Volume 30 — Maryland Reports

This was an action instituted by the appellee against the appellants, charging them as co-partners, and seeking the recovery of certain promissory notes, filed with the narr. The narr. contained the common counts, and special counts on the notes, and the defendants pleaded in the usual manner. The controversy was as to the liability of Joseph A. Thomas as a co-partner with his co-defendant, E. C. Thomas, in the business of E. C. Thomas and Sons. The plaintiff proved by Benj.

The bill in this case was filed on the 18th day of December, in the year 1866, by the appellant, asking for an injunction to restrain the sale of his individual real estate under a writ of fieri facias, which had been issued against him on certain judgments, rendered against him as executor of his testator, William Z. Beall.

The facts in this case are stated with great fulness and clearness in the opinion of the Court, and need not be repeated. Three prayers were presented by the plaintiff and six by the defendant. The Court (Martin, J.) granted the plaintiff’s first prayer with a qualification, and rejected its second and third, as also the prayers of the defendant.

The bill in this case filed on the 1st of February, 1867, by the trustees of Goshen meeting-house and others, members of the Methodist Episcopal Church, prayed an injunction against the appellants to restrain them, their agents and servants from using, occupying or in any manner interfering with the said meeting-house, except in a peaceable and orderly attendance at public worship, under the direction and guidance of the appellees Arnold and Hobbs, or of the duly authorized…

The cause was argued before Babtol, C. J., NelsoN, Miller and Alvey, J. 1 The facts of the case show actual notice to the appellee, because notice to Wain wright, who had actual knowledge of •the whole transaction, was notice to his principal. Wainwright was the agent to make the contracts and payments, and was therefore the agent to receive notice. Story on Agency, sec. 140; Boyd, et al. vs. Ches. & O. Can. Co., 17 Jfd.,'195. .

This was an action under the statute, brought by the equitable plaintiff, to recover damages from the defendant for causing the death of his daughter — a child aged about five years. Held: so far as third persons are concerned, to the exercise of ordinary care and diligence, without reference to the age or sex of such third persons. Lygo vs. Neiobold, 9 Exchequer, 302; Wright vs. Malden and Melrose R. R. Co., 4 Allen, 283; Holly vs. Boston Oas Light Co., 8 Gray, 123.

Tbe bill in this case was filed on the 27th of May, 1864, by the children of Mrs. Mary Ann Crook, against the heirs of the late Judge… Held: so that the said mortgage instead of being a pledge of the separate estate of Mrs. Crook, as security for a debt or contract of her husband, as by the bill of complaint would appear, was in fact given for the separate benefit of Mrs. Crook herself, who was joint obligee in the bond of conveyance; that the said Glenn, as showii by the…

Appeals from the Court of Common Pleas. The cause was argued before Bartol, C. J., Nelson, Stewart and Miller, J. The pleas of the defendant were properly stricken out as they had not been sworn to. Act of 1864, oh. 6, see. 7. The omission of the clerk to enter on the docket that the pleas were stricken out, and judgment by default entered for want of affidavit to the same was a clerical misprision, which the Court had power to rectify and ought to have amended.

The bill in this case was filed on the 25th of April, 1865, by the appellee against the appellants, and stated that in September, 1859, the appellee purchased of Reuben ~W. Bunnell, since deceased, by parol agreement, a house and lot of ground in Upper Marlborough, for $900, to be paid from time to time as convenient to the appellee, and on its payment the property was to be conveyed to him in fee, by clear and undisputed title, and that at the time of the making of the…

The Policy of Insurance on which this suit was brought, was issued on the 16th of June, 1866, by reason of a verbal application made by Davison, one of the appellees, to the appellant. The fire took place on the 27th of January, 1867. A similar insurance was effected in the Maryland Insurance Company by the appellant, for its own convenience, and without the request of the appellees.

The appellants were indicted at October Term, 1866, of Anne Arundel County Court, for encroaching upon, stopping up and obstructing, on the 30th of March previous, South street, alleged to be a public highway in the city of Annapolis.

Appeal, from the Circuit Court of Baltimore City. , The bill of complaint in this case, filed by the appellees on the 8th of March, 1866, alleged that Fielder Israel, late of the city of Baltimore, being seized, in fee, of a lot of ground and premises on the west side of Greene street, in said city, devised the same to his children, (all of whom were parties to the ease,) as tenants in eommon; that the appellant was in possession of said lot of' ground and premises; that he…

On the 15th of June, 1868, the appellant applied for the benefit of the Insolvent Laws. The application was in the usual form and G. H. Williams was appointed trustee, and gave bond, which was approved.

■ Appeal from tbe Circuit Court of Baltimore City. The cause was argued before Bartol, C. J., NelsoN, Stewart and Miller, J. The bill was met by a plea in bar; that stopped all proceedings. Nothing further could be’done under the rules of pleading and of the Court, until that plea was disposed of; and the only thing the Court could properly do was to allow or to overrule the plea; nothing more. If it allowéd the plea, this suit was barred.

<p>Purchaser at a Tax sale— Caveat Empior.</p> <p>A purchaser of a house and lot in the city of Baltimore, sold hy the city collector for non-payment of an assessment levied thereon, for opening the street upon -which it was located, paid the purchase money, received from the collector a deed for the property, and entered into possession; subsequently he was ejected hy the owners, upon the ground that the collector had omitted to give the notice, as required hy ordinance, of such sales, and was obliged to pay costs and mesne profits. He thereupon brought an action to recover damages from the city collector. Held:</p> <p>That the purchaser was hound to inquire whether the city collector, in selling the property, acted in conformity with the law authorizing the sale; and coming strictly and rigidly within the rule of “caveat emptor,” he is not entitled to recover.</p>

On the 14th of September, 1866, an account was opened in the Chesapeake Bank in the name of Mrs. E. A. E. Mears, Treasurer, and various sums were deposited from day to day until the 22d of December, when that account was closed, and a new one opened in the name of the “Southern Orphan Relief Fund,” and beneath this entry on the books of the bank there were also written the ■ words “ Mrs. E. A. F. Mears, Treasurer.” On the 17th January, 1867, the amount on deposit to the…

Appeal form the Circuit Court of Baltimore City. Held: that the agreement bound the l'emainderman; and the reason given by Loud Redesdale was, that the power was given both for the benefit of the tenant for life and of all persons claiming after him; it was so held expressly upon the ground that it was in furtherance of the object of the power and for the benefit of the estate; that is…

The bill of complaint in this case was filed by the appellant on the 31st day of May, 1867, against the appellee. Joseph S, Donovan was the largest stockholder of the ap-pellee, and had so been for a long time before his death, which took place some six or seven years before the filing of the bill in this case. He resided, till his death, in the city of Baltimore, where his widow, the appellant^ continued to reside till August, 1861.

Whits of Ebkgr to tbe Circuit Court for Baltimore County. Tbe plaintiff in error was indicted for the murder of Henry B. Grove, in tbe Criminal Court of Baltimore, at the May Term of 1866. Tbe indictment contained two counts: both charging tbe offence of murder by shooting with a pistol.

This was an action under Art. 65, entitled “Negligence,” of the Code of Public General Laws, brought in the Superior Court of Baltimore City against the appellant and Edwin Robinson, by and in the name of the State, for the use of James, Charles M., Edward C., Richard F. and Martin L. Keyser, infant children of Mrs. Ellen Keyser, deceased, who sued by their next friend, and also for the use of her daughter Elizabeth C. Fink, an adult.

This appeal was taken from the decision of the Circuit Court, sitting as a Court of Equity, on two petitions; the first filed by the appellee on September 1st, 1866, in a cause then depending in said Court, (wherein George E. Gephart and others were complainants, and John C. Stoven and others defendants,) against George A. Pearre, Charles B. Thruston and James M. Schley, (co-trustees with the appellant,) and the appellant, stating that said trustees had sold the property…

This was an action brought against the appellees, by the appellant to recover for damages done to a certain lot of ground belonging to him, by reason of the grading of North avenue.

Appeal .from the Superior Court of Baltimore City. This action was brought by the appellee to recover damages for an injury done him, through the alleged negligence of an agent of the appellant.

Henry J. McNamee applied for the benefit of the Insolvent Laws of Maryland, on the 21st May, 1859, and Daniel Wineow was appointed trustee for the benefit of his creditors, and the appellants were the sureties on the bond of the trustee.

On the 1st of March, 1841, an action of debt was instituted by the appellant, then Eleanor Chiswell, as administratrix of John A. Chiswell,- against William Brewer, the testator of the appellee. A narr. was filed on the 3d of March, 1842.

This was an action for work, labor and materials, brought by the appellees against the appellant.

Appeals from the Circuit Court for Allegany County, in Equity. A creditors’ bill was filed by George Blocher, for himself and ether creditors of Henry Wineow, on the 28th of April, 1855, against John Wineow and others, the administrators of Henry Wineow, deceased, and his heirs-at-law.

The bill in this case was filed on the 3d day of February, 1863, by the appellee.

This action was brought by the appellant against the ap-pellee upon a promissory note, the signature of which was admitted to be the genuine signature of the appellee, and which note was as follows: “ |258.6.5.

This was an action of ejectment brought by the appellant to recover certain land which he had purchased from the Trustee in insolvency of- Henry J. McNamee. Notice was sent to Henry J. McNamee, as the tenant in possession, who came in and appeared under leave of the Court.

The bill in this case was filed by the appellee for an injunction to restrain proceedings at law, and for the specific performance of a contract.

This was an action of assumpsit brought by the appellee to recover from the appellant certain money alleged to have been collected by him, as constable, on claims placed in his hands by one Christian… Held: and if they find that said claims were assigned to the plaintiff. To this ruling and instruction the defendant excepted, and the verdict and judgment being against him, he appealed. The cause was argued before Bautol, C. J., Stewart, Brest, Miller, Alvey and RobiÑsoN, J.

Appeal form the Circuit Court for Washington County. This was an action of debt brought by the appellee, as guardian of her children, to recover from the appellant rent due by him for a certain grist mill, with a mill-dam and mill-race apurtenant thereto, and used for the purpose of operating said mill, in Washington county. William.

This was an action of assumpsit brought by the appellant to recover from the appellee, as executor of Wm. F. Leitch, for goods bargained and sold, and money lent to the deceased, 'and for money found to be due upon an account stated in the life time of tbe deceased. The defendant pleaded that the deceased never was indebted and never promised as alleged, payment, limitations and set-off.

On the 30th of October, 1865, Alexander T. Stewart, Francis Warden and George Fox, the appellants, plaintiffs below, sued out of the Superior Court of Baltimore city, against the property of David Long, an attachment on original process under the Act of 1864, ch. 306. The plaintiffs were non-residents.

This was an action of Replevin instituted by the appellant, to recover from the possession of the appellee, a lot of iron rails, frogs, spikes and bolts, claimed to be the property of the former, in- the possession of, or' being upon the property of the latter. The writ was issued October 27th, 1865, and the property replevied and delivered to the appellant on the 31st day of the same month.

for Washington County. The bill of complaint in this case was filed by the appellants, George Wolf and Mary C. Wolf, his wife, against the heirs of John Corby and William Corby, and alleged in substance, that the complainant, George Wolf, became entitled by inheritance to certain lands in Washington county, and that about the year 1842, the said George Wolf, being at that time largely indebted to sundry persons, made an arrange-mcnfc with said John and William Corby, (who…

County. This was an action of assumpsit brought on the 30th day of August, 1862, but owing to the decision of this Court on a former appeal in the same cause, (28 Md., 67,) it was, by consent, deemed and taken to have commenced on the 28th of August, 1863, by the appellants, citizens of Pennsylvania, against the appellee and James Murray, trading as Murray & Hazlehurst, on the acceptances of said firm in favor of the appellants, and upon an open account.

In 1857, John S. Tyson and Rachel, his wife, sold and conveyed to Isaac Simmons several contiguous parcels of land, the maiden property of Mrs. Tyson, and to secure the residue of the purchase, money due thereon, $8,728.75, Simmons and wife, on the 2d of March, 1857, executed a mortgage of the same property to Mrs. Tyson, and delivered to her three promissory notes, payable to her order, and bearing even date with the morgage, one for $2,300, one for $3,214.37 and the other…

The appellant in this case was sued by the appellee on a policy of insurance effected upon the steamer Richmond. The facts are sufficiently stated in the opinion of the Court. The cause was argued before Babtol, C. J., Stewaet, Grasok, Miller and RobiNSON, J.

This action was instituted by the appellant, to recover certain money which he claimed to be due to him by the appellee.

This was an action of assumpsit instituted by the appellants against the appellee. The narr. contained only the common counts.

This was a case of attachment, sued out by the appellee against the appellants, .as non-residents, to recover the sum of $840, due to him from them for demurrage on a canal boat.

This action was brought by the appellee, in his individual capacity and as trustee for his wife, to recover from the appellant, as executor of Cornelius McLean, deceased, the sum of $1,500, with interest from the 10th July, 1860, alleged to have been placed in the hands of said McLean by Mrs. Higgins, wife of the appellee, to be invested by him in real estate for her use.

The facts of this ease are sufficiently stated in the opinion of the Court. The cause were argued before Bartol, C. J., Stewart, Brest, Grasos, Alvey and EobiNSON, J.

This was an action of ejectment, brought on the 12th of February, 1863, by the appellee against the appellants, to recover a certain tract or parcel of land, called “Slack Water,” lying in Washington county, and containing eighty-five and one-fourth acres, more or less, with the appurtenances.

- Thomas Postles sold certain land in Caroline County, to Joseph McGonigal of said county. Appended to the deed was a receipt in full for the purchase money. On the same day McGonigal executed and delivered to Thomas Postles his bond obligatory, with S. I). McGonigal, of the State of Delaware, as surety, conditioned for the payment of the sum of $2,300, with interest, and containing a power to confess judgment thereon, in any Court of record in the State of Delaware.

<p>Act of 1841, ch. 64— When Judgments of Justices of the Peace, in Washington county, become Liens on the lands of the defendant</p> <p>Under the Act of 1841, ch. 64, judgments of a justice of the peace in Washington county, so soon as copies have "been recorded in the clerk’s office, become liens on the lands of the defendant, and may be enforced by executions issued by the justice within three years from their date. And they may he afterwards revived hy scire Jadas, and executions may he issued.</p> <p>If the plaintiff neglect these remedies at law, he will not he permitted to . go into equity to enforce his liens.</p>

<p>Construction of Art. 27, sec. 1, of the Code of Public Gteneral Laws, providing for the payment of the Costs and Expenses of Trials in Removed cases.</p> <p>Under Article 27, section 1, of the Code of Public General Laws, all costs and expenses incurred during the time occupied in the trial of a removed case, either civil or criminal, or occasioned by or resulting from such trial, which the county is by law required to pay, shall be paid by the county where the cause originated, and such expenses include, the per diem of the jurors in attendance upon the Court during the trial,whether specially impanelled to try the case or not, and also theper diem for the same period of the sheriff, bailiffs, or other subordinate officials essential to the organization of the Court, and necessary to the transaction of its business.</p>

The appeal in this case is from a decree making perpetual an injunction restraining the appellant from taking possession of certain land of the appellee in Frederick city, condemned by the city for certain public uses. The nature of the case is fully stated in the opinion of the Court. The cause was argued before Babtol, C. J., Stewart, GeasoN, Miller and Alvey, J. Where there is full, adequate and complete remedy at law, equity will not interfere.

This was an action of ejectment brought on the 16th of August, 1867, by the appellants to recover from the appel-lees, certain real estate lying in Baltimore county. The property in controversy formerly belonged to Thomas Boone, who, by his last will and testament, dated the 6th of December, 1774, devised it to his son Richard; the testator died somewhere between the date of his will and the 10th of January, 1775.

This was action of assault and battery brought by Laura V. Tucker, an infant, against the appellant. The defendant having been summoned, and his appearance entered by the Court, under sec. 85, Art. 75, of the Code of Public General Laws, the plaintiff, by her attorney, moved to prosecute said suit by Edward F. Tucker, as her prochein ami.

<p>Notarial protest — Due demand — Due notice■ — Province of the Court and • Jury — Due diligence■ in finding the maker of a Note — Presentment for payment.</p> <p>A notarial protest is -prima fade evidence of its contents, and nothing more.</p> <p>To enable the holder of a promissory note to recover against the endorser, it is indispensable to show due demand upon the maker, and due notice to the endorser of its non-payment.</p> <p>"Where there is no dispute about the facts, what is due diligence, is a question of law for the Court to determine; and where the facts are submitted to the jury, to be ascertained by their verdict, they must be sufficient to constitute due diligence. If the proof be insufficient in law, it is error to refer the question to the jury.</p> <p>"Where the maker of a promissory note resided in Baltimore, inquiry for him by the ndtary at the Post Office, Exchange and Court House was not alone sufficient; efforts should have been made to learn if he had a residence in the city — the City Directory might have been examined, and demand should have been made upon him or left at his place of abode.</p> <p>The holder of a promissory note must not allow himself to remain in a state of passive and contented ignorance, trusting to the industry and . vigilance of the notary, but he must use reasonable diligence to discover the residence of the indorser.</p>

This was an action of ejectment brought by John A. Smith, the appellant, against the heirs of Thomas Deveemon. The plaintiff claimed title under a patent issued March 1st, 1866, upon a special warrant of escheat, dated October 24th, 1862. The warrant was returned into the Land Office on the 19th of October, 1863, and on the 23d of the same month it was examined and passed, and the composition money paid.

Attachment on judgment. Thomas Ward, to whose use a judgment, obtained by John O, Price, against Paul Jones, had been entered, issued an attachment thereon, which was laid in the hands of the appellant. The appellant appeared and pleaded nulla bona. Two exceptions were taken to the rulings of the Court of Common Pleas, by the garnishee, which will be found sufficiently stated in the opinion of this Court.

<p>Motion to dismiss the Appeal — Objection to admissibility of a Deed in evidence for want of a Stamp, to ' be taken in the Court below— Usury — Right of the Assignee of a Mortgagor to avail himself of Usury in the original Contract.</p> <p>Where it appears that the failure to send up the record within the time prescribed by law, was the fault of the clerk of the Court below, a motion to dismiss the appeal must be overruled.</p> <p>The Act of Congress of 1803, ch. 4, provides that certain instruments not duly stamped, shall not be received or used in evidence. An objection to the admissibility of a deed in evidence under this provision, ought to be made in the Court helow, and cannot be made for the first time in the Court of Appeals. ■</p> <p>Where a person lends a sum of money, the re-payment óf which with interest, at the rate of six per cent, is secured by a mortgage, and at the time of the .loan and in consideration of it, a portion of the money in excess of the legal rate of interest is returned to him by the borrower, the transaction is usurious.</p> <p>In the case of an usurious loan secured by mortgage, the assignee of the equity of redemption, may claim an abatement for the illegal interest.</p>

The cause was argued before Babtol, C. J., Stewaet, Beent, Gbason, Millee, Alyey and Robinson, J. The Bill in this case was not a proceeding, strictly in rem ; it did not describe any particular property • there was no levy, •schedule, appraisement or return of it. It only attacked the land through the parties.

This was an action of trover brought ■ by Bachel Williams, the appellant’s intestate, on the 15th of October, 1860, in the Circuit Court for Anne Arundel county, against John Johnson, the intestate of the appellee, whereby she sought to recover the value of a certain negro man, her slave.

<p>Equity Jurisdiction — Equity Practice.</p> <p>Independently of the provisions of the Code, a Court of Equity, in the exercise of its general jurisdiction, has power to superintend the administration of assets, and decree distribution amongst legatees and distribu-tees, and to compel executors and administrators to discharge faithfully their trust.</p> <p>"Where the allegations of a hill of complaint are sufficient to authorize a Court of Equity to grant relief, but the complainant has failed to make proper parties, the Court should not dismiss the bill, but allow it -to be amended, and further proceedings to be had, that the cause may bo determined upon its merits.</p>

Appeals from the Circuit Court for Howard County. In July, 1861, the appellant, hearing of the illness of his wife, at her father’s, in Winchester, Virginia, left his home in Maryland for the purpose of seeing her, intending to return in a few days. Owing to the position of the Federal and Confederate forces about Winchester, the appellant, for several weeks, was unable to return home. About the 1st of September, 1861, upon information received from his brother, Wm. H..

Apepal from the Circuit Court for Howard County, sitting in Equity. The bill in this case was filed by the appellee against the appellant and others, on the 5th of December, 1863, for the foreclosure of a mortgage executed by the appellant, who at that time was residing in that part of the State of Virginia with whieh the United States was at war.

This action was instituted in the Circuit Court for Baltimore county, on the 25th of November, 1863, and was removed to the Superior Court of Baltimore city, May 25th, 1864.

The cause was argued before Baiitol, C. J., Stewart, GrasoN and Alvey, J. The facts are detailed in the opinion of the Court. The order of the 22d of March, 1869, is illegal and void, and the Court erred in passing it, because the Orphans’ Court bad no power to pass it. It was the exercise of Common Law or equity powers, which do not belong to the Orphans’ Court. 1798, eh. 101, sub-eh. 15, see. 20; Code of Pub.

Appeals from the Circuit Court for Prince George’s County. These were writs of scire facias issued on the 16th of July, 1863, returnable to the November Term, 1863, of the Circuit Court for Prince George’s county, and were returned to that term by the sheriff, endorsed “ scire feci, William W. Hall; ” Hall was one of the defendants in each case.

This., suit was instituted by the appellees in the Circuit Court for Prince George’s-county, to the April Term, 1862, against the appellant, on a note drawn by him in favor of-, for §610.89, and endorsed by Hall & Anderson to tlic appellees. The appellees claimed as the holders of the note.

This appeal was taken from an order of the Court below, dated the 19th March, 1869, ratifying a sale of mortgaged real estate, made by the appellee, under the provisions of the 64th Article of the Code. On the 7th of April, 1864, Benjamin Berry executed a mortgage of certain real estate in Prince George’s county, to the appellee, to secure to him the payment in five years, of the sum of four thousand dollars, loaned by him to the said Berry, and interest thereon half-yearly.

IV bit of Error to the Criminal Court of Baltimore City. The plaintiff in error was indicted at the January Term, 1867, of tlie Criminal Court of Baltimore city, for the murder of William H. Peregoy; he was tried at the following May Term, and the jury rendered a verdict of “not guilty of the felony and murder charged, but guilty of manslaughter,” and the Court thereupon sentenced him to “serve and labor in the Penitentiary for the period of ten years.” A writ of. error was…

William Bladen, the appellant, on the 17th of September, 1864, purchased of Charles A. Wells and M. A. Wells, his wife, a tract of land.

This was an attachment .on warrant, instituted by the appellants against the appellees, on the 4th of April, 1868. The appellees, Henry L. Solomonsky, Moses E. Myers, and Joseph L. Solomonsky, co-partners, constituting the firm of Solomonsky & Co., of Norfolk, were indebted to the appellants in the sum of $67.’75.