Volume 29 — Maryland Reports

The facts of the case are sufficiently stated in the opinion of the court. The following rules on the equity side of the Circuit Court for Howard County, were relied on in the argument : Rule 4.

By the petition filed in this cause on the 17th of May, 1859, and the order of the 18th of May, 1859, passed thereon, the appellants became parties to this cause. Hays v. Miles, 9 G. & J. 193; Baltzell v. Foss, 1 H. & G. 504; Balch v. Zentmeyer, xx G. & J. 267.

A bill was filed in the Circuit Court of Baltimore City by Frederick Fickey, Jr., and Andrew J. Fickey, against George E. Chenowith and Thomas M. Dukehart, alleging the existence of a co-partnership between the complainants and the defendants under the name of Fickey Brothers, for the purpose of manufacturing and selling a certain reaping and mowing machine, for which said Chenowith had obtained a patent right; and asking for a dissolution of the partnership, a settlement of…

The will of Chloe M. Houck, was admitted to probate by the Orphans’ Court of Carroll County, and letters testamentary on her estate were granted to Jacob J. Houck, on the 3rd of September, 1866; on the same day an order was passed, directing the executor to sell, pursuant to a direction contained in the will, the real estate of the testatrix, situate in said county, and the same was sold on the 20th of October following to the appellant, the husband of Ann Shultz, one of the…

of the testator’s daughter Elizabeth. The testator, by his last will and testament, dated the 16th of June, 1846, after making certain bequests and legacies, gave all the rest, residue and Remainder of his estate, real and personal to his wife, Ann Meyer, and John Eisler, in- trust, to hold the same and every part and parcel thereof, with the surplus or unappropriated revenue or income arising from the same, as follows: “To hold the same in trust, and from time to time to…

That his right to recover the one undivided eighth part of the premises in controversy, if otherwise made out to the satisfaction of the jury, is not barred by the decree in the cause in chancery, nor by the sale thereunder, nor by any other proceeding had in said cause. 2.

91, alleged to be due the former, by the latter, as trustees, for city taxes for the years 1863, 1864 and 1865, on certain bonds of the Baltimore and Ohio Railroad Company, and of the State of Maryland.

Carter assigned his term to William Pratt,' who mortgaged the same to the appellant, who on the 25th of December, 1856, assigned the mortgage to the appellee, who Nailed to have the same recorded according to the provision of the registry law. The mortgage was not paid, when the same became due. The owner of the fee sued the'appellant for the rent and taxes reserved under the lease, and which had become due and payable, and obtained a judgment therefor, which was paid.

Cross Appeals from the Circuit Court for Baltimore County. This case was before this court on a former appeal, and may be found reported in 20 Md. 62, where the facts are very fully stated. By the decree of this court passed upon that appeal, the order of the Circuit Court, continuing the injunction, was affirmed, and the cause remanded for further proceedings.

This was an action of debt on a sealed instrument, brought by the appellees against the appellant on the 2nd of April, 1863. The verdict being in favor of'the appellees, the appellant moved an arrest of judgment for the following reasons : .First.

This action was brought by the appellee, against the appellant, for a breach of warranty of title in the sale of a horse, and. to recover the value of the same.

By Ord. No. 58, of the Mayor and City Council of Baltimore, approved September '2.5th, 1865, entitled “ an Ordinance to provide for the building of a new City Hall,” it was enacted that the Mayor should appoint, subject to the approval of the Council in convention, four persons, whose qualifications were prescribed, who, together with the Mayor, should constitute the Building Committee of the new City Hall, whose duty it should be to superintend its erection.

*Appeal from the Circuit Court of Baltimore City. . On the 24th of July, 1865, Catherine Stein, (the appellee,) executed to 'Charles Henkel a deed of certain real estate in Baltimore, for the consideration therein expressed, of $2,075. On the same day Henkel mortgaged the same property to the East Baltimore Mechanics’ Building Association No. 5, for the sum of $2,250.

The Act of 1798, ch. 101, superseding all previous laws on the subject, and in many particulars departing from their provisions, established in Maryland a complete and independent testamentary system.

* Appeal from the' Circuit Court of Baltimore City. As the estate became vested in the intestate, by purchase, it falls within the Code of Pub.

On the 29th of May, 1852, the appellees, Columbus W. Ford, and Daniel Trowbridge, constituted the firm of Ford & Trow-bridge, in Baltimore City. The appellees, William D. Miller and William E. Mayhew constituted another and a large com-' mercial firm in said city.

<p>Contracts ; breach ; damages. Liability of telegraph companies. Appeals only from final orders.</p> <p>An order overruling a motion to enter a judgment by default, is a mere interlocutory judgment, leaving the case upon the docket for final trial and adjudication and determining nothing final between the parties. (a) p. 165</p> <p>It is well settled that no appeal can be prosecuted until a decision has been had in the court below, which finally concludes the rights of the parties to the action. p. 165</p> <p>A suit against a telegraph company for damages sustained by the failure of the company to transmit a dispatch ordering a sale of gold, is a claim for unliquidated damages, and not embraced within the meaning of Art. 4, secs. 166-169, of the Code of Pub. Local Laws, which relate only to an ascertained amount of liquidated indebtedness, which the plaintiff can properly and safely swear the defendant owes to him. (b) pp. 165-166</p> <p>Where a precise sum for damages is not agreed upon, and is not of the essence of the contract between the parties, the quantum of damages is unliquidated, and it is for a jury to assess them; but where the precise sum has been fixed and agreed upon by the parties, that sum is the ascertained and liquidated damages, and the jury must assess that amount, no more and no less, (c) p. 166</p>

<p>Warehousemen ; liability op.</p> <p>H. delivered to the Central Ohio R. R. Company, at Newark, Ohio, two hundred and fifty barrels of coal oil to be transported to Bell Air in the same State, by the said company, thence via the B. and O. R. R. to Baltimore, thence by steamer to New York, to be delivered to S., or his assigns. The oil was delivered to the Baltimore and Ohio R’. R. Company, at Bell Air, and reached Baltimore, where it was placed in an open lot near their warehouse on Locust Point, and thence forwarded to New York, where upon its arrival, it was ascertained there was a deficiency in quantity of sixty-seven barrels. Held:</p> <p>That the responsibility of the proper custody and- storage of the oil after it was unladen from the cars in Baltimore, attached to the Baltimore and Ohio R. R. Company, as warehousemen and forwarders, and they were bound to use ordinary care and diligence in its protection, (a) ' p. 176</p> <p>A. S. was entitled to recover from the Baltimore and Ohio R. R. Company, for such loss of the oil by leakage, while in their custody after it was unladen from their cars, as was occasioned by their neglect or want of ordinary care as warehousemen and forwarders, as could be established to the satisfaction of the jury by competent and admissible evidence. „ p. 177</p> <p>^Warehousemen and forwarders in regard to the commodity intrusted to their charge are bound to use ordinary care and diligence, such as a prudent man would exercise over his own property of like nature; and such care should be proportioned to the injury or loss likely to be sustained by the absence of it. pp. 174-175</p>

The questions presented in this case, arise from a contest between the appellant and the appellee, as to the equitable distribution of the money, the proceeds of the sale of the real estate of Joseph A. Lechlider, an insolvent, each claiming as creditor a prior lien. On the 30th of March, 1854, James M. Weddle, a former owner of this real estate executed a *mortgage to the appellant’s intestate for $2,500, with interest, payable on the 1st of April, 1865.

The bill in this case was filed by the appellants, as owners of certain lots in Ellicott City binding on a road or street *which they claimed had been dedicated, as a public highway, thirty feet… Held: 9 Eng. Law & Eq. 104; Corning v. Lowerre, 6 John. Ch. 439; Lamborn v. Covington Co. 2 Md. Ch. 412; 2 Story Eq. secs. 926, 927, etc.; Jerome v. Ross, 7 John. Ch. 330.

Inasmuch as a,portion of the conversation which was favorable to the plaintiff had been given and was before the jury without objection, the whole conversation was admissible, and the plaintiff could not exclude what was supposed to be against him. Bull v. Schuberth, 2 Md. 59: Bowie v. Stonestreet, 6 Md. 43T ; t Greenl. Ev. sec. 201.

Appeals from the Superior Court of Baltimore City. The bill in the above first entitled cause, was filed by the appellant, on the 9th of April, 1864. It stated that on the *ist November, 1862, Richard France, then of Baltimore City, seized of a large amount of property therein, greatly encumbered with judgments confessed by him, and on which some executions had issued, conveyed his equity of redemption therein to W. C. France, who conveyed it afterwards to the appellant.

The bill in this case filed'- by the appellants on the 17th of June, 1864, stated that the appellants, Josiah Lee Johnston and Henry E.… Held: as the only available security. He insisted that forasmuch as Ritter, before whom his mortgage was acknowledged, and the affirmation of consideration made, was a Justice of the Peace of Baltimore County, when said acknowledgment and affirmation were made ; that said acknowledgment and affirmation were as valid if made in Baltimore…

* Appeal from the Superior Court of Baltimore City. On the 29th of March, 1864, the appellees sued out an attachment in the Superior Court of Baltimore City, against John P. Derr, making oath under the Act of 1864, ch. 306, that the said Derr was bona ñde indebted to them in the sum of six thousand dollars over and above all discounts, and that they “had good reason to believe that the said Derr, the defendant, was about to assign, dispose of, or conceal his property, or…

This action was brought by the appellee to recover damages for the failure of the appellant to transmit a dispatch ordering a ■•sale of gold. The facts are sufficiently stated in the opinion of the court.

This action was brought against the appellant, for the use of Mary Miller and John Miller, the equitable plaintiffs, to recover damages for the killing of one Otto G. Miller, who was the husband of Mary, and the father of John.

<p>Appeals ; changes in law before decision. Removals of Causes.</p> <p>An action of ejectment was instituted in the Circuit Court for Baltimore County, and upon the suggestion oí the plaintiff’s lessors, was removed to the Superior Court of Baltimore City, in the year 1863. Shortly thereafter, on the 14th of September, 1863, a suggestion for removal was made by one of the defendants, supported by affidavit that he could not have a fair and impartial trial, and asking that the cause might be retpoved “to any Circuit Court authorized by the Acts of Assembly.” *An answer resisting this application and traversing the averment of the suggestion, was not filed until the 14th of October, 1865, and thereupon the court (Martin, J.) overruled the suggestion for removal. Held:</p> <p>That under Art. 4, sec. 9, of the Constitution of 1864, and the Act of 1865, ch. 187, then in force, the judgment of the court was right and .proper; but that under Art. 4, sec. 8, of the Constitution of 1867, and the Act of 1868, ch. 180, since enactedj and which have largely extended the right of removal, the judgment must be reversed and the party allowed to remove the cause, (a) pp. 265-267</p> <p>Where subsequent to the judgment of a court below, but before the decision by the appellate court, upon appeal therefrom, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. (b) p.. 266</p>

This was an action of trover, brought by the appellees for the conversion of four horses by the appellant.

This was an action of assumpsit, brought on the 9th of May, 1865, in the Court of Common Pleas of Baltimore City, under the Act of 1864, ch. 6, by the appellee to recover from the appellants $360, for nine days’ demurrage.

* Appeal from the Court of Common Pleas. This was an action of assumpsit brought by the appellant to recover from the appellee the sum of $200 bounty, under Ord. No. 8, of the Mayor and City Council of Baltimore, approved February 16th, 1864.

This was an attachment on warrant, issued out of the Superior Court of Baltimore City, on the 17th of April, 1865, at the instance of the appellants, against the lands, tenements, goods, chattels and credits of G. A. Mundorff, a non-resident of the State of Maryland, to recover the sum of $1,507.50, due and owing from the said Mundorff to the appellants, for *one hundred and fifty barrels of apples, at $10 per barrel, and for hauling the same at and for the sum of $7.50.

* Appeal from the Circuit Court of Baltimore City. The bill was filed in this case by the appellant against the appellees and others for the specific performance of an agreement to lease, and for the recovery of alleged arrearages of rent.

An allowance for a deficiency is made according to the difference between the represented and the actual quantity. By what rule can the practical meaning of “about,” and “vary a little,” be determined ? The words ‘ more or less,’ or other equivalent zuords, should be construed to qualify the representation of quantity in such a manner that, if made in good faith, neither party will be entitled to relief.” Hall v. Mayhew, 15 Md. 559, and cases cited.

This suit was instituted in the Circuit Court of Baltimore City by Thomas J. Flack & Sons and others, creditors of the firm of John B. Charron and others, at the time of its dissolution, to obtain an injunction against said firm, and the firms of Charron, Posey & Co., and Charron, Townsend & Co., and for a receiver to take charge of their affairs. The injunction was granted, and afterwards the defendants answered the bill, and evidence was taken.

Five bills of exception were taken by the plaintiff to the rulings of the court below. The first was to the admissibility *of evidence, and is sufficiently presented in the opinion of this court. The second, third and fourth were also to the admissibility of evidence, which, being deemed unimportant by the court, and no opinion expressed thereon, need not be set out.

Cross appeals from the Superior Court of Baltimore City. On the 9th of September, 1864, Mrs. Harper, the appellee in the first of these appeals, brought suit against the Rail Road Company to recover the value of a lost trunk and its contents, which had been delivered at Baltimore to the appellant, to be transported to New York as her baggage.

Appeal froríi the Circuit Court of Baltimore City. Proceedings .were instituted in the Circuit Court of Baltimore City, for the settlement of the estate of Leonard Jarvis, deceased, under which certain property of the testator was sold.

On the 29th of May, 1861, the appellee brought suit against the appellants and one Michael Walsh, upon a replevin bond, laying his damages at $500. The penalty in the bond was $300. The writ was returnable to the September term, 1861, and was returned, summoned, as to the appellants; non est, as to Walsh.

On the 7th of April, 1857, Joseph C. Wilson and R. W. Hyman, co-partners, trading as J. C. Wilson & Co., made a deed to Augustus M. Price, in trust for the benefit of their creditors, whom they classified in three schedules, A, B and C. The appellee was a preferred creditor of the first class in schedule A. Their deed was assailed by certain unpreferred creditors, but was sustained by this court. Price v. Deford, 18 Md. 489.

The appellant filed a petition in the Superior Court of Baltimore City, alleging that by the.

This was an action brought by the appellee against the appellant, to recover a sum of money, obtained from the former by the latter, in the sale of a vessel by fraudulent and deceitful representations. Two exceptions were taken by the defendant — the first is fully stated in the opinion of the court, and was abandoned on the appeal. The second exception is as follows.

This was an action brought by the appellee against the appellant, to recover the amount of a promissory note made *by the latter on the 23rd of March, 1861, and payable ninety days after date to the order of the former, at the Bank of Baltimore. The plaintiff parted with the note before it fell due, and, entering the Confederate army, did not return to the State of Maryland until after the war.

. This was an action of assumpsit, instituted by the appellant against the appellee.

This was an- action, brought by the State, for the use of the widow and children of Robert Price, deceased, to recover damages resulting from his death, alleged to have been caused by the appellant. It appeared from the evidence at the trial, that the deceased, on the night of the 26th of June, 1866, was run over at Cockeysville by the express train of the appellant and apparently killed.

. Appeal from the Superior Court of Baltimore City, sitting in Equity. The bill in this case was filed by John Tayloe, Jr., the only child of Imogene Tayloe, deceased, to procure the construction of a portion of the will of his great grand-father, James Mosher, deceased. The portion of the will in controversy, and the facts of the case, are sufficiently set forth in the opinion of the court.

<p>Negligence causing death ; damages. Court and jury. Prayer.</p> <p>Under the Code of Pub. Gen. Laws, persons and corporations are accountable for all damage occasioned by any neglect on their part, where the other party was not in fault and had not contributed to his own injury, (a) p. 464</p> <p>Where it is the especial duty of the jury to weigh, consider and determine whether or not the party was injured through his own negligence, it is error in the court to encroach upon their province, (aa) p. 464</p> <p>The plaintiff is not bound to prove gross carelessness on the part of the defendant or its agents; proof of the want of ordinary care is sufficient. (b) P- 4^4</p>

This was an action brought by the appellees against the appellant, to recover money due by the latter to the former. The nar. contained the usual money counts, and a special count for unliquidated damages, for the non-delivery of hay purchased by the appellees from the appellant.

In February, 1861, the appellant loaned the appellee, a thousand dollars, upon a pledge of ten shares of the stock of *the Powhatan Steamboat Company, and in April, following, the further sum of nine hundred and forty-five dollars, on a pledge of nine other shares of stock of the same company.

This action was brought by the appellees, on the 2nd of July, 1864, to recover from the appellant the sum of three thousand ^dollars in gold, deposited with the latter on the 30th of December, 1861. The facts of the case, together with the exceptions which were taken by the defendant in the court below, will be found presented with sufficient fullness and clearness in the opinion of the court.

The bill in this case was filed on the 4th of December, 1867, by the appellant, the wife of John F. Heck, in her own name, against the appellees.

This action was instituted in the court below by the appellees to recover commissions for services rendered by them as real estate brokers, in the sale of certain property of the appellant in Baltimore City.

<p>Appeal from the Circuit Court of Baltimore County.</p> <p>The Act of 1868, ch. 4x1, is constitutional. Constitution of 1851, Art. 7, sec. 8; Constitution of 1864, Art. 3, sec. 32; Constitution of 1867, Art. 3, sec. 33; Code of Pub. Gen. Laws, Art. 1, sec. xr; Smith, on State Construction, secs. 797, 802-3-5-8; Sedgwick on Stat. Con. 32, 33, 34; Pierce v. Kimball, 9 Greenl. 54; 5 Mass. 268.</p> <p>If any of the sections of the Act are inconsistent with the provisions of the Constitution, the whole Act is not thereby destroyed, but remains in force and effect as to its main design. Regents v. Williams, 9 G. & J. 389Davis v. State, 7 Md. 160.</p> <p>The refusal of the commissioners to obey the law within the time named in it for the holding of the election to carry out the provisions of the law, does not deprive the court of its power and jurisdiction to compel them to perform their duties. Tapping on Mandamus, 10, ri, 63-67-106-184-339-340; King v. Justices of Derbyshire, 4 East, 142; Milburn v. State, 1 Md. 17, 18; Young v. State, 7 G. & J. 264; U. S. v. Speake, 9 Cranch, 28; U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Vancandt, 11 Wheat. 184; People v. Supervisors of Chenango, 4 Seldon, 330; People v. Comm’s of Excise, 7 Abbott’s Pr. 36; People v. Allen, 6 Wend. 486.</p> <p>The Act of 1868, ch. 411, is unconstitutional. Constitution 1867, Art. 3, secs. 33, 40.</p> <p>The powers of the County Commissioners, under Art. 28 of the Code of Pub. Gen. Laws, are general and uniform; but the objects of those powers, and the manner of treating and effecting those objects, may be the subject of different legislation for the different counties; this is, the manner of enforcing those powers may be the subject of local and special laws; and, hence, while under .sec. 33, Art. 3, of the Constitution of 1867, these general powers of the County Commissioners cannot be disturbed, yet local legislation may regulate the objects of those powers. Comm’s Pub. Schools v. Comm’s of Alleghany Co. 20 Md. 450; Moses on Mandamus, Title, “ County Commissioners.”</p> <p>Again. Sec. T57, sub-sec. 2, ch. 411 of the Act of 1868, conflicts with sec. 40, Art. 3, of the Constitution of 1867. This sub-section two constitutes a material part of the law, and the court, in granting the mandamus, must suppose that all the essential provisions of the law of which it compels compliance, will be carried ont. Hence, as this sub-section two is an essential part of the whole law, and is unconstitutional, the court will not grant a mandamus to carry into effect a law, where, if granted, it would be nugatory. Tapping on Mandamus, 67; Comm’s Pub. Schools v. Comm’s Alleghany Co. 20 Md. 450; Booze v. Humbird, 27 Md. 1.</p> <p>The powers of the appellees, under ch. 411, Act of 1868, is a specially delegated power, and must be strictly construed; and the time for putting into effect the law having passed, the appellees have no power to order an election as therein prescribed. . Ellicott v. Levy Court, 1 H. & J. 360; Kerr v. State, 3 H. & J. 564; State v. Merryman, 7 H. & J. 564; Comm’s of Pub. Schools v. Comm’s of Alleghany Co. 20 Md. 450.</p>

<p>Corporations ; powers ; acts ultra vires ; not binding ; parties in pari delicto.</p> <p>The Maryland Hospital agreed with F., in consideration of $1,200, to support his sister, then a lunatic patient in the institution, for the remainder of her life. The money was paid. F. also fully paid for the support of his sister to the ist of July, 1863, and the sum paid in commutation, relieved him from that date from any further charge in the future for her support. The lunatic died on the 12th of August, 1864. Subsequently, F. sued the hospital to recover back the sum he had paid under the contract, *less the necessary expenses incurred in the support of his sister, from the ist of July, 1863, to the 12th of August, 1864. Held:</p> <p>That the hospital had no power under its charter to make this contract with F.; it was ultra vires, not binding on the corporation, and could not have been enforced in favor of F. (a) p. 531</p> <p>That the contract was neither malum in se nor mahtm prohibitum, and the parties to it were not in pari delicto, and F. was entitled to recover back the sum paid by him, less the amount properly chargeable as a fair and reasonable allowance for the care and keeping of his sister during the period which intervened between the 30th of- June, 1863, and the 12th of August, 1864, the date of her death. pp. 531-532</p> <p>If a party makes a contract with a corporation, which is simply beyond the powers of the latter, he may recover money paid thereon, whether the contract be executed or executory. (b) p. 532</p> <p>If a contract be illegal in itself, or is in violation of some statute or against public morals, courts of justice will not aid to enforce it. Such a contract, while executory, may sometimes.be disaffirmed, and money paid, recovered. But after it has been executed, if the parties stand strictly in pari delido, it may not be rescinded, and the parties are left without remedy, (c) p. 531</p> <p>Corporations are limited to the exercise of such powers as are expressly granted by law, and such as are necessary and usual in the course of their business, to enable them to attain the purposes of their creation, (d) p. 530</p>

This was an attachment issued on the 12th of October, 1866, on a judgment recovered by the appellant against David Moore, and laid in the hands of James M ason Campbell, as Administrator of Margaret Moore, deceased. The garnishee appeared, and without pleading moved to quash the attachment for the following reasons: 1st. Because the attachment was. laid in the hands of an administrator. 2nd.

In this case a petition was filed by the appellant on the 10th of February, 1866, in the Orphans’ Court of Baltimore City.

This was an action of ejectment, brought by Ernest and Victor H. Buschman, co-lessees with Otto Ducker, of certain real estate in the City of Baltimore, under a lease from Samuel Ready, to recover their interest in the said real estate from the appellees, to whom the same property had been subsequently let by the said Ready. The two leases were offered in evi*dence.

There was and could have been no merger of the York and Cumberland Rail Road into the consolidation, so as to affect the rights of the appellants’ testator as bondholder. The Acts of the Maryland and Pennsylvania Legislatures, authorizing the consolidation, carefully guard against such a result.

The appellant having found it necessary and having determined to raise the sum of two million five hundred thousand dollars, by the issue of its bonds to that amount, in sums of one thousand dollars each, to the number of twenty-two hundred, and of five hundred dollars each, to the number of six hundred, did on the 20th of December, 1855, by deed of mortgage convey to the appellees, Keighler, Pleasants and Kennedy, and to William E. Mayhew, since deceased, all of its…

The bill of complaint in this cause was filed by the appellee on the 13th of June, 1854.

The bill in this case was filed on the 2nd of October, 1865, by the appellee. Henry G. Willis, being the lessee'for ninety-mine years, renewable forever, of a lot of ground at the corner of Walsh and Greenwillow streets, in the City of Baltimore, assigned the same to Richard F. Gardner. On the 14th of September, 1855, Willis executed a mortgage of his interest to Charles Myers, to secure the sum of $450.