Volume 23 — Maryland Reports

It appears from the record in this case, that in pursuance of a decree of the Circuit Court for Baltimore county, sitting as a Court of Equity, John M. Gordon, as trustee, offered at public sale, on the 14th of September 1852, the “Phoenix Factory, a large cotton factory in Baltimore county, and the appellants, being the highest bidders, became purchasers thereof.

The hill of complaint in this case was filed by the appel-lee against the appellants, for an injunction to restrain them from cutting and removing the wood and timber on a tract of land called “Allcock’s Ghcmce.” The material allegations of the hill and the facts of the case are stated in the opinion of this Court.

Ceoss-Appeals from the Equity Side of the Circuit Court for Baltimore county. Held: that although a surviving share will not survive again, it passes under the will to the descendants of a surviving child. There can he no good reason for such a distinction, for in neither case does the-will specify surviving shares. If a surviving share does not survive again, it should not pass to descendants.

The circumstances under which this motion comes before the Court at this time, are thus stated by Baiitol, J., in delivering the opinion of the Court: “After this appeal was heard at the June Term, this Court affirmed the ruling' of the Superior Court set forth in the bills of exceptions, and ordered the writ to be issued in the peremptory form. It was issued on the 29th day of October 1864, and made returnable to the December Term.

This was an action brought by-the appellee against the appellant, on the 1st of March 1861. The declaration contained throe counts; the 1st and 2nd in case for slander of the plaintiff’s title as owneT in fee-simple of a tract of land situate in Baltimore county, called “Nackey Ford’s Lot,” and being part of “ Stansbury’s Plainsthe 3rd, in trespass guare clausum fregii for trespass on the same land. The defendant pleaded the general issue.

This appeal is taken from an order of -tbe Circuit Court for Caroline county, sitting as a Court of Equity, finally ratifying a sale of certain mortgaged premises, made on tbe llth day of December 1860, by Thomas Kemp, as agent and attorney of the appellees, in certain proceedings under Art. 64, secs. 5 and following of the Code of Public General Laws.

On the 19th day of December 1843, during the life of Walter Billingslea, Sr., the devisee for life, under the will of Walter Billingslea, deceased, of certain real estate mentioned in the will, Pue and wife filed their bill on the Equity Side of Harford County Court, against John T. Baldwin and wife, and others, children of Elisha Bull, deceased, alleging that the complainants and defendants are jointly entitled to the reversion in the lands now in the possession of Walter…

Tbe bill of complaint in tbis cause was filed by tbe appellant on tbe 29tb of May 1852, for tbe purpose of obtaining an injunction against tbe appellee, Boman, restraining bim from making sale of a lot of ground lying on Baltimore street, in tbe town of Cumberland, and adjoining tbe depot of tbe Baltimore & Ohio Bailroad, with tbe improvements thereon, known as the “Bevefe Housewhich said lot and premises bad been conveyed. to tbe said Boman by deed of trust of April 14th,…

This is an appeal from an order of the Circuit Court for Cecil county, sitting as a Court of Equity, granting the •application of the… Held: that “the proceedings in the Court of Chancery must be regarded as the commencement of the controversy, and that it drew to the Court of Chancery the whole litigation, in regard to the distribution of” the particular estate involved, “more especially as the injunction there was intended to prevent Albert and wife from securing to…

This was an attachment on-ioarrant, issued at the instance of the appellant against E. Le Breton & Co., to recover $9,578.58 damages, claimed by the former from the latter, for alleged delay in selling a cargo of flour, and failure to invest the proceeds in a return cargo of coffee.

The hill in this case was filed on the 10th of January 1860, by the children of William H. Wilson, deceased, alleging that their father died intestate in the year 1845, seized and possessed of certain real estate in Cecil county, and of certain personal estate; that soon after his death, one Alexander Wilson, brother of the deceased, pretending great friendship and interest for his deceased brother’s widow and infant children, (the eldest of whom was then about nine years of…

An attachment on judgment was issued by the appellant on the 3rd of May 1860, to affect the rights and credits of Grit-tings, Allnutt & Co., which, on the 4th of May 1860, was laid in the hands of .

The action in this case was instituted to recof er a sum of money alleged to he due to the appellants from the appel-lee, for digging an Artesian well in Baltimore city. The declaration contains a special count and the common counts, and to these the usual pleas were put in,, denying the contract in said declaration. A trial was had, and the jury rendered a verdict in favor of the defendant.

The original bill in this cause, was filed in the Chancery Court on the 3rd of June 1851, by the appellants, assignees* and grantees of the original vendors of certain real estate? against the vendee, for a sale of said real estate for the payment of the balance of the purchase money.

Appeal-from the Superior .Court of Baltimore city. This is an appeal from a judgment of the Superior Court of Baltimore city, in favor of the defendant, in an action of ejectment brought by the lessor of the plaintiff for the recovery of a tract of land called “Stewartsylvania.” The defendant pleaded not guilty, and took defence on warrant, and a survey was made and returned. The facts of the case are fully stated in the opinion of this Court.

AppbaIj from the Circuit Court of Baltimore city. A hill in equity was filed by the appellee on the 29th of May 1358, against the appellants and Thomas J. Cunningham, in his own right, and. as executor of- Abigail Cunningham, and also against certain persons, creditors of said Thomas A, Cunningham, who had caused executions issued by them on judgments against said Thomas A, Cunningham, to be levied on certain property, and which. property they were about to cause to be sold…

Ceoss-Appeals from the Circuit Court for Baltimore city: Solomon G-.

This is an appeal from an order of the Court of Common Picas for Baltimore city, directing the Sheriff of that city to pay to Mary Wilkes, her attorney or agent, the sum of §150, out of the proceeds'of two executions in his hands, at the suits of Vanderpoel and Smith, and Temple M. Washington, against Angus Williamson.

Appear from the Superior Court of Baltimore city. The facts of this case are sufficiently stated in the opinion of the Court. The appellant will contend, as to the first and second hills of exceptions : That 'as to the evidence therein admitted, it is irrelevant, and res inter alios acta.

This was an action hy the appellant against the appellee, “for money payable hy the defendant to the plaintiff for goods bargained and sold hy the plaintiff to the defendants,” with the other usual money counts.

<p>Petition filed in the Court of Appeals of Maryland.</p> <p>This was a petition filed in this Court, asking the Court to pass an order requiring tho Clerk of the Criminal Court of Baltimore city to make out and transmit to the said Court of Appeals a transcript of the record in d Habeas Corpus case in said Criminal Court, wherein Sarah Coston, the mother and next friend of Simon Coston and Washington Coston, was petitioner, and the said Samuel S. Coston respondent; in which case the said Samuel S. Coston had prayed an appeal from an order of the said Criminal Court, discharging the said Simon and Washington, hut which said prayer of appeal had been overruled by the Court below, (Bond, J.,) on the ground that no appeal lies in cases of Habeas Corpus. With the petition were filed certified copies of the papers filed in the Habeas Corpus case, the contents of which need not here be particularly set- forth, as they will fully appear in the case of Coston vs. Coston, hereafter to he reported.</p> <p>The points argued in the matter of the petition are much more elaborately presented in the written arguments submitted in the Habeas Corpus case, afterwards brought to this Court on writ of error, and decided at the April Term 1866; it is, therefore, deemed unnecessary to present them here.</p>

William Jackson, deceased, and ordering that in such distribution 'there he awarded to Margaret H. T. Hooper, one-tenth part of the entire balance of the estate in the hands of - the administrator, including the proceeds of the sale of the real estate of the deceased, as sold by his executor, under the directions contained in the will of the deceased, and charging the administrator with interest, according to statement C, filed in the case.

<p>•Code, Abt, 1, .Sec. 4, and Am. 93,"Sec. 11: Executoes and Adminis-tbatobs: Oephans’ Coubt, Jttbisdiction of: Lapse of Time. — The heirs-at-law of Z. M. filed, in 1864, their petition in the Orphans’ Court, alleging that it appeared, from an account passed said Court, in 1848, that O. M. , as administrator of Z. M., had received and retained in his hands the sum .of §600, and that he had afterwards, in 1854, received and retained the further sum of $235.95, which sums had never been accounted for or distributed by the administrator, in his life time, or since, by his executor, and praying that said executor might be compelled to pass an account of the estate of Z. M., charging his testator with said sums, and that the same be paid t,o the petitioners. Heed:</p> <p>1st. That the case presented by the petition was clearly within the purview of Art. 93, sec. 11, and Art. 1, sec. 4 of the Code, and said executor was bound thereby to pass the account called for by the petitioners; and that by sects. 230 and 231 of the same Article, the Orphans’ Court had full power to compel him to perform that duty.</p> <p>2nd. That in such a case, the mere lapse of time raises no presumption against the jurisdiction of that Court to hear and determine the matter in dispute, nor of an accounting and settlement that can be availed of by the executor as a bar to the claim asserted by the petitioners.</p>

This was a bill in equity, filed on tbe 12th December 1862, by the appellants, against the appellee, Levering, for an injunction restraining the said appellee and the Sheriff from proceeding to sell certain property of Daniel C. Bruce, levied on under a judgment obtained by said appellee against said Bruce, the appellants claiming to have been prior mortgagees of the same property.

The appellee filed a petition on the 16th'May 1863, praying for a mandamus, to be directed to the President and Directors of the Fireman's Insurance Company, a corporation located and doing business in Baltimore city, requiring the President of said Company to return to the Appeal Tax Court of Baltimore city, a list of the stockholders of said Company, with the place of residence of each stockholder, and the amount of stock held by each.

The plaintiff, as administrator of his father, brought this action to recover the value of certain peach trees. The contract for the trees was made by the plaintiff, in March 1857'. The farm and nursery whereon the trees were growing, was owned in fee-simple by James S. Peters, who died on the 12th of October 1856.

This is an appeal from an order of the Orphans’ Court of Baltimore city, revoking the letters of the appellant, as administrator de bourn non, with the will annexed of William Young, deceased, and granting such letters to the appellee.

This cause was heretofore before this Court, on an appeal from an order dissolving an injunction, having been heard below on a motion to dissolve, upon bill, answer and proof taken… Held: that in order to render a street that has even been fully marked out, and in fact opened on the ground, (that is, used as a street,) a street in law and technically, the foe must in some way be vested in the city. Matter of Seventh' St., 1 Wend., 262. Matter of Lewis St., 2 Wend., 472.

The original nar. was amended, and, as amended, contains two counts, and sets out as cause of action, a certain agreement between the parties to the effect recited in the nar. as ibllows : “Wc, whose names are hereunto written, in case a contract is made between the Northern Central Railway Company and George M. Lauman, Isaac Eckert and J. Hall Pleasants, for the completion of said road between Sunbury and Canton, do severally agree to and with the said last named parties,…

The facts of this case are sufficiently stated in the opinion of the Court. 1 st. The defendant was not liable for the neglect or default of any of the other carriers. By the express terms of the contract, declared on the face of the ticket, the defendant was only liable for breach of the contract on its portion of the route; that is, for its own failure of duty. Nutting vs. Connecticut Biver B. B. Co., 1 Gray, 502. Van Sant-voord vs. St. John, 6 Hilt, 15*7.

Wb.it op EitROR, from the Criminal Court of Baltimore city: Tbe facts of Ais case 'are fully stated in the opinion of this Court.

Attachment on warrant issued from the Superior Court of Baltimore city, on the 8th of July 1859, to effect the credits, &c., of Eliphalet H. Merrill, and laid in the hands of Robert B. Griffith, garnishee. The facts of the case are very fully stated in the opinion of this Court. 1st. The short note in attachment is a sufficient declaration, as well in case tlxe defendant comes in and dissolves it by giving bond, as in case he does not.

Tbe facts of tbis case are sufficiently stated in tbe opinion of tbe Court: 1st. Conceding tbe right of the State, since tbe decision of Brown vs. Kennedy, 5 M. & J., 195, and Oasey vs. In-loes, 1 Gill, 430, to grant land covered by navigable waters, so as to cut off water-front proprietors, in Baltimore city, from tbeir franchise of improvement under tbe Acts of 1145, cb. 9, sec. 10, and 1184, eh. 39, sec. 6; yet it does not follow, tbat because the State may, it or its…

The bill of complaint of the appellees, filed on the 6th day of February 1865, alleged, that hy the Act of 1888, ch. 226, power was conferred upon the Mayor and City Council of Baltimore to provide for laying out, opening, extending, widening, straightening and closing up, in whole or in part, any street, lane, square, alley or alleys, within the bounds of the city, which, in their opinion, the public convenience might require; and the Mayor and City Council of Baltimore,…

The hill states, that at the time of the filing thereof, the complainant was, and for more than a year prior to that time had been, engaged in business in the city of Baltimore, as a retail dry-goods… Held: that “the mere apprehension of injury, arising from the inter-mixture of the debtor’s goods with those claimed by the plaintiff, and to which intermixture he tacitly consented,” was not sufficient to sustain an injunction.

Primrose and ten others, dated the 22nd of Eehruary 1853, which was duly executed and ac;-knowledged according to law, and recorded in the… Held: and it was thought best to make the publication shortly afterwards, and it avers that it is not true that the notice was given, because the fact of the passage of such resolution had become known to the petitioner, or because' of any apprehension of legal proceedings on his part, but that on the contrary, the notice was given, as…

The facts of tliis case are fully stated in the opinion of this Court. The indictment is contrary to law. Enticing and persuading a negro apprentice to abscond, is made criminal, and punished as a misdemeanor or felony, in the discretion of the Court, by sec. 30, Art. 6, Md. Code Pub. Gen. Laws— a special law, and inconsistent with the Constitution of the State. Const., Art. 3, sec. 32. Declaration of Rights, Art. 4.

The hill states that certain persons, giving their names, have keen appointed hy the Governor, a'nd commissioned as Officers of Registration for the several election districts of Prince George's county, under the Act of 1865, ch. 174, who, under the pretended authority vested in them, made out lists of the legal and qualified voters of said county, copies of which lists are filed as Exhibit A. It further states, that the complainants are white male citizens of the United…

This is an appeal from an order of the Circuit Court for Montgomery county, dismissing the petition of the appellant for the writ of mandamus to ’he directed to the appel-lees, officers of registration, commanding them to register his name on the list of registered voters for said county and district wherein he resided. The facts of this case are fully stated in the several opinions filed by the Justices of this Court.

The petitioners allege their incorporation and foundation as a body politic; that they proceeded, uricLer the Act of incorporation, to collect large sums' of money subscribed and paid by private individuals upon the faith of this charter, to erect buildings, and otherwise perform the duties required of them, and that the petitioners are the qualified successors of the first Visitors and Governors; that by the 19th section of that Act, in order to provide a permanent fund for…