Volume 24 — Maryland Reports

This is au appeal from an order of the Circuit Court' of Baltimore City, passed on the 4th of September, 1860, in a cause therein pending, requiring theappellant, Barroll, to bring into Court certain funds in his hands as receiver in said cause.

This is an action, instituted by the appellee against the appellant, to recover damages resulting from the neglect to use due and proper diligence to collect a draft for $8,000, drawn by Hoffman & Co., on Josiah Lee & Co., bearing date the 29th of October, 1860, which the appellant had undertaken to collect for the appellee- Errors in pleading on both sides were waived, and it was agreed that the plaintiff or defendant might respectively rely on any claim or defence to which…

The bill in this case was filed by the appellant against the appellee for an injunction to restrain the appellee from prosecuting a suit against the appellant upon a promissory note for $1,000, made by the appellant and passed by him to the appellee, and for a discovery as to the consideration of the note.

The bill of complaint of Eliza A. McClellan, (the appellee,) filed the 1st of July, 1859, sets forth as follows : In May, 1841, William McClellan applied to Daniel B. Banks, the appellant, for a loan of $1,500, to which Banks would assent only upon the terms that it should be taken in fifteen shares of Gas Company stock, the par value of which was $100 a share, but which was then worth in the market only $90 a share, or $1,350, less broker’s commissions.

Ceoss Appeals from the Superior Court of Baltimore City. The action in this case was brought in the name of the State to the use of Mary Coughlan against the Baltimore and Ohio Rail Road Company, to the September Term, 1861, of the Superior Court of Baltimore City, to recover damages for the killing of her child, Peter Bannon.

This suit was brought to the September term of the Superior Court of Baltimore City, 1861, by Jas. Coughlan, the next friend of Patrick Bannon, a minor, about seven years of age, to recover §3,000 damages for injuries sustained by the latter through the wrongful act, neglect or default of the Baltimore and Ohio Rail Road Company or its agents, on the 13th of October, 1860.

<p>Beal and Personal Covenants: Covenant to Pat Mortgage Debt. — A borrowed money of B to be expended in erecting houses upon certain land, and executed to B a mortgage of the land by which ho covenanted for himself, his representatives and assigns to pay the mortgage debt; and it was expressly declared in the mortgage that this, with certain other covenants, should run with the land. In an action upon, this covenant to pay the mortgage debt, brought against an assignee of the mortgagor, Held :</p> <p>That the said covenant was not a covenant running with the land, and did not bind the assignee.</p>

This was a case of attachment on warrant issued out of the Superior Court of Baltimore City, at the instance of the appellant, to affect the goods, chattels, &c., of Joseph Ripka & Co., non-resident debtors, and laid in the hands of the appellees as garnishees.

<p>Agreement : Consideration : Parol Promise to pay the Pre-existing Debt oe Another : Stat. 29, Charles II, Sec. A. — 6, a broker, received from the defendant certain moneys to invest in bonds, and being then indebted to the plaintiff gave the latter his cheek for the amount due him, and deposited with the cashier of his bank five State bonds, to make his cheeks good. Three of the bonds so deposited had been purchased upon the order and witli the money of the defendant, but never delivered to him, yet marked in pencil with his initials. These bonds were transferable by delivery, and neither the bank nor the plaintiff were'aware of the defendant’s claim to a part of them. After the deposit the bank overpaid checks of G but did not pay the cheek given to the plaintiff. G failed a few days after depositing the bonds in bank. When the defendant called on him, G told him the bonds were pledged with the bank to secure its overpayment of his checks and the unpaid chock to the plaintiff; upon which the plaintiff proposed, if G would give him an order for the five bonds he would make good the amount due on them to the bank, and also pay G’s check to the plaintiff, to which G agreed. Upon the presentation to the bank of the orders given under this agreement for the delivery of these bonds, and upon payment of the sum due the bank, the bonds deposited were delivered up. After the bonds had been obtained, G and the plaintiff called on the defendant to inquire why the check had not been paid, and the defendant admitted his promise to pay, but said he was too smart to pay that check, and had procured the bonds without paying more than the bank’s advances. On a suit brought against the defendant by the plaintiff, Held :</p> <p>1st. That it was not necessary, to create an obligation on the part of the defendant to pay the plaintiff the amount of the check, that the consideration should proceed directly from the plaintiff or the promise be made directly to him. Such a promise to one for a third party, is to be deemed made to the third party, if adopted by him, although he was not cognizant of it when it was made.</p> <p>2nd. That the prejudice of the plaintiff by the delivery of the bonds was a sufficient consideration to support the defendant’s promise, whether the latter was benefited by the transaction or not.</p> <p>3rd. That this case was clearly within the well-known exception to the operar tion of the statute of frauds, that “ wherever the main purpose and object of the promisor is, not to answer for another but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another.”</p> <p>The rule that there must be an extinguishment of the first debt as a consideration of the new promise, applies only to that class of cases where the credit- or’s relinquishment of the first debt is the motive of the promise. It does not apply to cases where other inducements are held out such as the assignment of property, or relinquishment of liens, in consideration of which the promisor undertakes to pay the debt of another.</p> <p>Witness, Competency oe : Release. — The plaintiff, in order to render G a competent witness, during the trial executed a release to him, reserving the “right to proceed against any and all other parties who may in any manner be liable,” Held :</p> <p>That such release rendered G competent if he was before incompetent, without prejudice to the right of action of the plaintiff.</p>

<p>Al’I’kal from the Superior Court of Baltimore City.</p> <p>The facts of this case are stated in the opinion of this Court-</p>

The appellees, as endorsees, sued the appellant, as endorser and payee, of a promissory note. The defendant pleaded several pleas, the second of which was that he had not due notice of the dishonor of the note, and the fourth was that no legal demand of payment was made upon the-makers.

<p>Appointment and Removal op Oppicebs : Constitutional Law : Justices op the Peace. — By the Constitution of 1864, Art. 2, Sec. 16, it is provided that “All civil officers appointed by the Governor and Senate shall be nominated to the Senate within fifty days from the commencement of each regular session of the General Assembly; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless sooner removed from office) and until their successors respectively qualify according to law.” By Art. 12, Sec. 6, it is provided that “All officers, civil and military, now holding office, whether by election or appointment, under the State, shall continue to hold and exercise their offices according to their present tenure unless otherwise provided in this Constitution, until they shall be superseded according to its provisions, and until their successors be duly qualified.” By Art. 6, Sec. 4T, the term of office of Justice of the Peace was changed from an election by the people, to appointment by the Governor, by and with the advice and consent of the Senate. Held :</p> <p>That Justices of the Peace who were elected in November, 1863, and in office when the Constitution of 1864 was adopted, continue to hold their offices until there shall be regular appointments by the Governor and Senate superseding them; and that the concurrent act of the Senate could only be had at a regular and not a special session of the Legislature.</p> <p>Note. — The reporter is requested to say, that Judges Bartol and Oochran who did not sit at the hearing of this case, have examined the questions involved, and entirely concur in the foregoing opinion of the Court.</p>

This appeal is taken from an order of the Circuit Court for Baltimore City, passed 31st May, 1861, whereby the auditor’s accounts A and B are finally ratified, and the exceptions to his account 0 are sustained, and that account is rejected. The original bill was filed by McDowell and others claiming to he creditors of one Elizabeth Osborne, deceased, for the purpose of avoiding certain conveyances made by her to Goldsmith in fraud, as it was alleged, of her creditors.

Motion to dismiss an appeal. — The facts material to the decision upon this motion are stated in the opinion of this Court.-

This is an appeal from a decision of the Superior Court ■of Baltimore city.

The appeal in this case is from an order of the Superior Court of Baltimore city, overruling objections to a sale made in pursuance of a decree passed under the provisions of the Act of 1833, ch. 181, embodied in the Code, vol. 2, Art. 1, sec. 782, relating to mortgages in the city of Baltimore. The facts of the case are stated in the opinion of this Court.

This is an appeal from a decree of the Circuit Court of Baltimore City, passed in pursuance of the provisions of the Act of 1833, ch. 181, and its supplements. A hill or petition was filed in the Court below on the 20th of September, 1862, by tbe appellee, in these words : “ The bill of complaint of tbe Teutonia Building Association, No. 2, humbly shows that a certain Chas.

This action was brought by the appellee, in the Superior Court of Baltimore city, to recover damages under the Act of 1852, ch. 299, for the killing of a certain William Henry Kelly.

This is an action upon the injunction bond filed in the case of Rich et al. vs. Levy, reported in 16 Md. Rep., 74, the record of which case is by agreement to be treated as if set out in the several bills of exceptions. The plaintiffs, now appellants, were the defendants in that case, and the appellee, who in this action was sued, together with Rich, who was not found, became a party complainant in that case in the progress of the proceedings.

Attachment on warrant, issued on the 22nd of February, 1859, and laid in the hands of the appellants, as garnishees, trading in the city of Baltimore under the partnership name of Springer, Friedenrich & Co. The facts of the case are fully stated in the opinion of this Court.

This case was argued in the Superior Court of Baltimore City upon the following agreed statement of facts : “It is admitted in this ease that the said Richard C. Murray was duly appointed by the Orphans’ Court for Baltimore City the guardian of his infant children, Margaret A. Murray, William E. Murray and Alice Anne Murray, and that after his appointment he gave bond for the faithful performance of his duties as guardian, which was duly approved by the said Court, a copy…

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>The facts of this case are fully stated in the opinion of this Court.</p>

A decree was passed by the Circuit Court for Washington County, as a Court of Equity, bearing date the 20th day of July, A. D., 1860, in the case of George W. Smith, the appellee, as insolvent trustee of Amos Eakle, against the appellant, Jacob Eakle, and a certain Amos Eakle, and decreeing that the defendant, Jacob Ealcle, pay or bring into this Court to he paid unto the complainant, George W. Smith, as insolvent trustee of the said Amos Eakle the sum of $4,201.30, current…

This was an action of assumpsit, instituted by consent in the Superior Court of Baltimore City, to determine the respective claims of the appellant and appellees to a sum of money, the proceeds of two policies of insurance, effected on property which was consumed by fire.

<p>Last Will and Testament, Unexecuted, when not to be Admitted to Peobate.' — E. M. having caused to bo prepared in writing her last will and testament, declared herself fully satisfied therewith, but failed to execute the same for nearly one year thereafter, when, desiring to execute it, but not being able to find it, she directed her brother Q. A. M. to have a second will prepared similar to the first. A second will was prepared, butE. M. died without having executed it. The second will having been offered for probate, a caveat was filed thereto the same day. It was proved by the attorney who prepared both of said wills that the second was in substance the same as the first; but it appeared that it was never in her possession ; that she neither read it nor heard it read; that she made no inquiry in reference to it during her last illness, and there was no evidence to show that the deceased was unavoidably prevented from executing it, or that she intended it to have effect in its imperfect state. On appeal from an order of the Orphan’s Court admitting the second will to probate, Held :</p> <p>That the state of the evidence leaves it in doubt whether the u animus testandi ’ ’ manifested at one time by the deceased continued with her to the time of her decease, or during her testamentary capacity, after the preparation of the paper, and that the Orphans’ Court was in error in admitting the proposed will to probate.</p>

This is an appeal from a judgment in the matter of a scire facias issued from the Circuit Court for Frederick County, upon a recognizance in a case of bastardy.

This was an action hy the appellees against the appellant to recover the value of a crop of peaches alleged to have been wrongfully taken by the appellant, assignee of the tenant, from lands held by the tenant under a lease, and the proceeds of which had been claimed and retained hy the appellant. The facts of the case are stated in the opinion of this Court.

<p>Appeal from the Circuit Court for Kent County.</p>

The bill in this case was filed by the appellee, and alleged that he leased, on the 2d January, A. D. 1861, a parcel of land, consisting of seven separate fields, in Baltimore county, to W. S. Mabbett and J. McCullum, for eight years and eleven months, at an annual rent of $650, and filed the lease as an exhibit with the bill; that afterwards the lessees sub-leased the greater part of it to one J. D. Ulery; that by some means unknown, the possession of the part so sub-leased…

This is an appeal from a pro forma order of the Circuit Court of Baltimore City refusing an injunction. The only question in the case is as to the construction of a devise in the will of Freeborn Gr. Waters. The allegations of the bill and the portion of the will in controversy are set forth in the opinion of this Court.

This was au action instituted hy the appellant to recover a balance due on a loan of $3,000 made by it to the appellees on the 11th of March, 1861, payable in 90 days.

The bill iu this case was filed on tbe 28th of September, 1860, by the appellees against the appellants.

This is ah action of ejectment brought in the Superior Court of Baltimore.

The appellee instituted an action of trespass q. c. f. against the appellant in the Superior Court of Baltimore, and hy consent of the parties the case was referred under rule of the said Court to I. Nevett Steele, Esq., as referee. While the matter was pending before the arbitrator, the defendant -instituted proceedings in the Circuit Court of Baltimore City, and procured an injunction from that Court, restraining the plaintiff from proceeding with said reference.

On the 27th of May, 1861, the appellant, as trustee, executed to the appellee a mortgage of certain real estate in the city of Baltimore, and in said mortgage was contained the assent of the mortgagor to the passing of a decree for the sale of the mortgaged property in accordance with article 1Y, title “City of Baltimore,” secs. 782 to 792 inclusive, of the Maryland Code, volume second.

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>The facts of this case are sufficiently stated in the opinion of the Court.</p>

<p>Corporations : Individual Liability of Stockholders under the Act of 1852, Ch. 338, Sec. 9: Recoupment : Practice in Equity : Contribution. — A company was incorporated under the provisions of the Act of 1852, Ch. 338, the 9th section of which provides, that the stockholders " shall be severally and individually liable to the creditors of the company in which they are stockholders to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company until the whole amount of capital stock fixed and limited by such company shall have been paid in, one-half thereof in one year, and the other half thereof within two years from and after the incorporation of said company, or such corporation shall be dissolved." On a bill filed by creditors of the company to make certain of the stockholders liable under this clause, the latter, besides a general denial of liability, sought to set off the amount of certain loans made by them to the company, against the claims of the creditors, Held :</p> <p>1st. That though the doctrine of recoupment might properly arise between the company claiming the payment for stock subscribed, and the stockholders who had loaned money to the company, to an amount equal to their stock, or had paid debts of the company to that amount, it by no means follows, that the stockholders are absolved from liability to the creditors of the company.</p> <p>2nd. The statute does not refer to them in their corporate capacity, but as individual stockholders ; and it declares their liability without reference to the amount they may have paid in on their stock.</p> <p>3rd. If the stockholders had paid for their stock, and subsequently became creditors of the company to an amount equal to their stock, by so doing they would be clothed with equities equal to any other creditors who may have become so by contracts with the company.</p> <p>4th. That the stockholders were not liable for debts contracted by the company subsequent to their parting with their stock.</p> <p>5th. That a creditor of the company who receives stock from the company as collateral security for his loan, is not personally subject to any liability as stockholder, but is protected by the provision of the 13th section of the Act of 1852, Ch. 338.</p> <p>6th. That this proceeding being in equity, where the liability of the several defendants maybe ascertained and enforced with respect to each other, each of them may insist upon contribution from the others, and such other of the stockholders as are liable under the statute should be made to contribute rateably their proportion of the complainants’ claims.</p>

On the 14th of December, 1863, the appellant filed his bill of complaint in the Superior Court of Baltimore City, stating as follows : “That at January Term, 1882, of the Court of Common Pleas for Baltimore City, your orator obtained a judgment by default against a certain William Rogers, which was afterwards extended by the agreement of the parties on the 30th day of October, 1862, for the sum of $277.50 cts., with interest from the 24th day of October, 1862, and costs,…

Writ op Error to tbe Circuit Court for Baltimore County. This was a writ of error to the Circuit Court for Baltimore county, in the case of the indictment of one Charles D. Hiss, a Justice of the Peace for malfeasance in office, removed from the Criminal Court of Baltimore City. The facts are stated in the opinion of this Court.

This action was instituted on the 1st day of February, 1861, by the appellee, to recover from, the appellant the amount of his subscription to its stock. By the Act of 1852, ch. 304, certain persons therein named were appointed commissioners to receive subscriptions to the capital stock of “ The Baltimore, Carroll and Frederick Rail Road Company.

The appellant filed her bill in the Circuit Court for Baltimore City, alleging as follows : “ That your oratrix’s late husband, Charles Myers, her now testator, in his life time, to wit: on the twenty-eighth day of November, 1860, entered into a contract with a certain James S. Forbes, carpenter of said city, to do and perform the carpenter’s work in and about a certain warehouse which he, the said Charles' Myers, was at that time about to build, at the corner of South…