, to the Circuit Court for Baltimore county. The declaration contains two counts.

The appeal in this case was taken from a judgment of the Court of Common Pleas of Baltimore city, reversing a magistrate’s judgment in favor of tbe appellants, rendered October the 14th., 1859, in a suit instituted by the appellants against the appellees. The case is stated in the opinion of thqs Court.

This was an action brought on the 11th of May 1857, by the appellants against the appellee, upon an award purporting to be made in pursuance of an agreement of the parties, directing the defendants below to pay to the plaintiff the sum of $107.25, for damages done to the lauds in the occupancy of the plaintiff, as tenant, in consequence of the construction of the defendants’ rail road through and over the said lands, as the line of the said road is now located.

This was a case of attachment on warrant, sued out from the Superior Court of Baltimore city, November the 9th,. 1858, by the appellants, founded on a judgment obtained by them on the 39th of January 1858, in the District Court- and Court of Common Pleas of Allegany county, Pennsylvania, against the Pittsburg, Fort Wayne & Chicago Rail Road Company, its object being to charge the goods, chattels and credits of said Rail Road Company, in the hands of the appellees.

Tbo bill of complaint in this cause was filed by tbe appellee against the appellant, on the 3rd of November 1856, for dissolution of partnership, account, appointment of a receiver, and for an injunction.

The original petition in this cause was filed by the Chesapeake Bank, on the.21st of January 1856, in the Circuit Court for Baltimore city, for the sale, under the Act of 1833, eh. 181, of certain mortgaged promises, in pursuance of a mortgage from Henry D. Lawrence to said hank, dated March the KUh, 1855, therein recited. A supplemental petition was filed bj1* the bank on the 2nd of December following.

This was an appeal taken by Mohler, Graff & Co., from a portion of the decree from which the appeal was taken in the preceding case by St-ickney & Co. For the state of case under which this appeal was taken, and the principle announced by this Court, in its opinion ujoon the facts there stated, see the preceding case, where they more appropriately appear, the cases having been argued together, and being connected throughout.

<p>A promise to pay after a discharge trader the insolvent laws, waives the discharge, and the prior debt is a sufficient consideration for the new promise; but the new promise thus mode to charge the party, must be an express promise, and must be absolute and unconditional.</p> <p>It is difficult to see tile difference between allowing an implied promise to remove the effect of the insolvent’s discharge, and admitting circumstances from which, in the absence of direct and positive proof, an express promise is to be found or inferred.</p> <p>An express promise, established by implication or inference from circumstantial evidence, is an implied promise ill effect. All the evils which would result from the one, are attendant, upon the other.</p> <p>'Where the alleged promises consisted of the expression of an intention and desire on the part of the insolvent to pay the plaintiff “as soon as he ivas able,” and of requests made on several occasions to a witness, by the insolvent, to pay the plaintiff, the witness being largely indebted to the insolvent, and it not appearing whether such indebtedness accrued before or after the insolvent’s application for the benefit of the insolvent laws,—. Held:</p> <p>1. If the indebtedness existed prior to the application, these requests were legally nothing more than expressions of a willingness to pay, because the insolvent had no right to apply that debt to the satisfaction of one creditor in preference to another, or to make any application of it that it was the duty of the insolvent’s trustee to make.</p> <p>2. If the indebtedness accrued after the application or discharge, the request. to pay was not equivalent to an express, positive, unconditional promise to pay, but rather in the nature of an assignment of one debt to meet another, not stronger than the cases of part payment of principle or interest after the discharge, which are not sufficient to revive a debt.</p> <p>3. The expression of an intention and desire to pay “as soon as he was able,” was not a waiver of the discharge by the insolvent.</p>

<p>After a decree has been enrolled, this Court will not entertain an application to vary it, except upon consent of all parties, orin respect of matters which are of course.</p> <p>Where the object of the application is to have the decree reviewed and altered in a material and substantial particular, under the well settled rules by which this Court must be governed, such an application will not be granted after the term has passed, and the decree has been enrolled.</p>

<p>Appeal from the Equity Side of the Superior Court of Baltimore city.</p> <p>This appeal is taken from an order of the Superior Court of Baltimore city, sitting in Equity, dated the 4th of August 1858, appointing Andrew G. Waters trustee of the estate of Charles Waters, deceased, in the place of Ereoborn' G. Waters, deceased, who was the trustee appointed by tbe last will of the said Charles Waters.</p> <p>The testator had devised to Freeborn G. Waters, bis heirs, executors and administrators, the entire residue of Ms estate, in trust (under existing circumstances) as to one-half part thereof, to pay the rents and profits thereof to his grand-daughter, Elizabeth Howard, for life, and after her death, the principal to be divided amongst her children; and as to the other one-half part thereof, to pay the rents and profits thereof to his grand-daughter, Rebecca White, for life, and after her death, the principal to be divided amongst her children.</p> <p>He further provided, that if at any time the said Freeborn G-. Waters, his heirs, executors or administrators, shall be unwilling to act, or continue to act iu the trust, the Court of Equity having proper jurisdiction over the subject, shall appoint some other person as trustee, who, in its opinion, is an honest and fair man, and competent to the duties of the trust. ' And that the said Court, so far as is practicable, shall adopt and abide by the recommendation of the said Freeborn G-. Waters, as to his successor in the trust.</p> <p>Freeborn Gr. Waters acted as trustee until his death, in the year 1858. By his will, he refers to the power of nominating his successor, which was given by the last will of Charles Waters, deceased; he declares that his son, Andrew Gr. Waters, is familiar with the condition of the said trust estate, and has been associated with him in the management of the same, and he therefore gives and bequeaths unto his said son all the estate of the said Charles Waters, deceased, “so far as I may lawfully devise and bequeath the same, and not otherwise, for the same uses,” &c., &o. “And in case it shall be deemed necessary to vest the said trust estate in him by appointment of a Court of Equity, I do hereby recommend the said Andrew Gr. Waters as my successor in the said trust,” &o., &o.</p> <p>The executors of the said Freeborn Gr. Waters filed their petition, offering to account for the said trust in the hands of their testator, and recommending the said Andrew GL Waters as his successor. On the other hand, Howard and wife, and “White and wife, by their petition, objected to the’ appointment of Andrew G-. Waters, as one not personally' agreeable to them, and not, in their opinion, most advantageous for the proper administration of the trust, and! ’urged the appointment of Thomas Donaldson as trustee.</p> <p>At this time Rebecca Waters, the widow of the deceased, and who, as widow, had interests in the estate, was living; and Elizabeth Howard and Rebecca White had families of very young children.</p> <p>The Court, (Lee, J.,) in its opinion, declares that “the fitness and trustworthiness of the gentlemen nominated, cannot be doubted,” and therefore, in deference to the will of the testator, Charles Waters, and the recommendation of Freeborn G. Waters, passed an order appointing Andrew G-. Waters as trustee, in place of the said Freeborn. From this order the cestui que trusts appealed.</p>

<p>In an action of ejectment, the plaintiff claiming as trustee under the deed of an insolvent debtor, and the defendant, the said insolvent, relying upon an-outstanding title in a third parly, H., under a prior deed from himself, the grantee, H., having cotcmporaneously with the execution of the deed, given a bond conditioned for the re-conveyance of the lands conveyed, on' the payment back of the purchase money, with interest, five years thereafter; evidence was offered by parol of a contract between the defendant and II., whereby H. agreed to become the purchaser of the said-lands for the sum of §1,400, and agreed to pay judgment and other debts of the defendant to the amount of §1,100 in part settlement thereof, and' paid to the defendant §300, the balance of said purchase money; and the-defendant at the same time agreed to rent said lands of said H. for the sum-of §50 per annum. There was also evidence of the payment, on one occasion, of said rent. Held:</p> <p>1. That said evidence was admissible as part of the res gestae, and also to rebut the plaintiff’s impeachment of the deed to H., on the ground that the defendant, at the time of its execution, had it in contemplation to apply for the benefit of the insolvent laws.</p> <p>2. That the admission of said evidence worked no injury to the plaintiff, but tended to qualify the absolute character of the deed referred to.</p> <p>Where the defendant offered in evidence copies of certain bills obligatory and judgments against him, and testimony of their payment by the grantee under the first deed, and their assignment to him, to show the payment of the consideration set forth in said deed,—Held: that the evidence so offered proved nothing inconsistent with the consideration in the deed; that the claims paid by said grantee will be considered as paid by the grantor himself; and that such evidence was further admissible to rebut the impeachment of fraud.</p> <p>After the plaintiff had given evidence of the continued possession of the defendant, after the execution of the deed to H., from which fraud might be inferred, the said bills obligatory and declarations of the parties, in the presence of several witnesses, were admissible to rebut the presumption of fraud, and as to those matters may be regarded as res gestae, and as explanatory of the continued possession of the defendant.</p> <p>The deed from the defendant to H., must be regarded as a mortgage, and there being no evidence that the bond, operating as a defeasance, was re-, corded with the deed, H. could have no benefit or advantage from the recording thereof, and the deed was improperly admitted to go to the jury as evidence of title in H.</p> <p>If the deed from the defendant to H. be regarded as a mortgage, the plaintiff', as the insolvent trustee of the defendant, takes the property in dispute-into his exclusive possession and control, free from the interference of H.,. the mortgagee.</p> <p>A contract by a vendee, made contemporaneously with the deed, to re-sell to the vendor, if bona fide, does not impair the validity of the deed, nor is-it necessary that the contract of ie-sale should he recorded with the deed.</p> <p>The evidence above stated, explanatory of the nature of the circumstances-surrounding the execution of the deed to H., brought the case within the operation of the-Act of 1825, ch. 203, but from the face of said deed and bond, considered in themselves, this result does not follow.</p> <p>Notwithstanding- the jury migb,t find all the facts stated in the several prayers-in this case, yet unless they also found that the grantee, H., had notice of the insolvent condition or fraudulent intent of the defendant, the grantee’s title under the said deed could not be successfully impeached, either under our insolvent laws or under the Statute of Klizaboth.</p> <p>Where the deposiiion of a witness, taken under a commission from Chancery,in a case then pending between the parties in this cause, was offered in evidence, there being no evidence that the commission was properly returned and authenticated by 1he commissioner, or that the Court of whose-records it formed a part, had taken any judicial aetion thereon,—Held:That such deposition was inadmissible.</p> <p>Where a party, by his own admissions, or by his own proof, shows facts upon which the Court is asked to make a ruling against him, it may assume such facts to be true; because he cannot contradict them.</p>

Tliis was au action brought October the 2Yth, 185T, hy the appellees against the appellants, in the Superior Court of Baltimore city, to recover the sum of $2,223.33, the amount of State’s Attorney’s fees and compensation paid by the appellees to the State’s Attorney of Baltimore county, for services rendered in certain cases removed from the Criminal Court of Baltimore city to the Circuit Court for Baltimore county. The case is stated in the opinion of this Court.

This was an action brought May the 8th, 1858, in the Court of Common Pleas of Baltimore city, by tbe appellee, tbe widow of Simon Scbwartz, deceased, against tbe appellant, a beneficial society, incorporated by tbe Act of 1842, cb. 112, tbe said Simon having been, at the time of his death, a member of said society. The object of the suit was the recovery from the defendant of what are called funeral benefits.

<p>The offence, by a retailer, of suffering any liquors sold by him to he drank in or about his house, by Art. 70, sec. 3, of the Code, is not to be inquired of by presentment and indictment; but Courts having cognizance of the of-fence, on application or remonstrance, may withdraw from any person so offending, his or her license to sell spirituous or fermented liquors, and shall exercise a sound discretion relative thereto.</p> <p>Where, in the Court below, there was a demurrer to the indictment, and a motion in arrest of judgment, and the appellate Court find that the whole prosecution and judgment are without warrant of law, a procedendo will not be granted, there being nothing on which the writ could operate.</p>

Tbis was an action of assvmpsit, brought by tbe appellee against tbe appellant, on the 15th clay of December 1854, to recover the amount of an open account of $1,520.68. Tho appeal is from tho action of the Court below (Martin, J.) overruling a motion of the appellant to strike out a judgment by confession alleged to have been entered in the case by mistake, and to enter said judgment as a judgment of non pros. The case is stated in the opinion of this Court.