Volume 26 — Maryland Reports

Mary’s county.. This is an appeal from an order of the Orphans’ Court' of St. Mary’s county, admitting to probate the will of Nannie Buchanan, the late wife of the appellant. The only question which it involves is the right of Mrs. Buchanan, as a feme covert, to make a will under the circumstances of the case, without the assent of her husband. The marriage between the parties took place in July, 1863.

This action was brought by the appellee against the appellant to recover the value of goo'ds sold and delivered by the former to the latter. lsi Exception. At the trial of the cause an account showing the amount due from the appellant to the appellee was offered in evidence by the latter and was admitted to he correct.

-This appeal is taken from an order of the Court below overruling the appellant’s exceptions to the ratification of the sale made to him under the decree in the case, and finally ratifying such sale. The bill in this case was filed by some of the heirs-at-law of William II. Turton, deceased, against the others, for a partition of the real estate of which the said Turton died seized and possessed.

<p>tiOXTBACI, — -SPECIFIC PKRrOMASCK OP: I’liAOTtCJ! IN EQUITY : INJUNCTION: LAND-1, obd and Tenant. — Tho bill of complaint of O. alleged, that O. having been for many years the tenant of S., and being m possession of the premises under a lease from February 1st, 1861, for one year, at a rent of $1,100, towards tho close of that year it was verbally agreed between them that if ’(). would pay the increased rent of $1,500, S. would execute him a lease for one year with the privilege of two or three, in O’s discretion; that O. remained in possession after the termination of the lease of 3 861, and paid the increased rent of $1,500 “as part and parcel of the agreement aforesaid, in performance and consideration thereof;” that S3, having failed to execute the lease according to the agreement, O. notified him that lie would enforce its specific performance, at tho same time making his election to take the property for the whole three years; and that S. replied by instituting summary proceedings before a magistrate lo ejest O. from the premises. Whereupon O. filed a bill for the specific performance of the agreement, and for an injunction as incident thereto pending the proceedings.— Held ;</p> <p>1st. That if S. had executed the lease, O. would have been bound to pay tho rent; on the other hand, if the tenant paid the rent “on the foot of tho agreement,” S. was bound to execute the lease according to the terms agreed upon. 2nd. That mutuality of a contract means an obligation on each of the parlies thereto, to do or permit to be done something in consideration of the act or promise of the other. It does not imply that every stipulation is absolute and unqualified.</p> <p>3rd. That the allegation of tho complainant “that ho paid the increased rent of $1,500 as part and parcel of the agreement aforesaid, and in performance and consideration thereof, and not otherwise,” was equivalent to an averment “that the landlord accepted the additional rent upon tho foot of the agreement,” which has been held sufficient to require an answer.</p> <p>4th. That the bill of complainant presented a case which prima facie entitled the complainant to an injunction until the corning in of the answer and further order.</p>

This was a motion filed, iu a cause heretofore decided in this Court, (see Paine vs. France etal., 25 Md. Pep., 163,) praying the Court ££to re-opeu the decree heretofore passed therein and to re-hear the cause.”

This is an appeal from an order of the Court below (Alexander, J.,) dissolving an injunction before granted and dismissing tbe complainant’s bill. The allegations of the bill and facts of the case are stated in the opinion of this Court.

This is a motion to dismiss an appeal which was taken from an order of the Circuit Court for Anne Arundel •county, granting a motion by the caveatees for a new trial in a case of issues from the Orphans’ Court of Montgomery ■county, and overruling a motion of the caveators, that the •caveatees be required to elect between their said motion and their exceptions reserved at the trial.

The appeal in this case is from an order of the Court below ( Alexander, J.,‘) granting an injunction upon a bill filed by the appellee, praying for the specific performance of an agreement by the appellant, ‘to execute to the appellee a lease for five years, and for an injunction restraining the appellant from any further proceedings under a judgment of restitution obtained against him before a Justice ■of the Peace.

This was a motion for a procedendo filed in the case of McCann & Nussear vs. Sloan & Colwell, heretofore decided in this Court, and reported in 25 Md. Hep., 515. The circumstances under which the motion was made are stated in the opinion of this Court.

This appeal is taken from two orders of the Court below, ( Alexander, J.,) the one passed on the 24 th of February, 1866, appointing receivers and granting an injunction, and the other, dated 30th of April, 1866, continuing said order of 24th of February, 1866, until final hearing or further order.

This appeal is taken from an order of the Orphans’ Court for Baltimore city, passed on the 7th day of September, 1866, declaring valid a paper offered for probate as the last will a.nd testament of John Goodhand, deceased.

This is an appeal from a ¡proforma order of the Orphans’ Oourt of Baltimore city, passed on the 25th day of September, 1866, requiring the executor of the last will and testa*merit of Eliza S. Hall, deceased, to allot and distribute to •and amongst the granddaughters of the testatrix who were living at the time of her decease, the one-fifth part of aM €he rest and -residue of her estate which was devised by her in trust for the sole and separate use of Eugenia S. Hall during…

This is an appeal from a decree of the Circuit Court of Baltimore city, (Krebs, J.,) dismissing the bill of complaint filed in that Court by the appellants, infants, by next friend, -against the appellees. The appellants are the children of Augustus Barnum, deceased, who was one of the children of David Barnum, deceased.

The appeals in these consolidated cases are taken from the orders of the Court below, (Alexander, J.J in the first case appealed from, ratifying certain accounts, allowing J. Dixon Roman the amount of his mortgage claim, and a further order rejecting the allowance in said accounts to J. Philip Roman lor his claims' as purchaser of certain promissory notes.

The appellees filed their petition in the Circuit Court of Baltimore city praying for an injunction to restrain the appellants from further proceedings in collecting the assessments levied upon the appellees, and other -owners of lands, on the line of North Avenue, for the payment of the expenses of grading said avenue. The appellants answered the petition, justifying their action under the Acts of 1864, chs. 188 and 344.

The complainant’s hill was filed on the 28lh of January, 1860, to recover from the appellees, the executors of Samuel Hamilton, an open account alleged to he due the complainant for services rendered the said Hamilton, by the complainant, as his general agent, for the management of his property in Allegany county, Md., from January, 1838, to January, 1859, amounting to $700.

This was an action brought at the October term, 1861, ■of the Circuit Court for Frederick county, by the appellees against the appellant on two promissory notes.

' This was an action upon a guaranty brought by the appellees against the appellant. The facts of the case are stated in the opinion of this Court.

This was an action hy the appellee as assignee of a single hill, against the appellant, the maker of said hill. Exception.

The bill of complaint in this case was filed by the appellees against the appellant, its object being the recovery from the appellant of the sum of $4,250, with interest from the 4th of February, 1854, under and by virtue of the following agreement between the appellant and Catharine Baker, his late wife, prior tp their intermarriage : “First, the said Catherine Baker being possessed in her own right of money, choses in action, book accounts and other personal property to…

The appellant filed the hill of complaint in this case against the appellees, for the purpose of enforcing a charge upon lands descended to them, for the payment of certain legacies. An answer was filed and the case submitted on an agreement as to the facts. The material allegations of the bill and answer, and the facts of the case are set forth in the opinion óf this Court.

This is an action of ejeotmeni by the appellee against the appellants.

The bill in this case was exhibited by the complainant., (at the instance of the Comptroller and of the Board of Public Works,) in its sovereign capacity as a State, against the Chesapeake and Ohio Canal Company, a corporation created by the State, and to which it had imparted a portion of its right of eminent domain, and, also, in its capacity as a creditor of said company, holding liens on its property and net revenues, and against an attaching creditor of said company ;…

Cross-Appeals from the Orphans’ Court of Baltimore ©ity. On the '5th of June, 1823, letters of administration de bonis non, upon the estate of Christopher Raborg, deceased, were granted by the Orphans’ Court of Baltimore city to Samuel J. Donaldson, who assumed the trust, and continued to he such administrator down to the time of his own decease, in the year 1866.

This was an appeal from an order of the Court below, (Alexander, J.,) -passed ou the 81st of March, 1866, dissolving the injunction previously granted in the case, where-' hy the appellees were enjoined from collecting certain rent® from the appellant. The opinion of this Court contains a. full statement of the case.

Mary’s county. James H. C. Manning, by his will dated the 2nd of February, 1854, devised as follows : “2nd. Held: ‘that it was the intention of the testator, that if his widower M. M. Lockley should marry,, the whole annuity should go to the survivor.

The bill in this cause was filed by the appellant, as insolvent trustee of Samuel Lynch, against the appellee, to have a certain bill of sale, executed by the said Lynch to the appellee, declared to be a mortgage for the security of money owing by said Lynch to the appellee, and requiring the appellee to account for the property conveyed to him by the said bill of sale, and which came into his possession.

Writ of Error to the Circuit Court for Frederick comity. This was an action for slander instituted by the defendant against the plaintiff in error.

The bill in this case was filed September 21st, 1860, by the appellees against the appellant, and alleges that Markell and Kunkel being responsible as sureties for Francis Thomas, for certain debts due by Thomas to divers persons, the said Thomas, to secure them, the said Markell and Kunkel, therefor, on the 21st of February, 1853, assigned and delivered to Kunkel in trust, three single bills of one M. P. O’Hearn, and as declaratory of such trust took from Kunkel this…

Petition for a supersedeas in the Court of Appeals, on an appeal from an order of the Orphans’ Court of Baltimore city. Joseph Henry, in his lifetime, made in the Eutaw Savings Banka deposit of about §1,800, which was entered in these words r “Joseph Henry and Margaret Taylor, and the survivor of them, subject to the order of either,” and a few months after died. After bis death Margaret Taylor, one of the petitioners, drew out the money.

The bill in this case, filed November 20th, 1858, by the appellant, charges that Martha Ann Shaner, a married woman and the wife of Jeremiah Shaner, purchased at public sale, from a trustee in equity, a tract of laud for $3,440.07 ; that this sale and purchase took place March 28th, 1857, was duly reported and finally ratified September 7th, 1857, and on the 17th of October.of that year, the land was conveyed to the said Martha by the trustee, by deed duly executed and…

This was an action by the appellants against the appellees to recover the amount of an account for goods bargained and sold to the appellees by Lanier Brothers & Co., which account had been assigned by them to the appellants. The facts of the ease are stated in the opinion of this Court.

This was an action by the appellees against the appellant for the recovery of damages for the alleged breach of a special verbal contract for the sale and delivery of cattle. The facts of the case are stated in the opinion of this Court.

This was an Ejectment, brought February 27th, 1849, by the appellants, for parts of three tracts of land, one called “Moore’s Part of Barbadoes Enlarged,” containing 198 acres, another called “Gedor,” containing 20 acres, and the other called “Gilead,” containing 61-| acres. Defence was taken on warrant, and a warrant of resurvey was issued July 8tb, 1850.

This appeal was taken by the petitioners in the Court below, from an order of said Court, ( Weise'l, J.,) dismissing their petition, which prayed for the appointment of a receiver under the Acts of 1847, ch. 228, and 1852, ch. 229, to take charge of the affairs of the Cumberland Cotton Factory, and to enforce the lien to which they claimed to he entitled under said Acts, against certain personal property, which, at the time said lien attached, was the property of said…

This is an appeal from an order of the Court below holding the administrator, Walsh, responsible for iaterest upon funds retained in his hands while seeking to ascertain the next of kiri of his intestate, the Court having previously refused to allow the administrator to invest said funds on Ms ex-parie application by petition, for authority to invest the same. There was no proof before the Court that the administrator had used the money or made iaterest out of it.

This action was brought by the State of Maryland against the appellant, to recover the sum of six hundred and sixty-six dollars and sixty-two cents, claimed to be an excess of fees received by him as one of the dour .inspectors of the city of Baltimore over and above the ratable proportion of the annual salary of his office, for the fraction of the nnexpired .year of his predecessor in office. The facts -of the case are more fully stated in the opinion -of this Court.

<p>Constitutional Law: Mandamus ; Public Schools of Balto. City. — The 8th Aeticle op the Coxstitutioi; op 1854, evidently contemplates a system of Public School Education throughout the State, not cxludintr the citv of Baltimore.</p> <p>The last clause of the 3rd section of said Article cannot be construed to mean that the system itself as established in Baltimore city prior to the adoption of th^ Constitution, was re-enacted as part of the Constitution of the State, and placed beyond legislative control; it simply acknowledges the existing mode» of organization of School Commissioners in that city and their appointment* and provides for changes in this respect only to be made from time to £ime by the General Assembly and the Mayor & City Council of Baltimore.</p> <p>But whether the organization or mode of appointment of the City Commissioners' only was meant, or that the system itself was intended to be carried into and made a part of the Constitution, thb reservation of the power to alter and‘ amend was equally necessary where legislative control was to be preserved.</p> <p>Whatever room there might be for doubt as to the true construction of the said 3rd Art., there-can be none as to the power of the Legislature to pass a law or laws altering or changing whai is there enacted in reference to the public schools-of the city of Baltimore-, whether regarding it as pertaining to the mode of appointment of the commissioners or to the system of education and the conduct of its schools. The Act of 1865, ch. 160* may therefore lawfully embrace terms and provisions affecting the public schools of the city of Baltimore, established there prior to, and in existence at the time of the adoption of the Constitution of the State.</p> <p>The Aor op 1865, oh, 160, by its letter and in its spirit, and looking to the design-of the Constitution upon the subject of public education is applicable to and operative in the city of Baltimore, and vests in the State Board of Education the exclusive power and authority of selecting and prescribing the texfc-book* to be used in the public schools of that city.</p>

• This was an action of assumpsit, instituted by the appellants against the appellee, to recover the sum of two thousand four hundred dollars, on a promissory note drawn by Hall & Anderson, to the order of the defendant, and’one R. D. Hall, dated Upper Marlboro, February 16th, 1861, for value received, payable at the People's Bank of Baltimore, four months after date, and by them jointly endorsed to the plaintiffs, the holders thereof. 1st Exception. 'At the trial below, the…

This action was brought January 23rd, 1860, by the appellant against the appellee for breach of a contract between them.

This action was brought by the appellee to recover damages from the appellants, for the alleged breach of the following agreement: “Whereas, a certain John Withers hath loaned to us the sum of ten thousand'dollars, payable in ten years from the 15th of July, 1852, with interest quarterly, or earlier at our option, and holds as security therefor, a piece of lan'd in the city of Baltimore, which was conveyed to him on the day of the date hereof, by John Clarke and wife, at the…