Volume 20 — Maryland Reports

So much of the pleadings and evidence as is essential to a proper understanding of the points decided, is stated in the opinion of this Court. The cause was argued before Bowie, C. J., apd Goldsboroush and Cochran, J. Admitting that the City Commissioner and other officials were aware of the departure from the contract and did not object to it, the Mayor and City Council would not have been compromised thereby. Mayor & O. G. of Balto., vs. John Eschback, 18 Md. Bep., 282.

323, to recover the amount of three promissory notes. The case is stated in the opinion of this Court. The cause was argued before Bowie, C. J., and Bartol, Goedsborough and Cochran, J. 1. That the order of the 31st January having determined against the right to remove, it was the subject matter for an appeal. 2. That, after the prayer of appeal, there was nothing left for the further proceedings of the Court to be based upon. 3.

<p>Fire Insurance Policy, Construction oe. — Whore a policy of insurance provides that, “goods held in trust or on commission arc to be declared as such, otherwise the policy will not extend to cover such property,” and it appears that the insured have obtained their insurance without making any specific statement of the nature of their interest in the goods destroyed; Held:—</p> <p>1st. That the insurer has a right to limit the extent of the risk by such condition.</p> <p>2nd. That a knowledge of that condition by the insured must be presumed from their acceptance of the policy, and it will have the effect of limiting the risk to the goods which belong to them.</p> <p>Where the policy is entirely "consistent with the terms of the application, free from ambiguity, and susceptible of a consistent construction in all its parts, and if there be a mistake in the insurance effected it he not attributable to the insurer, the Court will not look beyond the terms of the policy in ascertaining its meaning and, legal effect.</p> <p>Loney and Co. were insured in a Baltimore Company on their own goods, and in sundry foreign companies on their own goods and goods held on commission. The policy in the first company contained a clause that “the insured shall not in case of loss or damage bo, entitled to demand or recover on this policy any greater proportion of the loss sustained than the amount hereby insured, shall bear to the whole amount of the several insurances.” The whole insurances were insufficient to cover the value of the goods lost. The Baltimore Company refused to pay more than the proportion of the losses as stated in the above clause; Held, that the for-, eign policies were not within the? effect of the covenant relating to other insurances, and that the Baltimore Company is not entitled to any obatemoni of its liability on this policy hy reason of them.</p> <p>Waiver, Interest.' — A policy provided for the payment of losses within sixty days after the same should be ascertained and proved. The loss was proved and demand of payment made within the time limited. The loss was also admitted by the insurance company, which offered payment of what it assumed to be the amount of its liability, but refused payment of the full amount of the insurance; Herd: That the condition as to the time of payment was waived, and that the sum for which the insurers were bound, became due and recoverable with interest from the date of the demand.</p> <p>Contribution. — The right to contribution is based upon the concurrence of the policies, and the necessary incident of its existence is, that the several insurers should be bound with equal certainty, and in the same sense for the same loss.</p>

The defendants pleaded the general issue, and an agreement was afterwards filed waiving all errors of pleading and allowing the defendants… Held: “that the vessel, crew and equipments, having been originally sufficient,” that is to say, having been sufficient at the out-set, “they considered the assured had done all he contracted to do; and the underwriters, therefore, must be liable for the loss which, though remotely referable to the misconduct of the master and crew, was…

,) resulting from an equal division of this Court upon tho points then in controversy. The motion was submitted to the Court, Bowie, C. J., Bartol, Goldsborough and Cochran, J., without argument.

The complainant below, (who is the appellee here,) by bis bill of complaint states, that be is a creditor of Elizabeth Erisby, deceased, on promissory notes of which copies are exhibited with the… Held: ‘That this was a voluntary conveyance to the extent of the excess of the value of the land over $5,000 and was therefore void, as to creditors who wore such prior to and at the date of the deed.

, of Robert McEldowney, which was laid in the hands of Robert Moore and Charles Moore, partners, trading under the firm of Robert Moore and Brother.

<p>Injunction 1>on:o — Action on: Public Streets;. — Tho Mayor & City Council of Baltimore having provided by ordinance for the opening a street to pass through the lands of A and B, B filed a bill for and obtained ari injunction to prevent the opening of said street; one of the conditions of-his injunction bond being for the payment of “all damages occasioned by the granting of the injunction.” Tho injunction was finally dissolved and th<? bill dismised by the Court of Appeals. A afterwards sued B upon the inr junction bond, claiming damages to the amount of an alleged depreciation in the value of his land between the issuing of the injunction and itp final dissolution, on the ground that the injunction prevented-the sale of his land for building lots at the price that could have been obtained for them at the time of the granting of tl.e injunction if the street had,bgen then opened; Held:</p> <p>1st. Thai the claim of A could only be sustained on the ground, that the injunction operated to infringe or deprive him of some vested legal right which the bond was intended to protect.</p> <p>2nd. That under the ordinance for opening said street passed by authority of the Act of .1838, ch. 266, neither tho public nor any private citizen could acquire any privilege or right to its use until the actual opening ?.nd s.ur¡» render of the street to the public.</p> <p>3rd. Limiting the liability of the appellant E to such damages as might have arisen from the suspension or invasion of vested legal rights by the. injunction, the appellee A sustained no injury for which he could claim redress by an action on said bond.</p>

D. 1855, by the appellee against the appellant, and ten others, describing them as vestry-men of Saint Stephen’s Episcopal Church of Baltimore City. The narr. in addition to the common counts, contained one special count upon n promissory note.

The case was heretofore before this Court on an appeal by the present appellees from the orders of the Court below refusing to dissolve and continuing the injunction until final bearing, and will be found reported in 18 Md, Hep., The cause was argued before Bowie,*O. »!., and Babtol, Golusborougju and Cochran, J. After the trial of the motion to dissolve, twice in the Court below, and once upon appeal in this Court, an entirely new defence has been taken, never before heard…

Aureal from tbe Orphans’ Court of Baltimore City : Tbis is an appeal from a judgment of tbe Orphans’ Court of Baltimore City, in favor of the appellees in tbe matter of a petition filed in said Court by tbe appellant. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. The cause was argued before Bartol, Goldsborough and Cochran, J. .1st. A demurrer goes bach to the first error in pleading. Yingling vs. Hoppe, 9 Gill, 313. All the counts are defective in not stating the road and bridge to be in Cecil County; from the description in the indictment the bridge may be in the State of Delaware.

Upon these allegations the Court ordered an injunction restraining the appellant from committing injury or waste upon tho premises, and from removing the crops growing on the farm for 1861.

The facts of the case, as well as the arguments of counsel thereon, are sufficiently stated in the opinion of this Court. The cause was argued before Bowie, C. J., and Bartol, G-olbsborough and Cochran, J.

The caso is staled in the opinion of tins Court. The cause was argued before Oowra, C. J., and Bártol, Goldsisokougii and Cochran, J. 1st. That the Orphans’ Court had no jurisdiction to pass the order of the 12fch of August 1862. 2nd. That the devisees in trust having renounced the trust and refused to act under the will, it was impossible for the administrator to pass a final account. 3rd.

Tbe case is stated in the opinion of this Court. Tbe cause was arg’ued before Bowie, O. J., and Golds-borough and Cochran, J. 1.

The injunction was issued as prayed, but afterwards, upon motion dissolved; and from the order dissolving the injunction, the complainant appealed. The material allegations of the bill and answer, and the testimony in the cause, are set forth in the opinion of this Court. The cause was argued before Egwth, O. J., and GtOldsbobougii and Oocttran, J. The case presents two questions for the consideration of the Court: 1st. Was the contract made as stated?

The case is stated in the opinion of this Court. The cause was argued before Bowie, C. J., and Bartol, Goldsborough and Cochran, J. It would seem to be established, that where a trustee or executor has used good faith in the exercise of a fair discretion, in the same maimer as he would ordinarily do in regard to his own property, he ought not to he held responsible. 2 Story’s Fq., sec. 12l72, &e. Thompson vs. Brown, 4 Md. Gh. Dec., 619.

The opinion of the Court below (Krebs, J.) will be found to contain a full statement of the pleadings and evidence in the cause and the questions arising therefrom; “The relief prayed by the complainant in the bill filed in this case, is, that the Court will decree the proceeds of the sale lately made, of the furniture and effects of the G-ilmor House, or so much thereof as may be necessary to be applied to the payment of his mortgage'claim set up in the proceedings.

Louis according to the terms of a special contract set out in the declaration. To this declaration the appellee pleaded six pleas; and an agreement was afterwards filed by which all errors of pleading were waived. 1st Exception.

& Ohio R. R. Co., from one point to another of their road in the performance of his duties as laborer, in which capacity he was employed by the company. The pleadings in the canse are set out in the opinion of this Court. Exception.

55, in' Frederick City, brought on the 11th of October 1856, by the appellee against the appellant. Plea non end, and defence on warrant.

1858, and made returnable to the Circuit Court for Frederick County, — fieri facias having been first issued on said judgment and returned nulla bona. On the 11th of November of the same year, the attachment was laid by the sheriff of Frederick County in the hands of George S. Groshon, the appellant, who was summoned as garnishee of McPherson and Thomas, and appeared by counsel.

The attachment was sued out against Samuel D. Rees, Jacob Rees and Alford Ross as partners, and as nonresident debtors, upon an. alleged claim for $5552.29. This attachment was laid in- the hands of Matthews and Zollikoffer as garnishees; they appeared as did also the defendants. The latter severed in defence, and the defendant Ross persisted in his defence, while the Messrs. Rees confessed judgment.

Writ of Error to the Circuit Court for Washington County: This was a proceeding under Art. 13 of the Code, by indictment, charging that the appellant was “the father of an illegitimate male child, at the county aforesaid, contrary'to the form of the Act of Assembly in such case made and provided,” &c. The defendant filed a plea to the jurisdiction of the Court to which the State demurred, and the Court below (Perry, J.) sustained the demurrer.

The appellant insisted that a previous order of said Court, passed on the 5th of February 1862, was also open for review on the same appeal, but it not appearing from the record that any appeal from said order was taken within thirty days, under the Act of 1818, ch. 204, this Court held that the last of the said orders was not open for review. Such portions only of the arguments of the counsel therefore as apply to the order of April 12th will be noticed.

The attachment was issued on the 15th day of July 1857, and was laid on the same day in the hands of Lewellyn F. Barry, as garnishee. The garnishee having appeared pleaded non assumpsit, on behalf of the defendant; and nulla bona in his own behalf. Issues were joined on replications to these pleas. Interrogatories were propounded by the plaintiff to the garnishee, and these were answered by him.

The defendant pleaded 1st, “not guilty,” and 2nd, “that the said wall at the time of the institution of this suit, was and still is the property of the defendants.” Upon these pleas the plaintiff joined issue. At the trial the second plea was virtually abandoned. The evidence so far as is necessary to illustrate the point decided, is stated in the opinion of this Court.

The bill of complaint in this case was filed on the 28th of December 1859, by the appellees, terre-tenants and executors of William Ditto, against the appellants.

15, with interest from March 2nd, 1864, for work and labor done by, and money had and received for, the use of the plaintiff. The defendant pleaded that “he never was indebted as above alleged,” upon which issue was joined. The case is stated in the opinion of this Court. The cause was argued before Bartol, Golbsborough and Cochran, J. Story on Coni., sec. 739. Story on Sales, 234. Menetone vs. Athaioes, 3 Burr., 1592. Gregory vs. Stryker, 2Denio, 628.

Woods, and John Lee Chapman, acting Mayor of the City of Baltimore, constituting the then Board of Police of said city, and the Mayor & O. O. of Balto., appellants, against Charles Howard, William H.… Held: appropriated and disbursed by said Board of Police in their discretion, for the purpose of discharging the duties by law imposed on them. Mayor, &c., vs. Board of Police, 15 Md.

Rep., 532. It was then, as bow, an action of ejectment, instituted in the Superior Court of Baltimore City, by the appellees, as plaintiffs, alleging themselves to be eight of eleven heirs at law of Rachel Colvin,'and claiming a large amount of real estate, in different parts of the City of Baltimore. To defeat the claim of the appellees, the appellant gave in evidence two wills of the said Rachel, duly executed to pass real estate. One was a will dated the 6th of.

103. The case is fully stated in the opinion of this Court. The Court below (Marshall, J.) having ordered that the writ should issue as prayed, the defendant appealed. The cause was argued before Bowie, O. J., and Bartol, Goldsborough and Cochran, J. 1. No lease-hold interest subsisted in the appellant to be affected by the fi. fa.

Coolc is indebted to the estate of Sarah A. Weigart;” and “second, and if indebted, to what amount he is so indebted.” Before the trial of these issues the defendant filed a plea of the statute of limitations, which on motion of the plaintiffs was stricken out. The defendant thereupon moved for a continuance of the cause, but said motion was overruled.

The causo was argued before Barton, (xOLUSboroctcíh and Cocks.an, J. 1. A greater fraud could not be perpetrated upon a party than ¡night aviso from the action of the Orphans’ Court in this case. To allow one party to send what issues he pleases, and to deny to the other party the issues involving his defence, is monstrous injustice. 2. The Code expressly provides that either party may have issues made up and sent, and the Courts have so decided. Code, title Test.

,> passed on the 11th of March 1859, directing the payment to William T. Sellman, the surviving husband of Ann Virginia Sellman, of his… Held: that by the sale and ratification and passing of bonds for the purchase money, the lands were transmuted into an equitable chose in action of the stirpes, and as to that part of proceeds as to which no order of distribution had been passed at the husband’s death, the husband’s representatives had no claim, but that it belonged to the…

) passed in a case of insolvency, sustaining exceptions taken by the creditors of the insolvent debtor to the auditor’s report distributing the proceeds of sale of certain negroes claimed by the trustee as belonging to tbe estate of tbe insolvent, and also claimed by tbe appellant, tbe daughter of the insolvent debtor, kas having been tbe joint property of herself and her deceased mother Sarab Wright.

Whit oe Error to the Criminal Court of Baltimore City : This appeal is from a decision of the Criminal Court of Baltimore City (Stump, J.) over-ruling a motion to discharge the appellant on the ground that ho had already been once placed in jeopardy for the same offence, and for other reasons filed. The case is fully stated in the opinion of this Court.

1722, ch. S. The defendant pleaded not guilty. Exception. At the trial of the cause the plaintiffs proved that in 1835, one Griffith sold and conveyed to George Kennard four or five acres of land by two deeds, described in the deeds as part of a tract called “Gravelly Bottom/'’ and that the black oak tree mentioned in said deeds as a boundary, was cut and destroyed by the defendant.

) refusing to grant a mandamus prayed for by the appellant, requiring the appellee to levy on the assessable property of Allegany Gounty, the ■sum of ten thousand dollars, for the support of the common schools of said county, for the year ending July 1st, 1861, and also the estimate that might be made by the appellant for the same purpose for the year ending July 1st, 1862; and also dismissing the petition of the appellant with costs to the appellee.

by the defendant with the plaintiff, “to pay him the expenses of seeding a crop of wheat on a farm purchased by the defendant of the plaintiff, and in consideration of which-the plaintiff put the defendant in possession of said property.” The declaration also contained all of the common-counts in assumpsit. The defendant pleaded the general issue, to the various counts, and the statute of limitations in different forms; and issues were joined on all the-pleas.

Appear from the Circuit Court for Anuo Arundel County: This was an action brought on the 10th of August 1859, by the appellee against the appellant, to recover the value of a horse killed while being driven over one of the public roads in Anuo Arundel County, alleged to bo in bad repair.

Appeal fronj^the Equity side of the Circuit Court for Anue Arundel County : Tbe bill in this case was filed by the appellant on the -equity side of tbe Circuit Court for Anne Arundel County, against Ricliard Crandall, on the 14th of April 1851. The defendant having died during the pendency of the suit, the appellees, as his devisees, were made parties.

By the supplement to the Code, Article 81, page 64, it is enacted that the Mayor & City Council of Baltimore, in the year 1862, and annually thereafter, shall impose a tax for the use of the State, of twenty-five cents on, every hundred dollars worth of assessable property within its jurisdiction, according to the valuation thereof.

<p>Orphans’ Court — Appeals from. — There is no limitation of the right of appeal from Orphans’ Courts, in this State, by reason of the amount involved. “In all decrees, orders, decisions and judgments made by the Orphans’ Court, the party who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the Court of Appeals, within thirty days after such decree,” &c. .</p> <p>The maxim “de minimis non curat lex,” cannot prevail against an express statutory provision.</p> <p>Orphans’ Court — Practice in. — Where, in a case pending in the Orphans’ Court, after petition and answer filed, testimony was taken on both sides and reduced to writing at the moment by the Court, without objection, it not appearing at whose instance it was done, it was Held, that there was a sufficient compliance with sec. 40, of Art. 5, of the Code.</p> <p>Executors — Commissions and Compensation of. — Executors are entitled to no profits on the proceeds of sale made by them, beyond the commission allowed by law: the premium received by them on the sale of gold coin, a part of the proceeds of sale of the real estate of their testator in their hands, belongs to and must be accounted for as part of the estate of such testator.</p>