Volume 27 — Maryland Reports

This was an application by the appellant for a mandamus, to compel the appellee to surrender' to him the office of Mayor of the City of Cumberland. The appellant claimed that none hut registered voters had a right to vote at the municipal election, and that he had received a majority of such votes.

<p>Jurisdiction — Separate property of a married ivoman— When a judgment offered in evidence is conclusive — Evidence— Witnesses.</p> <p>A married woman holding property to her sole and separate use, bona fide, is entitled to have the same protected by injunction, from execution levied thereon by creditors of her husband.</p> <p>Property conveyed by a husband to his wife, as a gift, cannot be reached by a subsequent creditor, unless there is evidence of fraud in fact.</p> <p>The judgment of a Court of competent jurisdiction, when offered in evidence, is conclusive only when the same subject is in issue, and between the same parties, or privies.</p> <p>The evidence of a witness as to the signature of a person, whose hand- . writing he was not acquainted with, had never seen him write, and spoke only from a comparison of the handwriting, is not admissible.</p> <p>Courts of justice will not assume that witnesses have peijured themselves and are not entitled to credit. If testimony be not rebutted, and the character and credibility of the witnesses be not impeached, it will have its due weight and influence with the Court.</p>

While this case is very clearly and fully stated in the opinion of the Court, it is deemed proper to present substantially the very numerous exceptions in the order in which they were taken in the Court below, omitting, however, the extended argument of counsel, and merely giving the authorities on which they relied : 1st Exception, (by appellant.) The plaintiff offered in evidence the cause of action, being the agreement to lease, the execution of which was admitted.

This appeal is from an order of the Court below granting an injunction, upon a bill filed hy the appellee against the appellants. The facts of the case are sufficiently stated in the opinion of the Court.

<p>Pleading — Promissory Note — Evidence.</p> <p>A. declared against B., first, upon a promissory note; secondly, for money payable for goods bargained and sold; and thirdly, on an account stated between them. B. pleaded as to the three counts — that he never was indebted as alleged; and for a second plea to the first count, that he never promised as alleged. At the trial A. produced in evidence a paper purporting to be a promissory note. Held :</p> <p>That to maintain the issue joined on the first count only, this instrument was not admissible, in— - ,ch as it was not a promise to pay a fixed and certain amount, but an a unt subject to vary upon certain contingencies, but being offered to si' iport the issues generally, it was admissible as prima facie evidence, under the second count, of a balance due for goods sold and delivered, subject to the deductions stipulated in the agreement.</p> <p>This paper having been thus offered and rejected, the plaintiff was offered as a witness, and detailed the particulars of a verbal contract entered into between himself and the defendant, Smith, about a week prior to the date of this paper, in which it was agreed that Smith would buy the plaintiff’s interest in a certain crop of wheat for the sum of $840. He also proved that a day or two afterward he was informed by Smith that the defendant, Barrick, was partner with him in the purchase of the Wheat; and that on the same day they paid him on account the sum of $430. On his cross-examination it was proven that the balance of $430 was secured by this paper, and that the terms of payment were expressed in it, that they had not been mentioned by any of the parties when the contract for said sale was made, and not until after the said $430 had been paid, but were mentioned afterwards and agreed to by plaintiff; and that no other than the contract which was reduced to writing, was entered into by said parties on that day relative to the said unpaid purchase money. The defendants thereupon moved the Court to withdraw from the consideration of the jury all that portion of the testimony relating to the unpaid purchase money, upon the ground that inasmuch as the contract for the payment(thereof had been reduced to writing, it was not competent to give parol proof thereof, without producing the written contract. Held :</p> <p>That the testimony relating to the unpaid piurchase money having been brought out by the defendants on cross-examination, it was not competent for them to object to it under the circumstances.</p>

Cross Appeals from the Circuit Court for Washington County. The facts of the case are so fully set forth in the opinion of the Court, that no further statement of the same is deemed necessary.

The bill filed in this case on the 11th of February, 1867, alleged in explicit terms, that an ante-nuptial contract had been entered into between the appellant and the appellee, whereby it was agreed in consideration of marriage that the latter would , convey to the former, in fee, a house in the City of Baltimore, known as Ho. 95 Sara-toga street, and would also give him ten thousand dollars in money; that on the faith of this argreement the appellant was duly married to…

<p>Appeal from tlie Circuit Court for Allegany County, sitting in Equity.</p> <p>The facts of the case are sufficiently stated in the opinion of the Court..</p>

In the trial of this case below, the following exceptions were taken by the appellant: Isi Exception: The plaintiffs proved by James M. Harding, that he was present on an occasion when the plaintiffs and defendant were together, and then asked witness whether he saw money paid by the plaintiffs to defendant; the defendant here interposed and asked witness whether the money which he saw paid, if any such thing occurred, was paid on account of or in pursuance of a written…

Isi Except,ion: The plaintiff, after proving the mode in which the business of shipping coal was done at the mines in Allegany County, at Cumberland, and on the Chesapeake and Ohio Canal, offered to prove by Edward Wilson that he had been for six or seven years boating on the canal, and had frequently seen the coal weighed out of canal boats, and had thus become acquainted with the number of tons of coal in a boat.

This action was brought by the appellee to recover the value of a trunk and its contents, and a chest of tea, alleged to have been lost while he was stopping, as a guest, at the Revere House, a public hotel in Cumberland, of which the appellant was the proprietor.

Ejectment hy the appellee against the appellant for a tract of land called “ Ryefield.” The facts of the case are sufficiently stated in the opinion of the Court. .Exception: Upon the evidence the plaintiff offered two prayers, one of which the Court rejected, hut granted the other, which is as follows : If the jury shall find from the evidence in the cause that Thomas Ruhy, on the 20th day of April, 1846, was seized of a good estate in fee simple, in and to the tract of…

This was an action of assumpsit brought -by the appellees in May, 1861, against the appellant, to recover, among other things, upon his alleged promise to pay to the appellee, Mary, and her four sisters, children of John Hartle, deceased, the sum of $1,000 each. John Hartle, the father of the appellant and the female appellee, made and executed his will, which was duly admitted to probate by the Orphans’ Court of Washington County.

This was an action on the case, brought hy the appellee, in October, 1863, against the appellants, for slanderous words uttered hy the appellant Harriet. The jury assessed the damages at $1,000, and the defendants appealed to this Court.

This was an action of assumpsit brought hy the appellee to recover damages from the appellant, for the violation of a contract of sale of two thousand bushels of corn, which were to have been delivered hy the latter to the former at fifty cents a bushel. Sometime in October or November, 1863, the appellee met the appellant, and asked him if he had any corn for sale ?

This was an action of ejectment brought by the appellee against the appellants to recover four lots in the town of Llangollan, in Allegany county, described as lots 34, 41, 42 and 43. Plea not guilty. Prom the view taken of the case by this Court, no statement of facts additional to those which appear in the opinion is deemed necessary.

The facts of the case are sufficiently set forth in the opinion of the Court.

Joseph Henry died in September, 1866. In June previous he, with his sister, Margaret Taylor, with whom he was then living, went to the Eutaw Savings Bank and had her name inserted in his bank-book as the joint owner of a deposit he had to his credit in that bank, the same to be subject to the order of either of them. Shortly after the death of the said Joseph, letters of administration upon his estate were granted by the Orphans’ Court of Baltimore City to the appellees.

The facts of the case are sufficiently stated in the opinof the Court. At the trial below there were five bills of exceptions taken by the appellant, the first and second of which are omitted, as the questions therein raised, being to the admissibility of evidence, are presented in the fifth exception.

The hill in this case was filed on the 14th of December, 1863, by the appellant, as executor of Noah Phillips, and charged in substance that a certain Isaac Wright, being indebted to the said Noah in the sum of $1,400, evidenced by his four single bills of $350 each, dated 7th of April, 1848, payable respectively at two, three, four and five years after date, with interest from date, to secure payment thereof, did, with his wife, execute to the said Noah a mortgage of the…

In this case a petition was filed on the 19th day of November, 1868, by William Long and others, who sued for themselves, as well as for all other persons, employees of, or furnishers of raw material to Allen M. Sherman, and entitled to the lien provided by the first Article of the Code of Public Local Laws, sections ninety-nine to one hundred and three inclusive, who Avould contribute to' the expense of the suit.

This suit was instituted on the 2d of April, 1860, by the appellee against the appellants, upon their joint and several note, for $ 1,819, dated 14th January, 1858, payable ou demand to the order of the President of the Board of Trustees of the Maryland Agricultural College, in settlement of a balance found to he due to the trustees by the appellant, Robert Bowie; and by the President endorsed to the appellee.

The facts in this case, as also the exceptions which were tafeen at the trial below, are set out with sufficient fullness in the opinion of the Court.

The hill in this cause was filed on the 22d day of November, 1852, by William Ditto, trustee for the benefit of the creditors of Benjamin Cushwa, an insolvent debtor, to set aside a deed executed on the 14th day of November, 1826, by the said Benjamin to his brother, John Cushwa, as void under the insolvent laws of this State.

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

<p>Specific Performance — Injunction—Agreement—Practice.</p> <p>Where the object of the bill in equity is to obtain the specific performance of a contract, and the writ of injunction is asked for as ancillary thereto, the writ cannot be maintained unless the case presented by the bill would authorize a Court of Equity to enforce the contract.</p> <p>Every agreement to merit the interposition of a Court of Equity to enforce it, must be fair, just, reasonable, bona ficle, certain in all its parts, mutual, &c., and if any of these ingredients be wanting, Courts of Equity will not decree a specific performance.</p> <p>An agreement by A. to let B. retain possession of certain property from the 1st of July, 1866, to the 1st of July, 1867, upon his giving the same rent that A. “ might be able to obtain from other parties,” is not such an agreement as a Court of Equity will enforce. It lacks certainty and mutuality.</p> <p>In a summary proceeding by a landlord to eject his tenant, the latter is entitled to avail himself by way of defence, before the justice of the peace, and in the Court of Common Pleas on appeal, of whatever equitable right or claim he may possess under a contract for the renewal or extension of bis lease; and if the matter be decided against Mm in that tribunal, lie is not entitled to resort to a Court of Equity for relief.</p>

In this case a bill was filed by the appellee asking for the production of certain evidences of title, and for an injunction to restrain the appellant from further proceedings in a case in the Court of Common Pleas in Baltimore city, wherein the appellant was plaintiff and the appellee defendant, and in which a judgment had been obtained by the former in proceedings instituted under the provisions of Article 53 of the Code of Public General Laws, to dispossess the latter of…

This was an action of irover instituted on the 19th of March, 1864, hy the appellee, as insolvent trustee of John Springer, against the appellant to recover for the conversion of certain goods and chattels which had belonged to the insolvent, including one-half of the grain growing on the farm of the appellant, and which was occupied hy the insolvent as tenant.

Paul Hoye, of Washington county, died in 1816, leaving a will .dated 9th of April, 1813, by which he devised and bequeathed to his son John Hoye, and to Leonard M. Deakins, and to the survivor of them, several tracts of land in Allegany county, together with all the stock and farming utensils on the farm whereon his son, William W. Hoye, then resided in said county, and also certain negroes, in trust to permit and allow the children of his son William W. Hoye, to have the…

<p>Appeal from an order of the Orphans’ Court of Frederick County.</p> <p>The facts of the ease are sufficiently disclosed in the opinion of the Court.</p>

On the 27th of May, 1856, the appellant Sisk, as sheriff of Caroline county, sold under a fieri facias issued out of said Court, upon the judgment of Smith, Knowles & Co. vs. John Layton, entered to the use of the appellee, certain mill property of said Layton, known as “ Potter’s Mills.” The appellee became the purchaser for the sum of two thousand dollars, and executed his single bill to the appellant Sisk, as sheriff, for the purchase money, payable on demand.

The facts of the case will he found presented with sufficient fullness in the opinion of the Court. Two exceptions were taken in the Court helow by the appellant; the first being to the rejection of certain testimony offered in evidence, is omitted, inasmuch as it was not considered by this Court. 2d Exception: Upon the evidence in the cause the plaintiff submitted the following prayers : 1.

<p>Appeal from the Circuit Court for Allegany County!</p> <p>The facts of this case, as also the exceptions which were taken at the trial below, are sufficiently disclosed in the opinion of the Court.</p>

This was an action of Ejectment brought by the appellants to recover from the appellee parts of lots sixty-seven and sixty-ei^ht in Hook’s Addition to the town of Cumberland. Plea not guilty.

This was an action on an injunction bond, instituted by the appellant against the appellee.

<p>Indictment — Criminal Law.</p> <p>In an indictment founded on the 122d section of Article 80 of the Code of Public General Laws, charging an assault by unlawfully shooting at a certain person, and also an assault by attempting maliciously and unlawfully to discharge a loaded pistol at the same person, contrary to the form of the Act of Assembly, &c., it is necessary to charge the intent with -which the act is done, in the words prescribed in the Code, and an omission to do so, renders the indictment insufficient, and it will be so held upon demurrer.</p> <p>In an indictment for an offence created by statute, the offence must be described in the words of the statute, and when they are descriptive of the offence, it is necessary that the defendant should be brought within all the material words of the statute.</p>

This action was brought to recover certain sums of money alleged* to be due the estate of the plaintiff’s intestate. The declaration contained a count for money received by Thomas Devecmon for the use of Thomas E. White, the plaintiff’s intestate, and payable by John S. Coombs, as executor of Thomas Devecmon, and a count for money received by John S. Coombs, as executor of Thomas Devecmon, for the use of Mary E. White, as administrator of Thomas E. White.

This was an action of trespass quare clausum fregit, brought by the appellee against the appellant and Simon Long and Hamilton Downes. The declaration charged that the defendants broke and entered the plaintiff's close, and took and carried away a quantity of corn, the property of the plaintiff.

<p>Demurrer — Indictment—License Law.</p> <p>A demurrer opens for review all the previous pleadings, and notwithstanding the defectiveness of the pleading demurred to, the Court in criminal as well as in civil proceedings, gives judgment against the party who in pleading committed the first error.</p> <p>An indictment charging a sale of merchandise in violation of the license law, must set forth the name or names of the persons to whom the sale was made, or allege that they were unknown. And the omission to do so, is a fatal defect not cured by the Act of 1804, ch. 18.</p> <p>All the Acts of Assembly relating to licenses, form one entire system, and must be construed together. By imposing penalties for the violation of the provisions of these laws, the legislature intended to protect the revenue of the State from fraud, but did not intend to impose penalties for violations of the law, when none were intended.</p> <p>Where a trader’s license is taken out by a partnership, and one of the partners assigns his interest to' his associate, and retires from the firm, the business may be continued by the remaining partner, under the same license.</p>

Appeals from the Circuit Court for Allegany County. The first appeal in this case, being from the judgment rendered against the appellants, who were defendants below, was before this Court on a previous occasion, when the appeal was prosecuted by the Cumberland Coal and Iron Company alone, and the same was dismissed upon the ground that it was so prosecuted by one only of four joint defendants. (See 21 Md.

This was an action of Ejectment brought by the appellee against the appellant. Such of the facts as are material to the case presented by the appeal, are stated in the opinion of the Court. The plaintiff offered seven prayers, all of which, except the first and second, were rejected by the Court below, (Weiskl, J,,) and no appeal was taken from such rejection.

Appeals from the Equity side of the Circuit Court for Allegany County. Prior to the third day of October, 1849, the children and descendants of David Lynn, deceased, were seized and possessed as tenants in common, in fee, of a valuable real estate, situated in Allegany county, which had been devised to them by the will of their ancestor. The devisees, of whom George Lynn, the husband of the appellant, was one, took equal shares under the will.

Cross Appeals from tlie Equity side of the Circuit Court for Allegany County. On the 17th of June, 1856, John T. Greenwade executed a mortgage to Charles Ridgely, Moses T. Greenwade, George C. Perry and Samuel D. Brady, conveying to them all his real estate, and two negro boys, Jim and Bill, as an indemnity to them, and to secure them against any loss they might sustain by reason of their having become his sureties on two bonds, as recited in said mortgage.

This was an action instituted by the appellee against the appellant, on the 19th of September, 1862, in the Circuit Court for Allegany County, to recover for injuries sustained by the former, while employed by and at work on a railroad of the latter. The defendant pleaded that it did not commit any of the wrongs alleged, and that the injury complained of was caused solely by the negligence and want of care of the plaintiff.

This is an action of Ejectment brought by the appellee to recover Military Lot, No. 3,905, in Allegany county, and was tried before KeverdiA Johnson, Jr., as Special Judge. The facts are sufficiently stated in the opinion of this Court. The plaintiff, at the trial, offered the following prayers: 1.

The hill in this case was filed on the 1th of October, 1861, by William Twigg, against the Commissioners of Allegany county, John Young,… Held: that the cross-bill was improperly filed; first, because it was not material to the complainant how superior their title might be to that of their co-defendants — that was a question to be settled among them — and here any claim for partition between Young and Kelly, was immaterial to the complainant, so long as his own title might…

*•' Cross Appeals from the Circuit Court for Allegany County. The facts of the case, together with the numerous exceptions taken at the trial below, are sufficiently disclosed in the opinion of the Court.

This was an action of Replevin brought on the 18th .September, 1863, by the appellees against the appellant. It appears that a certain John Young leased to one John A. Rinehart certain premises in the town of Cumberland, which he entered upon and occupied as a dwelling, until the 12th of September, 1863, with his wife and children, and having the property in controversy on the premises, for the use of himself and family.

This is an appeal from a decree of the Circuit Court of Baltimore City, perpetuating an injunction to restrain execution upon a judgment rendered in an action at law. The facts of the case will appear sufficiently stated in the opinion of the Court.

Writ of Error to tho Circuit Court for Carroll County. The appellee was indicted in the Circuit Court for Carroll County, at November Term 1866, on the five following counts, viz: 1st. That he did on the 20th October, 1866, &c., make an assault with an intent, John T. Leverall feloniously, wilfully and of his malice aforethought, to kill and murder, contrary, &c. 2d. That he did on that day, &c., with a certain pistol, loaded with gunpowder and hall, unlawfully shoot at John…

On tbe 7th of February, 1865, in the Circuit Court of Baltimore City, the appellee filed a bill for divorce a vinculo matrimonii against her husband, William J. Hamill, alleging adultery and abandonment, and that ho was beyond the jurisdiction of the Court, and asking alimony pendente libe, and alimony, and the appointment of a receiver to take charge of the property of her husband, including an establishment for the refining of coal oil, and also that an injunction might…

The appeal in this case was taken from a decree of the Circuit Court of Baltimore City, granting a perpetual injunction, to restrain proceedings at law, upon a fierifacias issued out of the Court of Common Pleas of Baltimore City, on a judgment rendered by the said Court on the 14th of January, 1863, in a suit in which the appellants, Wm.

These two cases present substantially the same questions. John W. Willson was twice married. The surviving children by the first marriage, with the husbands of three of the daughters respectively, are the appellants in these cases.

This suit was instituted 18th August, 1864, in the Circuit Court for Baltimore County, whence it was subsequently removed to the Superior Court of Baltimore City. It was an action brought on the official bond of George H. Carman as Clerk of the Circuit Court for Baltimore County, to the use of John EL Longnecker, his successor in office, suing in his official capacity.