Volume 22 — Maryland Reports

The case is stated in the opinion of this Court. The cause was argued before Bartol, G-oldsborough and CochraN, J. 1. At common law the plaintiff would have been entitled to recover the penalty of the bond. By the Statute of 8 and 9 William III. the damages sustained would have been ascertained by a jury, and such should be the rule in this case.

<p>Ejectment: Estoppel: Landlord and Tenant: Lease: Tenancy by Sufferance. — In an action of ejectment the facts, which were agreed upon, in addition to such as tended to show the plaintiff’s title in fee, were: that the defendant, W. H. G., went into possession under thefollowing order of J. H. S., who was authorized by M. 0., mother of E. J., of whom the plaintiff was Trustee, by power of attorney duly executed, &c. to enter into agreements for leases of the property of M. 0., subject to her ratification: — “Messrs. "H. & S. will please surrender the part of Lot No. 116, containing 90|- acres, to W. H. C., to whom it has been leased for ninety-nine years.” Signed M. 0., per J. H. S.; that there was no evidence of ratification by M. 0.; and that after the death of M. 0., in a cause in Chancery, where the cestui que trust of the plaintiff was and the defendant was not a party, the land in question was described as in the tenancy of W. H. 0. for the term of ninety-nine years, at an average rent of $219.83 yearly. Held:</p> <p>1st. That such description cannot have the effect of a lease for ninety-nine years, nor could it operate upon the rights of the parties in said suit by way of estoppel.</p> <p>2nd. That the facts stated do not, in law, constitute the defendant a tenant for the term of ninety-nine years.</p> <p>3rd. That the possession of W. H. 0., under the said order of J. H. S., amounted only to a tenancy by sufferance, and in such case the weight of authority establishes the position that no notice or demand of possession was necessary to enable the plaintiff to maintain ejectment.</p> <p>Practice: Province of Court and Jury. — Where the facts stated in the bill of exceptions, are all admitted in writing, it is unnecessary for the jury to pass upon them.</p> <p>It is exclusively within the province of the jury to find all inferences ol fact from the facts stated, while the Court is precluded from so doing, and are confined to the facts stated; but the legal consequences or conclusions from the facts so admitted are for the Court.</p> <p>The question whether the relation of landlord and - tenant existed between parties, and whether the tenancy of the defendant was such as to make a notice to quit, or a demand of possession requisite, to entitle a plaintiff in ejectment to maintain the action, is a question of law, to be determined by the Court upon the consideration of facts agreed upon.</p>

The appellant, on the 22d of April 1863, sued out an Attachment on warrant against the lands, tenements, goods and chattels of the appellee, as a non-resident debtor, returnable on the fourth Monday of October then next ensuing.

The appellee, a judgment creditor of John C. Dorsey, issued an attachment by way of execution, on the 9th of February 1859, which on the same day was laid in the hands of the appellant as garnishee, who appeared and pleaded nulla bona, upon which issue was joined. Interrogatories being propounded to the garnishee, he answered substantially, that he owed nothing to John 0.

Tbe bill of. complaint in tbis case, filed on tbe 1st of May 1850, by tbe appellee, alleged that' bis father, Samuel Stallings, died in tbe month of May 1849, seized of certain lands, intestate, and leaving tbe complainant and tbe defendants, bis children and heirs at law, all of whom were, above tbe age of twenty-one years, and “that tbe said Samuel Stallings, deceased, left no debts whatever.” Tbe bill further charged, that tbe lands of which tbe said Samuel Stallings died…

This was an action brought by the appellees, as the administrators of Joseph A. Posey, upon the bond of the appellant, John L. Budd, as… Held: that where the circumstances relied on was because of the sex of a male negro embraced in the legacy, it was neutralized by the fact that female negroes were included in the same clause; but that case does not shake the well settled rule, that the same words in the same clause may be differently construed as they affect limitations…

This appeal is taken from an order finally ratifying an Auditor’s report and account, which rejected a mortgage claim of John F. Starr, the appellant, and distributed the trust fund in controversy to tbe appellees.

The bill in this case was filed on the gist of March 1858, by certain of the heirs at law, and the administrator of Eleanor West, for an account from Wm. D. Bowie and and Thomas H. Claggetfc, trustees of the estate of Arthur P. West, and to vacate tbe trust, which it alleges had accomplished its purpose, and for the sale for the purpose of distribution of certain real estate of Eleanor West, and of real estate in the hands of said trustees remaining unsold.

Dorsey, in March 1851, and revived by sci. fa. in March 1857. The attachment was issued on the 9th of February 1859, and on the same day laid in the hands of numerous parties to affect the right and credits of the said John 0. Dorsey, .the defendant in the’judgment.

This was an action by the appellee against tbe appellants, on their single bill, for $71.00. Tbe defendants pleaded payment by one, and also by both of the makers of tbe single bill, and issue was joined on said pleas. Exception. — -At the trial of tbe cause, the plaintiff, to sustain the issues on bis part, offered in evidence said single bill, tbe execution of which by both of said makers, was admitted.

This was a proceeding by Bill in Equity by the appel-lee against the appellant. The case is thus stated by CochraN, J., delivering the opinion of this Court.

This is an appeal by the caveator, the plaintiff below, on the trial of issues from the Orphans’ Court, from the decision of the Superior Court of Baltimore City, refusing to set aside the verdict of the jury in favor of the defendants and to grant a new trial. The case is thus stated by Baetol, J., delivering the opinion of this Court.

00, claimed to have been erroneously demanded and received from him by the Register of Wills of said City, under secs. 106 and 107 of Article 81 of the Code of Public General Laws. The facts of the case and so much of the arguments of the counsel as is material in view of the Court’s decision, are sufficiently set forth in the opinion of this Court.

,) dismissing a petition for a Mandarmis. The case is fully stated in the opinion of this Court.

Tbe injunction was to restrain “Adam Denmead, (the appellee,) bis servants, agents and employees, from selling or disposing of any portion of tbe real estate conveyed to him” by certain deeds of trust filed with the complainant’s bill as exhibits A, B, and C. The deed of trust, exhibit A, was executed on the 30th day of October 1860, whereby tbe appellant, Charlotte Withers and her children, also appellants, conveyed all their real estate and interest in said lands, and also…

This was an action brought by the appellant against the appellees to recover the amount of a draft sent by them to Josiah Lee & Co., of Baltimore, for collection, and by the latter transmitted to the appellees for the same purpose. The case is thus stated in the opinion of this Court, delivered by Bartol, J. This suit was instituted by the appellant to recover the amount of the following acceptance: Port Deposit, Aug. 6tli 1860. 0590.48'.

Stephen’s Church is a branch of the Christian Church holding the doctrines of Luther according to the Augsburg Confession; that it is governed by a pastor, four elders and eight deacons, as prescribed by the constitution filed with the petition, and adopted in 1851; that, in the month of November 1861, ho was elected and installed as pastor of the said church, and entered into a contract with the congregation for the payment of a certain salary, &c., &c.; that he entered…

The object of the proceedings as stated in the petition, was “to obtain an exposition of the rule of law which ought to guide the discretion of the Governor in his ascertainment of the result of the… Held: in the several counties and the city of Baltimore, for the election of delegates to the General Assembly. 7th.

The appellee, — defendant below, pleaded nul tiel record, and issue was joined. The record of proceedings of the Virginia Court was offered in evidence before the Court below, to sustain the issue on the part of the plaintiffs, the present appellants. The appel-lee objected to the record, and the Court'below (Nelson, J.) rejected the same and this appeal was taken from such rejection. For further statement of the case see the opinion of this Court.

) passed on the 23rd of December 1862, ratifying a sale made in pursuance of a decree of said Court passed on the 25th of September 1861. Eor further statement of the case see the opinion of this Court. The cause was argued before Bowie, C. J., and Bartol, Goldsborough, and Coohran, J. 1st. TEquitas sequitur legem. Gilb., 136.

90. The attachment was dissolved by a bond being given, the defendant appeared and a declaration was filed.

The appellees, mortgagees, under a prior mortgage of the same grantor, recorded on the same day with that to the said deceased, but some hours later, were also made defendants. The mortgaged premises were sold by a trustee, under a decree of foreclosure, which, by agreement of the parties, reserved the question of priority of lien'as between them.

The declaration wbicb is in trespass contained• four counts: 1st. For breaking and entering plaintiff’s close, called ‘'‘More-land,” cutting down and carrying away trees, cutting and digging the soil; digging up to and under tlie fences of the plaintiff and undermining them, throwing down the fences and gates, and digging near the foundation of his barn and removing the earth and rendering it insecure. 2nd.

876, containing fifty acres of land. Plea non cul. No defence on warrant was taken, and no questions of location arise in tlie case. The facts of the case are fully stated in the opinion of this Court.

The case is fully stated in tbe opinion of tbis Court. The cause was submitted to tbe Court on notes filed on both sides; Bowie, C. J., Bartol, Goldsborouuh and COCHRAN, J. It is a general rule that a Court of Error in reversing a a judgment against the plaintiff below, enters up such a judgment as tbe Court below ought to have rendered. In Geely vs. Hoskins, Oro.

the declaration, claimed to have belonged to the appellant, Caroline, and to have been acquired and held by her under the Act of 1858, ch. 245. The declaration contained four counts, the first in trover, and the second, third and fourth in trespass. The defendant demurred to the declaration and the demurrer was ruled good by the Court below, (Perry, J.,) and judgment rendered thereon for the defendant, from which the plaintiffs appealed.

’ ’ Defence was taken for part of the tract. Exception. — Tbe plaintiff gave in evidence the patent from$he State to Robert Martin, issued the 16 Nov. 1849, which recites that the tract had been surveyed for James Martin, under a common warrant issued 25th Sept. 1792; |hat James Martin had compounded for it according to 'Jaw; that James Martin died intestate, leaving Robert Martin his only child and heir, and that upon the peti- ' tion of Robert; Martin, the Chancellor…

Appeat, from tbe Circuit Court for Washington County: This was an action brought on the 25th of November 1859, by the appellees against the appellant, for the nonperformance of an agreement under seal entered into between the defendant and the plaintiffs’ intestate, which is set out in the opinion of this Court.

This was an action of Assumpsit, brought by the appellant against the appellee, on the 14th of October 1853. The declaration contained the usual counts in indebitatus assumpsit omitting the quantum meruit. Pleas non-assumpsit and limitations. The cause has twice before been considered by this Court on appeal. The case of the first appeal is reported in 10 Md. Bep., 197, and the second in 13 Md. Rep., 3*79.

” The defendant appeared, entered into the consent rule and confessed lease entry and ouster. Plea non cul, and defence on warrant. At the trial of the cause, by agreement filed, the defence on warrant was waived, and it was agreed that the case should be proceeded with under the plea of not guilty, as if the defence on warrant had never been taken.

Stickle, the principal, (who was returned “not found,”) and the appellee, as his surety. The nar. after setting out the bond and the proceedings in the action of replevin between the principal, Stickle, and the appellant, in which judgment of “retorno habendo” was awarded for the defendant, concludes with the usual breach, that the said Stickle did not prosecute the writ of replevin with effect, etc.; to which the appellee pleaded: 1st. General performance. 2nd.

129. The declaration recites in full this Act of Assembly. The defendants pleaded: 1st. That the Act of Maryland of January 23rd 1832, ch. 85, was a compact between Maryland and tlie United States, which Maryland could not change or alter, and that therefore tbe suit could not be sustained. 2nd. That tbe Act of 1852, ch. 129, was repealed by tbe adoption of the Code. 3rd.

The allegations of the bill and facts of the case, are fully stated in the opinion of this Court. The cause was argued before Bowie, C. J., and Bartol, G-oldsborougii, and OoohraN, J. 1st. Do tbe facts authorize the Court to decree a divorce a ‘■’■mensa et thoro?” We say they do, showing: “first, cruelty of treatment; and secondly, excessively vicious conduct, abandonment and desertion,” (the causes stated in the Act of 1841, ch. 262, sec. 3.) As to the cruelty of treatment.

The appellees filed their petition on the 15th day of September 1863, in the Orphans’ Court of Prince George’s County, praying the Court… Held: “that under the Act of 1798, ch. 101, at any stage of the proceedings before final adjudication, either party may require an issue, and the Orphans’ Court is not at liberty to refuse it.” Section 250 of Art. 93 of the Code, under which the issues were prayed, is> the same as the provisions of the Act of 1798, cb. 101, and tbe right…

Tbe bill in this case was filed on tbe 22nd of September 1864, by tbe appellant, who was a grand-child, and one of tbe devisees of William Young, deceased, whose widow, Maria Young, is one of the defendants. Tbe appellant was also a nephew and tbe heir at law of William H. Young, deceased, whose widow, Adeline Jane Young, is also one of tbe defendants.

■ Appeal from the Circuit Court for Caroline County: . This appeal is from an order passed on the Law side of the Circuit Court for Caroline County ratifying an auditor’s report and account distributing the proceeds of sale of the- real estate of an insolvent debtor.

Tlie appellants wore indicted at the October Term 1862 of tlie Circuit Court for Anne Arundel County, for a violation of sections 1 † and 18, of Article 11, of tbe Code of Public G-eneral Laws, in taking oysters from the “depot” of Benjamin Davis. Tbe traversers demurred to the indictment; the Court below, (Bbewer, J.,) overruled the demurrer, and the verdict being against them, they prosecuted tbis appeal.

The bill in this case was filed on the 26th of June 1854, by the appellant against the appellees, negroes Caroline and Solomon, and others, to set aside as fraudulent and void as against creditors, a deed of manumission executed by the appellant’s intestate, on the 16th of January 1833, manumitting the said negroes.

The inducement set out in the declaration is briefly as follows: That the defendant, on the 21st October 1852, sold to the plaintiff a certain piece of land with a mill thereon, for $5,000, for which the plaintiff paid $2,500 in cash, and confessed a judgment for $2,500, the balance of the purchase money, with a stay of execution to the 1st October 1857; that the mill had been used by the defendant as a grist and merchant mill, and was intended so to be used by the plaintiff…

Ejectment brought, April 2d, 1855, by the appellee against the appellant for a tract of land called “Holly Hill.” The declaration contains two counts, the first for the whole of this tract, and the second for an undivided moiety thereof. The case is now before this Court for the third time. The decision on the first appeal is reported in 13 Md. Bep., 415; on the 2d, in 17 Md. Bep., 212.

This appeal is taken from an order of the Circuit Court for Prince George's County, sitting in equity, dated 21st April 1863, and granting an injunction to prevent the appellant, Blackburn, the administrator of Dr David Craufurd, deceased, from making distribution of the estate of his intestate.

This was an action of debt on an administration bond instituted on the 24th of September 1859, by tbe appellee against tbe appellants. The record shows that Robert Harrison of Robert, who, in the year 1851, resided in Calvert County, in this State, was, in tlie month of December in that year, married, in Washington City, in the District of Columbia, to his niece, Martha Harrison, at that time also a resident of Maryland.

Tbe appeal is from an order overruling a motion to quash tbe attachment, made by the appellant, on tbe ground of the insufficiency of -the alleged cause of action produced before tbe Justice of the peace by whom the warrant was issued. Tbe facts of tbe case are sufficiently stated in tbe opinion of this' Court. .

The bill of complaint in this case was filed by the appellant against the appellees on the 27th of July 1858. The material allegations of the bill, the terms of the will involved in the matters in controversy, and the facts of the case, sufficiently appear from the opinion of this Court. The Court helow, (Price, J.,) dismissed the hill of complaint, and the complainant appealed.

This was an action of trespass vi et armis brought by the appellee against the appellant, to the November term 1854. Held: cannot by dedication or prescription, become a public way. Woodyear vs. Hadden, 5 Taunt., 126, 140, 141, 142. Wood vs. Veal, 5 B. & Aid., 456, 451. Holdane vs. Spring Village, 21 N. Y., 414. Again, there is no evidence of immemorial use as a highway.

Appeal fro.m the Circuit Court for Baltimore County. This cause was argued with the preceding before Bowie, C. J., and Goldsborough, Oooiiran, and Weisel, J.

This appeal was taken on the 16th August 1860, from a decision of tbe Opmmissioner of tbe Land Office, rendered on the 18th of November 1859, overruling a caveat •filed by tbe appellant to tbe issuing of a patent’ to the appellee for “Mud Island.” A common warrant was issued out of the Land Office to the appellee, on tlie 3rd of February 1836, for ten acres of land.

The bill of complaint in this cause was filed on the 7th of January 1847, by the appellant against the appel-lees, on the equity side of Baltimore County Court. Separate answers were filed by the respondents, Riely and Horsey, and testimony was taken under a commission and returned. Afterwards, upon tbe suggestion and affidavit of the complainant, and order of said Court, the proceedings were upon the Yth of June 1848, removed to the High Court of Chancery.

Assumpsit by the appellants against the appellee for the sum of $527.71, upon a promissory note drawn by W. T. Foster & Co,, and endorsed by the appellee, dated the 6th of February 1861, and payable twelve months after date with interest. Plea non assumpsit, upon which issue was joined. The facts of the case are fully stated in the opinion of this Court.

This is'an appeal from an order of the Circuit Court for Frederick County as a Court of Equity, ratifying an auditor’s account. The facts of the case are fully stated in the opinion of this Court. The cause was argued before Bartol, Goldsborough, and CochraN, J. The only question upon the record arises on the petition of Montgomery Johns, as executor of John Johns, to be substituted to the benefit of the mortgage of indemnity to Mrs. Sophia Fitzhugh.