Volume 28 — Maryland Reports

<p>Construction of the Constitution of 1864 — When salary, may he rightfully claimed.</p> <p>Under the Constitution of 1864, an election was held on the 7th of November, 1805, for a Judge of the 12th Circuit, when S., the incumbent elected in 1855, and E., were the opposing candidates ; the latter was returned by the judges of election as duly elected, was commissioned by the Governor, and on the 29th of November, 1865, took the oath of office andi entered upon the discharge of its duties. S. contested the election of E., and the House of Delegates decided that the former, and not the latter, had been duly elected. S. was thereupon commissioned by the Governor, and on the 14th of Eebruary, 1866, qualified and entered upon the duties of his office. Held :</p> <p>That under the 7th section of the 1st Article of the Constitution, S. could not be considered as in office, though elected in November, 1805, until ho had qualified, after receiving a commission, by taking the oath prescribed in said section.</p> <p>The issuing of the commission and the taking of the prescribed oath by the party, are conditions precedent to the complete investiture of the office, and no person can lawfully exercise the functions of Judge, or have a rightful claim for salary as such, until these conditions have been complied with; such qualification does not relate back to the day of the election of the Judge, and entitle him to compensation from that time.</p> <p>That notwithstanding S. was in office at the time of the election, and was continued as Judge until the expiration of the term for which he was originally elected and until his successor should be elected and qualified, he was superseded by the commission and qualification of i\, as effectually as if the election of the latter had been subsequently confirmed by the House of Delegates.</p>

<p>Appeals from the Orphans’ Court of Montgomery County.</p> <p>A caveat to the will of Tilghman "Waters, was filed in the Orphans’ Court of Montgomery county; plenary proceedings were ordered; the petition of the caveators (now appellants) and the answer of the caveatees (now appellees) thereto, were filed; and issues were sent by the Orphans’ Court to the Circuit Court for Montgomery county, and removed from thence, at the instance of the caveators to the Circuit Court for Howard county, and from thence at the suggestion of one of the caveatees to the Circuit Court for Anne Arundel county for trial. The case was tried at the October term, 1865, of said Court. Upon the first trial, the jury found on the first issue, that the paper purporting to be the will of Tilghman Waters, was executed by him when he was not of a sound and disposing mind, and capable of making a valid deed or contract; on the second issue, that the said paper was executed and attested as required by law to pass title to real estate; on the third issue, that the said paper was not executed by Tilghman Waters under the influence of suggestions and importunities, when his mind from its diseased or enfeebled state was unable to resist the same; on the fourth issue, that the said paper and the execution thereof, was the free and voluntary act of Tilghman Waters, to which he was induced with a knowledge of its contents, and without the exercise of a dominion and influence by any person or persons, which prevented in his then condition, the exercise of a sound discretion ; on the fifth issue, that the execution of said paper was not procured by undue influence, fraudulent devices, importunities, misrepresentations and deceits practised on the said Tilghman Waters; on the sixth issue, that the execution of said paper was not procured by the exercise of an undue influence, dominion or control, obtained over the said Tilghman Waters, by his wife, Ellen M, Waters, and which in his then condition he was unable to resist; and on the seventh and last issue, that the said Tilghman Waters was not at any time subsequent to the execution of said paper writing, desirous of altering or cancelling the same, and was not prevented from so doing by management, fraud, undue influence or importunities. A motion was thereupon made by the caveatees for a new trial, upon the grounds, that the verdict was against the evidence and the weight of evidence; and of inconsistency between the issue found for the caveators and those found for the caveatees. The motion for a new trial was granted. An appeal was taken by the caveators from the order granting a new trial, and the appeal was dismissed by this Court. (See Waters vs. Waters, 25 Md. Hep., —.) Upon a second trial, the jury found a verdict upon all the issues in favor of the caveatees. The record, with a certificate of the Judge, (Mag ruder) certifying to the finding of the jury on the last trial, was transmitted to the Orphans’ Court of Montgomery county. The caveators then filed their petition in said Court, alleging that the record so transmitted was not properly certified, in this, that the Judge of the Circuit Court for Anne Arundel county had not ordered a full transcript of all the proceedings in said case to be certified, and that it did not appear from the certificate of the said Judge, how the case originating in the Orphans’ Court of Montgomery county, came into the Circuit Court for Anne Arundel county for trial, or by what authority the Judge of that Court certified in the case to said Orphans’ Court; and praying that the record should be remanded to the Circuit Court for Anne Arundel county for amendment, so that the whole and complete record in the case should be brought before the Orphans’ Court.</p> <p>The Orphans’ Court, by order of the 7th May, 1867, refused the prayer of the petitioners, and from this order the first appeal is taken. The second appeal is from an order of the said Orphans’ Court, passed on the 18th June, 1867, dismissing the petition of the appellants, filed the 23d April, 1867, and the amended petition, filed 28th May, 1867, without prejudice to the rights of the petitioners, on the final hearing of the cause, and also adjudging that the Court would not proceed to final decree in the cause, (the admission to probate of the will of Tilghman Waters, and granting letters testamentary to the executor,) until the appeal taken from the said order of the 7th May, 1867, should be determined by this Court. The two appeals were argued together.</p>

This appeal is taken from the action of the Orphans’ Court of Baltimore city in passing certain orders in the matter of the estate of Joseph M. Levy, deceased.

Cross Appeals from the Orphans’ Court of Baltimore City. The facts in this case, in so far as they are needful to an intelligent understanding of the principles decided, will be found stated with sufficient clearness and fulness in the opinion of the Court.

<p>Appeal from the Circuit Court for Howard County.</p> <p>The facts of the case will be found sufficiently stated in the opinion of the Court.</p>

This is an appeal from the decision of the Circuit Court for Baltimore county, refusing the application of the appellant for a mandamus to compel the appellees to pay him a sum of money, the balance of salary, which he claimed was due him as commissioner under the Act of I860, ch. 146, which was “ an Act to provide for the completion of the restoration of the records and papers, destroyed or injured by fire, in the office of the cleric of the Circuit Court for Baltimore…

This appeal was brought before the Court on the original papers, under the 25th section of the 5th Article of the Code of Public General Laws. The original bill in this cause was filed in 1860.

This was an action of trespass quare clausum fregit, instituted by the appellee against- the appellant in the Circuit Court for Baltimore county, on the 9th of June, 1855. The trespass complained of was the removal of a fence, forming part of the enclosure of a field of about seventy acres in Long Green valley, in said county. Two juries, sworn in the case, failing to agree, were discharged.

The will of John Higgins, of Prince George’s county, having been offered for probate in the office of the Eegister of Wills of said county, the appellants on the 9th of July, 1866, filed a petition and caveat, which the appellees’ executors appointed by said will, answered; and upon the prayer of the appellants, the Orphan’s Court of Prince George’s county, sent six issues to the Circuit Court for said county, for trial.

Appeals from the Circuit Court for Prince George’s County, in Equity. The bills of complaint in this cause were filed by certain creditors of John Contee, deceased, the first on the 13th, and the latter on the 30th of June, 1864, alleging the insufficiency of the personal estate for the payment of his debts, and praying for a decree for the sale of the real estate.

<p>Appeal from the Circuit Court of Baltimore City.</p>

At the trial of this cause below, the plaintiff took two exceptions, the first of which is here omitted, as the question presented by it, was deemed by this Court unimportant to either party.

The facts of the case are stated with sufficient fulness and clearness in the opinion of the Court, together with the first and second exceptions, which were taken in the Court below.

This was a suit brought upon an appeal bond,- the conditions of which will be found set forth in the opinion of this Court. The breaches were assigned in the declaration.

<p>Husband and Wife — Wife’s Separate estate — A Bill of Sale void as to Creditors.</p> <p>The receipt and appropriation by a husband of money, constituting the separate estate of his wife, with her knowledge and acquiescence, does not establish the relation of debtor and creditor between them, and entitle the wife to compensation out of the husband’s assets, unless at the time of such receipt he expressly agreed to repay the money so received and appropriated.</p> <p>A husband voluntarily executed a bill of sale, to secure to his wife a sum of money, constituting her separate estate, which he had received with her knowledge and acquiescence, and invested in his business, but-which at the time of such receipt, he did not agree to repay. Held :</p> <p>That such conveyance was void as to prior creditors, it not appearing that the debtor had other property sufficient to satisfy their demands.</p>

Circuit Court for Charles County. The facts of the case are sufficiently stated in the opinion of this Court. At the trial below the plaintiffs offered the following prayer: That the lien of the judgment in the scire facias mentioned, on the lands and premises, has not been extinguished or cleared by the evidence offered on the part of the defendant.

This case was before this Court on a former occasion, (vide 22' Md. Rep., 447,) on an appeal from an order, dated the 21st of April, 1863, granting an injunction to prevent Richard S. Blackburn, the administrator of Dr. David Craufurd, and one of the present appellees, from making distribution of the estate of his intestate.

Tho appellants filed their petition in the Superior Court of Baltimore city, on the 29th November, 1867, claiming to he tiie duly appointed, commissioned and qualified constables of the nineteenth ward of said city, and alleging that the appellee, was unlawfully exercising said office, and praying for a writ of mandamus, commanding him to vacate the same.

This was an action of trover instituted on the 19 th of August, 1863, by the appellee against the appellants for the conversion of a crop of wheat. At the trial, the plaintiff produced evidence to show that the crop of wheat in controversy was sown by him in the fall of 1862, while the land was in his possession and ownership, and that the same was cut in the summer of 1863, by Thomas T. Coekey, one of the defendants, and converted to the use of both.

The bill in this case was filed in the Circuit Court of Baltimore city, on the 6th of October, 1866, by the appellee, against The National Express… Held: and in fulfilment of a pledge given to them; the provision for paying employees and rail road companies for services to be rendered during a short period after the deed was made, was a necessary part of the provisions for the winding up of the affairs of the company in a manner beneficial to its creditors, and allowing the…

At the trial below, the plaintiff offered the following prayer: If the jury shall believe from the evidence that the defendant gave to the plaintiff, the negro man Bill, verbally, and that in pursuance of said gift, the defendant delivered possession of said negro to the father of the plaintiff, his natural guardian, and shall further believe that subsequent to said gift aud delivery, the defendant converted the saiu negro to his own use, they must lind for the plaintiff.

The declaration counted on a demise from Benjamin M. Dennis, for seventeen acres and thirty square perches of land on the Harford Turnpike, in Baltimore county. The notice by the casual ejector was addressed to Thomas Kelso.

Mary E. A. Reed, of Caroline county, bequeathed a moiety ©f the residue of her estate, left after payment of debts, costs ©f administration and certain specific and pecuniary legacies, to “the Methodist Episcopal Church at Greensborough.” Shortly after her death, letters testamentary wore granted by the Orphans’ Court of Caroline county to the executor, Charles Warren, of Delaware, who with the other defendants, citizens of the same State, and Parran Taylor, of Caroline…

This is an appeal from the judgment of the Criminal Court of Baltimore, dismissing an appeal from the award of the Commissioners for Opening Streets, in the matter of the opening of West street. The Ordinance for condemning and opening West street was approved 25th July, 1857.

The appellee, on the 28th of October, 1863, sued out an attachment on warrant, against the appellant, a non-resident, to recover $502.56, alleged to be due on open account. To this action the appellant appeared, after giving bond, with surety, to pay and satisfy any judgment that might be recovered against him. The attachment being thus dissolved, the appellee filed his declaration, with the usual money counts, claiming $5,000.

This wras an action of assumpsit, brought by the appellee to recover the sum of $1,000, which he claimed to be due him for'one year’s salary, as secretary of the appellant. The bill amounting to $1,000, was filed with the declaration, together with an affidavit that the appellant was justly and bona fide indebted to the appellee in said sum. The declaration claimed $1,500. The cause was tried, and the jury found a verdict in favor of the appellee for $1,000.

This was an action on the case, against the appellant, brought by the appellee, for the seduction of his daughter, under twenty-one years of age, per quod servitium amisit. This suit was instituted in the Circuit Court for Carroll county, and thence removed, upon the suggestion of the appellant, to Howard county, where it was tried before the Hon. Peter Wi Crags*, Special Judge.

This was an action of Ejectment, brought by the appellant to recover a lot of ground situated in Ellicotfc’s Mills, Howard county.

As appeal from the Superior Court of Baltimore City. At the trial below, the appellee, the Baltimore and Ohio Rail Road Company, offered four prayers, which were granted.

On the death of Eichard S. Blackburn, the administrator of David Craufurd, the Orphans’ Court of Prince George’s county in December, 1867, granted letters of administration da bonis non upon the personal estate of said Craufurd, to the appellee, William F. Turner.

On tbe 12th of November, 1859, the appellant caused an attachment on warrant to be issued out of the Superior Court of Baltimore city, against the appellee on a promissory note for §859.65, and an open account of §24.90, with interest on §23.61, part of the latter, from the 3d of September, 1859. On the 15th November, the attachment was laid in the hands of garnishees and levied on property of the appellee. The latter thereupon appeared and dissolved the attachment by bond.

‘Spalding and John D. Brandt, co-partners, trading as B. W. Spalding & Brandt, against Edward Griffith. After Mr. Spalding’s death in 1862, the suit was prosecuted by the appellant as surviving partner. The cause of action was a promissory note held by the plaintiff, dated March 27th, 1851, for $1,200, drawn by John Higinbotham in favor of the defendant, and by him endorsed, payable four months after date, and protested at maturity for non-payment. ..

The appellees, together with Robert Garrett, since deceased, instituted, against Edward Griffith, since deceased, in the Circuit Court for Harford county, in the year 1854, five separate actions, which were subsequently removed to the Circuit Court for Cecil county, and there, by an agreement of counsel, consolidated and tried as one.

This was an action of assumpsit by the appellee, as holder, against the appellant, Edward Griffith, as endorser, of three promissory notes for $1,200 each, all drawn by John Higinbotham in favor of and endorsed by the appellant, dated respectively the 16th, 20th and 23d of June, 1851, and '¡payable four months after date. The suit was brought in Harford County Court, on the 14th of November, 1851, the narr. being in the usual form.

.Appeal from the Circuit Court for Talbot County. This was an action of assumpsit brought by the appellees against the appellant, administrator of Eichs.

On the 9th of October, 1858, execution was issued on a magistrate’s judgment in Baltimore city, under which certain real estate was sold to the appellants Kinnear & Willis, the former of whom was the judgment creditor. The sale was duly reported to the magistrate, by whom a return of the proceedings was made to the Superior Court of Baltimore city for ratification.

<p> Plea in abatement after a Plea in bar. </p> <p>In an action on two promissory notes, the defendants pleaded “ never indebted as alleged,” and “did not promise as alleged;” — subsequently, by leave of the Oourt, they1 added the further plea of “payment,” and issues were joined on these pleas. After the issues had been thus joined, and the jury were about to be sworn, the defendants asked leave to further amend their pleadings, by filing a plea in abatement, a plea of set-off and an account in bar. Held :</p> <p>That this application for leave to amend, was one entire proposition, and oould only be so regarded by the Oourt; and as it sought to interpose a plea in abatement, after pleas in bar to the action had been filed, it was properly refused.</p> <p>It is well settled that a plea in abatement cannot be received after a general imparlance, nor can it be pleaded after a plea in bar, Unless the matter in abatement has arisen since the filing of the plea in bar, and then only when it is done at the first opportunity that offers after such matter has arisen.</p>

The lessee of the appellants brought an action of Ejectment in the Superior Court of Baltimore city, to recover part of a tract of land, called “Upton Court Resurveyed,” lying on the middle branch of the Patapsco river, within the city of Baltimore. The declaration was in the common form.

<p>Evidence — Commissioners to Eay out and condemn Public roads. — Duty of County Commissioners to keep the Public roads in proper repair.</p> <p>In an action by T. against the Commissioners of Baltimore county, to recover damages for an injury to his mill-dam, &c., at Uchester, from an overflow of the Patapsco, and which injury it was alleged was caused by the erection of a wall, by the defendants, upon the public road on the Baltimore county side of said stream, contiguous to and above the dam. Held :</p> <p>That it was competent for th e defendants to offer in evidence the Act of 1831, chap. 27, authorizing the building of a bridge at Ilchester, and which recognized the road in question as a public road, when the same was accompanied by proof that B. under whom the plaintiff claimed title, was cognizant of the application to the Legislature for the passage of the law, know and approved of its provisions, and acted under it as one of the Commissioners. Such testimony was evidence of an admission by E. that the road was a public road, and it also showed a recognition of that fact by the Legislature.</p> <p>That the record of proceedings in 1835, for the condemnation of the road, was also admissible as evidence on the part of the defendants.</p> <p>That the opinions of the three persons appointed by iho County Commissioners to examine the wall complained of, as to its probable effect upon the property of the plaintiff, was not admissible evidence on the part of the plaintiff for the purpose of proving, that but for the said wall, the water when high could escape around tins abutment of the dam, and also that said wall would injiue or damage said dam or mill property.</p> <p>After the final ratification of the return of Commissioners appointed to lay out and condemn a public road, their proceedings cannot bo collaterally impeached, either on ihe ground that no damages or insufficient damages had been valued and ascertained by the Commissioners.</p> <p>The law easts upon the County Commissioners not only the right but the duty to protect the, public roads from injury, and keep them in proper repair for the use of the public: individual rights must be held and enjoyed in subordination to those of the public. And if by reasonable or necessary improvements to a highway, a party suffers consequential damages, it is damnum absque injuria, and no right of action accrues to him.</p>

Tliis case was before this Court at December Term, 1863, when the -judgment of the Court below was reversed and the case remanded under a -procedendo. For the nature of the plaintiffs’ claim, the pleadings and the general character of the evidence, which latter was substantially the same on both trials, see the report of that case, (Adams vs. Capron, et oJ., 21 Md. Rep., 186,) and the opinion of the Court in this case.

<p>Appeal bond — Evidence—Wind may be Mecovered in an Action on an Appeal bond— When the Might of • Action on an Appeal bond accrues — What constitutes a Breach of the Condition of an Appeal bond —Interest not allowed on Costs — Fractice in the Court of Appeals.</p> <p>A decree was passed on the 10(h of June, 1863, for the sale of certain mortgaged real estate; — on the 10th of September, following, an appeal was taken from this decree, and on the same day an appeal bond, dated the 13th of August, previous, was filed in the cause and approved by the Court. The decree was affirmed in the appellate Oonrt on the 4th of October, 1804, with costs to the appellees. An action was brought on the appeal bond by the appellees — the declaration sotting out the condition of the bond and alleging breaches. The bond referred to the decree, the Court and the parties in the cause. Held :</p> <p>1st. That the bond speaks from the time of its filing and approval, and not from the day of its date.</p> <p>2d. That the bond being properly described and counted on in the pleadings, was admissible in evidence thereunder.</p> <p>3d. That the decree and the proceedings in which it was passed, were sufficiently described in the declaration, to allow the record in the equity case, and the record of the affirmance of the decree by the Court of Appeals, to be admitted in evidence under it.</p> <p>4th. That the plaintiffs were entitled to recover under that declaration for all loss and injury, coming within the terms of the condition of the bond, which they could show had resulted to them by reason of the appeal, at least to the time of suit brought; and were not confined to the recovery merely of the costs in the appellate Court and loss of interest.</p> <p>5th. That the action on the bond was properly maintainable, notwithstanding, that at the time the suit was instituted, there had not been a final distribution of the fund derived from the sale of the mortgaged property.</p> <p>6th. That the affirmance of the decree, was a breach of the condition of the bond, and a right of action thereon then accrued to the plaintiffs.</p> <p>7th. That the record of the equity case and of the case in the. Court of Appeals, were competent evidence to establish as against the surety in the appeal bond, the amount of the plaintiffs’ mortgage claim against the principal.</p> <p>8th. That the costs of the records used in evidence at the trial could not be recovered as part of the plaintiffs’ claim, and thus bear interest from the date of the judgment; they were part of the costs of the trial, to be taxed by the clerk, and was recoverable only as such.</p> <p>9th. That interest upon the whole principal of -the mortgage debt, from the date of the appeal to the date of the affirmance of the decree, was not allowable, inasmuch as the property did not sell for enough to pay this amount, after payment of expenses, coinmisidons and prior liens; — interest was allowable upon the sum which was applicable to the mortgage debt, as of the date of the appeal, from that date to the date of the affirmance of the decree, and as this was the amount of interest actually lost by reason of the appeal, and was payable immediately upon the affirmance of the decree, interest thereon from that date to the time of trial was proper to be allowed.</p> <p>By the Chancery practice of this State, the proceedings prior to the decree though not recited in are in effect parts of it. and all errors in such proceedings are open for revision, on appeal from the decree.</p>

<p>Appeal from the Superior Court of Baltimore City.</p>

The bill in this case was filed by William O’Brien, on the 4th of December, 1857, to set aside a deed from C. Leiman to Harman Sehaferman, dated 30th of September, 1852; it alleges that Leiman being indebted to one R. W. Pendleton, on the 18th of September, 1852, was sued by him on the 25th of October, 1852, and judgment recovered on the 9th of June, 1853; this judgment the complainant alleged he bought on the 1st of December, 1857.

Annie M. Hopkins, by her last will and testament, which was filed and admitted to probate in the Orphans’ Court of Howard county, on the 19th of April, 1864, appointed John Snowden and R. P. Snowden, trustees and executors, and to them devised and bequeathed- all her property in trust, for the sole and separate use of her sister, Mrs. Rachel Tyson, for life, (except one hundred dollars annually of the income, to each of the children of Mrs. Tyson,) and after her decease, to…

This appeal was taken by the defendant from an order of the Circuit Court of Baltimore city, (Pulkstew, J.,) granting an injunction to restrain him from running a steam ferry boat between the foot of Broadway, on Fell’s Point, and the foot of Haubert street, on Locust Point. The nature of the case is fully stated in the opinion of the Court.

This appeal was taken from an order, passed on the 2d of' April, 1866, continuing an injunction which had been previously granted, on the application of the appellees, to stay an execution on a judgment recovered against them by the appellant. The facts of the case are sufficiently stated in the opinion of this Court.

An action was instituted by the appellee in the Court of Common Pleas, to recover from the appellant damages for deceit in the sale of a piano. The appellant pleaded that he did not deceive the plaintiff.

This was an action of Ejeetmeni, brought by the lessors of the plaintiff, (now appellants,) for five-sixths of one-third of a lot of ground in the village of Mount 'Wasliington, in Baltimore county.

This was an action instituted on the 19th of April, 1864, in the Court of Common Pleas, by the appellees as co-partners against the appellants, also co-partners in trade, to recover for fish alleged to have been sold and delivered by the former to the latter, and was by consent submitted for trial to the Court, without the intervention of a jury.

The facts of the case are sufficiently stated in the opinion of the Court. Exception: The plaintiff offered the following prayers: 1.

<p> Liability of Rail Road Companies. </p> <p>In an action against a rail road company hy one not a passenger, nor in the service of the company, to recover damages for an injury alleged to have been caused by the negligent and careless driving of a car of the defendants, by one of their agents or servants, the plaintiff is not entitled to recover, if the defendants exercised ordinary care and diligence . in the management of the car at the time of the accident; and the onus of proving the absence of such care and diligence is on the plaintiff.</p>