Volume 31 — Maryland Reports

<p>Appeal from the Circuit Court for Prince George’s County.</p> <p>At the April Term, 1868, of the Circuit Court for Prince George’s County, this action was pending on the trial docket between-the appellants as plaintiffs, and the appellees as defendants. The cause was not tried at that term, but was regularly continued. The clerk of the Court issued a summons, directed to the Sheriff of Baltimore city, commanding him to summon William B. Gambrill, to testify for the plaintiffs in this action, returnable to the June Term,, 1868, of said Court, the said June Term, 1868, being an intermediate non-jury term, provided for by the new Constitution.</p> <p>It does not appear, nor was it alleged, that the said summons was issued at the instance of, or by the order of the plaintiffs or their attorney. The witness appeared in obedience to the summons, and the plaintiffs moved the Court to quash the same for the following reasons:</p> <p>1st. Because by Article 4, section 21 of the Constitution of the State, no jurors can be summoned for the trial <of cases at any intermediate term.</p> <p>2d. Because the Court have no power under said Article •.and section of the Constitution, to pass any rule requiring the issuing of summons for witnesses to such term.</p> <p>3d. Because the following rules of said Court, as amended at the April Term, 1868, of said Court, do not authoñze the issuing of any such summons for witnesses.</p> <p>First Rule. There shall be two terms of this Court as at .present, to which jurors shall be summoned,, to be held on the first Monday in April, and the first Monday in October in each year.</p> <p>Second Rule. There shall be as required by the Constitution, two intermediate terms, to which jurors shall not be summoned, to be held on the third Monday in June, and the third Monday in January in each year.</p> <p>Third Rule. Suits may be brought, and process issued to the said non-jury terms as fully in every respect as to the regular jury terms.</p> <p>Fourth Rule. Suits brought to one term, either jury or non-jury, shall stand for trial at the succeeding jury or non-jury term respectively.</p> <p>4th. Because the Court on the return of summoned to such a summons, has no right, under the Constitution or rules aforesaid, to compel the attendance of said witness by attachment or otherwise.</p> <p>5th. Because the issuing .of said summons, and requiring witnesses to attend at an intermediate term, when no jury trial can be had, will inflict great inconvenience and expense to witnesses so summoned.</p> <p>The Court, without argument, overruled the said reasons and motion, and refused to quash the summons.</p> <p>From the judgment of the Court overruling this motion, the plaintiffs below appealed.</p> <p>1st. The issuing of the summons by the clerk, was an extra official act, and the summons itself was therefore void.</p> <p>2d. The third and fourth rules of the Court below, do not warrant or authorize the issuing of summonses for witnesses to attend at non-jury terms.</p> <p>3d. If those rules are capable of such a construction, they are repugnant to the true intent of Article 4, section 21, of the Constitution of the State, and are themselves void.</p> <p>4th. An appeal properly lies in this cause from the refusal to quash the summons per se, and the appellants were not bound to wait until the rendition of the judgment on the final trial of the cause.</p> <p>On the fourth point he cited Ringgold’s Case, 1 Bland, 5 ; Thompson vs. Mo Keen, 6 IT. f J., 302 ; Code of Public General Laws, Art. 5, sec. 3 ; Queen vs. The State, 5 II. f J., 232 ;■ Hall vs. The State, 12 G. f J., 329; Bruce vs. Cook, 6 G. $ J., 345 ; Negroes, Bell, and Others vs. Jones, 10 Md., 322 ; Baltimore and Hgvre de Grace Turnpike Co. vs. The Northern Central R. R. Co., 15 Md., 193; Swann vs. Mayor and City Council of Cumberland, 8 Gill, 152; Waters vs. Duvall, 6 G. f J., 76 ; Boyle vs. Robinson, 7 IT. # J200.</p>

<p>Promissory Note — Notarial Protest — Insufficient Notice to an Endorser.</p> <p>A notarial protest is prima facie evidence of the truth of its statements, and where the protest is exclusively relied upon to prove the necessary facts to fix liability upon the party to be affected, it must contain sufficient averments to show that everything requisite has been done on the part of the holder of the note, or his agent, to authorize the demand upon the endorser.</p> <p>In an action against an endorser on a promissory note, payable at the People’s Bank of Baltimore, the notarial protest was the only evidence offered to establish due demand of payment of the note, its dishonor by the maker and legal notice thereof to the defendant as endorser. The protest failed to show that presentment of the note was made at the bank for payment at its maturity, or that it was left at the bank for payment. The protest merely stated that the note was presented, without saying where it was presented. Held :</p> <p>That the evidence was insufficient to make the endorser responsible for the payment of the note.</p>

The bill in this case was filed on the 8th of March, 1869, by the appellant.

<p>Orphans’ Court — Liability of Sureties in a Guardian’s Bond — Construction of the Code, Art. 93, sec. 10— Guardian and, Ward — Waiver of error in an Order directing Guardian to pay over Money in his hands, by his antecedent confession of his Liability, to Pay— llight of Appeal by Sureties in a Guardians Bond.</p> <p>The sureties in a guardian’s bond are not responsible for any property their principal may have received as guardian without competent legal authority, and to which the ward had no legal title or claim during his minority.</p> <p>A testator bequeathed the sum of $2,000 to an infant, to be paid to him in case he attained the age of twenty-one years. Held :</p> <p>1st. That under the 10th section of the 93d Article of the Code of Public General Laws it was competent for the Orphans’ Court to appoint a guardian for the infant, require the guardian to give bond, and then direct the administrator to pay the money over to the guardian, to be by him kept and preserved upon the responsibility of his bond, and paid to the ward, if he attains majority, and if not, then to the parties entitled thereto, under the will, or by law.</p> <p>2d. That the guardian so appointed is as much an officer of the Court as the administrator, and equally subject to its arrlhOrity, and the funds in his hands are at all times equally subject to the order and control of the Court as if they had been suffered to remain in the hands of the administrator.</p> <p>3d. An order requiring the administrator to pay over the money to the guardian, must eertai2ily protect the administrator, the Court having undoubted jurisdiction to direct what he should do with the money.</p> <p>4th. That as the guardian lawfully receives the money under such order, it follows, the sureties on his bond are responsible for the faithful discharge of his duty in keeping it.</p> <p>5th. That such order is not an adjudication construing the will and determining the legatee was entitled to receive the legacy before he attained the age of twenty-one.</p> <p>The guardianship of a minor having been revoked by the Orphans’ Court, and a new guardian appointed, the latter filed his petition to compel the late guardian to account and to pass over to him the money and property in his hands as late guardian. The latter answered this petition, stating, among other things, that he had become a bankrupt, and was entirely without means and utterly unable to bring into Court or pay over to the new guardian,” any portion of the money received by him as guardian. And on the same day he filed an account in the Orphans’-Court, showing a balance due by him to the ward. The Orphans’ Court ordered the said account to be proved, and passed an order requiring the late guardian to pass over to the new guardian, all moneys, &c., which might have come to his hands as guardian, and particularly the balance shown by his account, and in default thereof, that the new guardian put in suit the bond of said late guardian. On appeal from this order by the sureties in the late guardian’s bond. Held :</p> <p>1st. That an error in the order in not fixing a reasonable time for the former guardian to pay over the money to the new guardian, was waived by the antecedent confession of the guardian that he was insolvent and unable to pay the money.</p> <p>2d. That the sureties had an interest in preventing the passage of the order, and in virtue of such interest were entitled to appeal.</p>

This was an action on a guardian’s bond, instituted in tbe name of the State by Randolph J. Bouldin, guardian of Robert Siggs, sometimes called John Watchman, a minor, against the appellees, the former of whom had previously been the guardian of said minor, and as such had, with the other appellees as his sureties, executed the bond sued on.

First Exception: The plaintiff proved by the cashier of the garnishee that an account was kept in the bank in the name of the kEtna Life Insurance Company by W. B. Lounsbury, who made the deposits and drew the checks, and then presented a copy of said account to the witness (objection thereto as a copy being waived) and offered to prove that the same was a copy of the account referred to, and accompanied said offer with a tender to show that a portion of the moneys to the…

Tbis was an action of Trover, instituted by tbe appellee, to recover from tbe appellant a bond or single bill under seal belonging to the appellee, and lent by him to J. W. George, who borrowed it at tbe appellant’s suggestion for the specific purpose of enabling George to raise money upon it, or get credit upon it in Baltimore, so that he might go into business^ and form a partnership with T. W. Ashby.

Tbe appeal in this case was taken from a judgment for ' $700, rendered by, Baltimore City Court, on tbe 9tb of ' November, 1868, against tbe appellant at tbe suit of tbe appellee. Tbe suit was brought on tbe 2d of April, 1868, by the appellee,' to recover compensation, at the rate of $100 per month, for services which he alleged he had rendered as secretary to the appellant, from the 15th of April, 1867, to the 31st of January, 1868.

The suit in this case was instituted on the 10th of March, 1864, by the appellee against David Young, the intestate of the appellants, to recover on a draft, dated 19th August, 1860, drawn by him on J. Townshend & Co., for $897.44, payable four months after date, to the order of James S. Morsell, Jr., and by him endorsed to the appellee.

The bill in this case filed by the appellant alleged that on the 15th day of June, 1865, Benjamin Silver, James Silver, and Silas B. Silver, executors of Susan Pannell, of Harford county, deceased, sold by public auction to Kimberly Brothers, for the sum of $16,000, certain real estate; and that the said Kimberly Brothers “ agreed to relinquish their rights as purchasers under said sale in favor of Levin J. Drummond, whereupon Cornelius Green and the said Drummond agreed to…

This was an action brought by the appellant, as assignee, for the benefit of the creditors of George R. McNabb, against the appellees, Armstrong, Cator & Co., for money claimed to have been received by them to the use of the appellant, under the following circumstances: On the 27th December, 1866, George R. McNabb, of Columbia, South Carolina, being heavily indebted to a number of Baltimore merchants, whom he was unable to pay, made a deed of trust to the appellant for the…

This appeal was taken by the defendants below, from a judgment rendered in favor of the appellee, in an action brought by him to recover the price of a horse, sold by him to the defendants. -The facts of the case are fully stated in the opinion of the Court. The prayer of the appellee excluded from the consideration of the jury the question of mistake on the part of the appellants in making the offer, which is the basis of the action.

Baltimore City. The bill of complaint filed in this case on the 20th of March, 1867, by the appellee, charged that he was the assignee of a mortgage executed by Robert K. Huntt to William Hamilton, covering a certain leasehold interest in a lot improved by two three-story brick dwellings, on Sterrett street in the city of Baltimore, and intended to secure a debt of §1000, which became due on the 1st of January, 1859, and which at the time of filing the bill was wholly…

The land in controversy was conveyed to Prudence Biggs on the 28th of December, 1828. While seized of this land, on the 15th May, 1831, she intermarried with David Morrison, and about the year 1858 died, never having had any child or descendant, and having no brother or sister, or descendant of any brother or sister, or other descendants or kindred, but leaving her husband, David Morrison, surviving her.

The bill of complaint in this case, was filed by the appellee against the appellants; its object was to have a tax sale, at which the appellants were purchasers of certain lots of ground in the city of Baltimore, declared void, and a deed for the property made by the City Auditor to them, set aside on the ground that the property belonged to the appellee, that the tax sale was a nullity, and! the deed was a cloud upon her title.

This was an action of assumpsit brought by the appellant against the appellee, upon the common counts. At the trial the plaintiff filed an amended narr, containing three counts, the first in assumpsit, the second and third in trover. Pleas — the general issue.

C. M. Stewart, by deed dated the 6th of May, 1864, assigned certain leasehold property in Baltimore city to Julia McHenry Tyson, wife of Richard ~W. Tyson, “ her personal representatives and assigns, as thereinafter set forth, for all the residue of the term,” ¿•c. The deed then provided, that during her natural life the property should be held by the said Julia, to her sole and separate use, and free from the control of her present, or any future husband, “ with power ” to…

Maria McDonald, under a deed of trust from lier father James Long, made in the year 1803, and under his will confirming said deed, became… Held: possessed, and enjoyed, disposed of, sold and conveyed, by her as a féme sole to the same purpose, extent, and effect, as she might or would have done had said marriage never taken place.” Subsequent to the divorce, the appellee, Augustus O. Linville, one of her children, filed the bill in this cause for a sale of said real estate,…

Tbe facts- of tbe case are stated in tbe opinion of tbe Court.. cited 2 Gree.nl. Ev., secs. 172, 209 ; 1 Greenl. Ev., secs. 74-79 ; Shaw vs. Broom, 4 Dowling Hyland,, 730 ; Smith vs. De Wrintz, Ryan cited Story on Promissory Notes, secs. 190,197; Goodman vs. Harvey, 4 Adolph Ellis, 870, adopted in Com. ‡ Farms. Nat. Bk. vs. First National Bk., 30 Md., 11; G-wynn vs. Lee, 1 Md. Ch. Dec. 448-9; Hopkins vs. Kent, 17 Md., 120; Benjamin on Sales, 336.

Appeal -from the Circuit Court for Calvert County. This was an action of debt brought by the appellants against the appellee. The declaration contained three counts, all of which stated the cause of action to be a writing obligatory, whereby the defendant acknowledged himself to bo bound to the plaintiffs in the sum of $950, to be paid on demand. The defendant pleaded non est factum and payment, upon which pleas issues were joined.

The bill in this case was filed by the brothers and sisters of Jonathan Plaine, deceased, and the children of brothers and sisters of Lydia Plaine his wife, now deceased, against Reuben Saylor, the appellant, eldest son of Jacob Saylor, deceased, surviving trustee of the will of Jonathan Plaine, deceased, to establish the trusts of the will of said Jonathan Plaine. The terms of the will are set forth in the opinion of the Court.

The appellee in this case was appointed trustee, under certain proceedings in equity, to sell the real estate of John Brookes, and sold a portion of the same to Thomas E. Bowie.

This was an action of assumpsit for goods sold and delivered, brought by tho appellee against the appellant. The defendant pleaded “ never indebted ” and “ did not promise as alleged,” upon which pleas issue was joined.

The object of the bill in this cause, filed by the appellant, was to obtain a construction of the last will , and testament of Mary Smith. The terms of the will are set forth in the opinion of the Court. The only question is, where did the estate in remainder vest ? To what period must’ the “ survivorship ” be referred ?

This action was brought against the appellant by Albert Ritchie, the testator of the appellees, to recover damages for injury to his person and property.

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

<p>Appeal from the Circuit Court for Frederick County.</p>

This was an action for money had and received, and for an account stated, brought by the appellee against the appellant. The appellant was the Treasurer of a Draft Association, formed by certain citizens of Middletown District, in the month of January, 1865, and the plaintiff', who enlisted as a volunteer, claimed to be entitled to receive from the appellant the sum of $400, being the bounty offered by the association to persons enlisting.

The questions in this cause arise upon a policy of insurance, issued by the appellant (the defendant below) to the appellees. The insured were engaged in the business of selling and rectifying liquors at No. 9 Commerce street, in the city of Baltimore.

This was an action of attachment brought by the appellees against the appellant, to the May Term, 1867, of the Court of Common Pleas. The defendant was returned 11 non esl,” and the attachment was returned “ attached as per schedule,” the property described in the schedule being the interest of the defendant in a lot of ground in the city of Baltimore.

<p>Appeal from the Supreme Bench of Baltimore City.</p>

The facts of the case are fully stated in the opinion of the Court. The short copies of the judgments, which were declared by the Court to he sufficiently authenticated, were each certified in these words: “True copy, Test: E. B. Prettyman, Clerk.”

Circuit Court for Prince George’s County. The appellant, Townshend, recovered a judgment against ■ the appellee, Chew, at the April Term, 1858, of the Circuit Court for Prince George’s County; a scire facias was issued on this judgment against the terre-tenants of the said Chew, returnable to the April Term, 1864, of said Court, which was never réturned by the Sheriff, and an alias writ of scire facias was issued, returnable to the following November Term, which was also…

This action was brought by the appellee against the appellant’s testator, in his lifetime, to recover for services rendered as a real-estate broker. The appellee was employed by Byrd to procure a purchaser for certain premises, No. 51 Courtland street, to be sold in fee simple for $5,000.

Tbe bill of complaint filed in this case by the appellant, on the 8th of April, 1867, against the appellees, alleged that on the 7th July, 1862, the executors of Thomas Street, by virtue of a power contained in the will of their testator, offered at public sale, at the Exchange Salesroom, in the city of Baltimore, a certain house and lot on East Eayette street, in the occupancy of the complainant, at the date of filing the bill; that on the day said property was advertised…

On the 13th day of December, 1864, a writ of attachment on warrant was issued in this case, at the suit of the appellees against the appellant, a non-resident, for the purpose of recovering the sum .of $538.68, alleged to be due for lumber sold and delivered to the latter by the former, which writ was returnable to the January Term, 1865, of the Court of Common Pleas. The short note shows the cause of action to be for goods and wares sold and delivered.

This was an action brought by the appellee in the Court of Common Pleas, in 1868, to recover the sum of $250, alleged to be due to him by the appellant, as compensation for his services in effecting the sale of certain land, in August, 1866, alleged by the appellee to have been sold through his efforts.

The nature of the ease is fully presented in the opinion of the Court. The law under consideration requires the non-resident to pay for his license to sell goods by sample, &c., the sum of three hundred dollars, which is twice as large a sum as it exacts from the resident engaged — whether selling by sample or otherwise — in the most extensive mercantile transactions. Code of Pub. Geni. Laws, Art. 56, see. 55.

This is an action of replevin, brought by the appellee ’ against the appellant. The defendant pleaded four pleas, viz.: 1st. Non cepit. 2d. Property in defendant, as administrator of William Smith, deceased. 3d. Property in William Smith, deceased. And 4th. Property in William Smith, at the time of his death.

The facts of this case are sufficiently stated in the opinion of the Court. On the trial of the issues in this case, under the instructions of the Court, a verdict was rendered for the defendant on all the issues. The plaintiff reserved five exceptions. First exception. — The plaintiff claimed mesne profits from the 1st day of May, 1854, the date of the demise, to the day of the commencement of this action.

The late Dr. James S. Owens being seized in fee of two farms in Anne Arundel county, executed, with the concurrence of his wife, the present appellee, two mortgages. The first, bearing date the 6th of April, 1863, conveyed one of the farms to Mrs. Henry, to secure a loan of $4000, payable five years after date, and the interest thereon.

Appeals from the Supreme Bench of Baltimore City. On the 27th of December, 1867, Martin Roth filed in Baltimore City Court, his petition, in which he stated on oath, that his son Frank Roth, aged about twelve years, had been illegally committed, and was unjustly held and detained in the House of Refuge; that his son was so committed without his consent; that he was pecuniarily and morally able to care for and have the custody of his child, who was not of vicious and…

<p>Appeal from the Circuit Court for Prince George’s County, sitting in Equity.</p>

<p>Bond — Election—Estoppel—Release—Evidence—Executors liability for Debts returned as Sperate— Interest.</p> <p>A executed a bond conditioned for the return to the estate of B, a resident of Maryland, within one year after B’s death, of certain negroes mentioned therein, or such of them as' should be then living, with their increase; or to pay to C $1,000 of the debt of $5,000, secured by the bond, $2,000 to I), and to retain the balance himself. It was left optional with him which of these two conditions he should perform; but he was required to elect between them, within twelve months after .the death of B. In June, 1860, B died, leaving a will appointing A her executor, and bequeathing $1,000 of the money due upon the bond to C, and providing that if A should pay O the $1,000 mentioned in the bond, the legacy to her should be void; but if A should pay the. $1,000 out of the estate, he was to be discharged from that amount on his bond. The will of B was admitted to probate in November, 1860, and in January, 1861, A returned a list of debts due the estate, in which he included the debt due by him upon said bond. Held :</p> <p>1st. That this was an election made by him within the time required by the condition of his bond, to pay the money and keep the negroes.</p> <p>2d. That A having taken out letters testamentary under the will, and returned his bond in the list of debts due the estate, and charged himself in his account, in the Orphans’ Court, with over $1,700 interest thereon, had thereby assented to the disposition made by the will of the amount due upon his bond, and was estopped from denying that the sum due upon it was assets in his hands, belonging to the estate of his testatrix.</p> <p>3d. That the release of a mortgage executed by A to B, to secure to her the payment of the interest upon the debt secured by the bond, was not proof of the satisfaction or release of the bond.</p> <p>4th. That even if the release of the mortgage could have raised a presumption of a release or satisfaction of the debt due upon the bond, that presumption would be completely rebutted by the fact of B having subsequently recognized its existence and binding force by her will, and the payment of interest thereon for years afterwards by A, and his returning it in the list of debts due the estate of B.</p> <p>Where an executor has returned a debt as sperate, it will constitute a proper item of charge against him, in the absence of evidence to show that it has not been paid.</p> <p>Where an executor has assets in his own hands to apply to certain allowances immediately upon their being passed by the Orphans’ Court, he will not be entitled to interest upon them.</p>

<p>Construction of the Act of 1868, ch. 187, incorporating the Broadway and Locust Point Ferry Company.</p> <p>The Act of Assembly of 1868, ch. 187, incorporating the Broadway and Locust Point Perry Company, after conferring general ferry rights, authorized and empowered the company “ to hold and use as a wharf or landing, for the use of said ferry, the end of the wharf commonly known as the County wharf, together with a right of way in common with others, through the centre of said wharf, of the width of ten feet, as a thoroughfare for travel to and from the end of said wharf.” It also imposed certain conditions, upon the performance of which, by the company, the privileges conferred by the Act, were made to depend. Held:</p> <p>That the Act of Incorporation was constitutional and valid, and conferred upon the company the exclusive right to hold and use the end of the wharf for ferry purposes.</p>

This was an action of assumpsit, brought by the appellants against the appellee, to recover the sum of $253^^ for goods sold and delivered.

This action was brought in the name of the State for the use of the widow and children of Charles Geis, deceased, to recover damages for his death, alleged to have been caused by the negligence of the appellant The deceased was a German laborer, engaged with others, at the time of the accident, in unloading a car laden with corn,. standing upon a siding leading into the warehouse of C. Slagle .& Co., on North street, in the city of Baltimore.

This action was brought by the appellee to recover damages for an injury to his person, caused by his being caught between two railroad cars of the appellant, and having his arm injured.

The bill of complaint in this case was filed on the 30th of June, 1869, by George M. Gill and others, in behalf of themselves, and of all others similarly interested, who might desire to make themselves parties to the proceeding, and represented that they were all citizens of the State of Maryland, and taxpayers on real and personal property situated in the city of Baltimore, and all citizens and residents of the city of Baltimore, except one, who was a citizen of Baltimore…

The appeal in this case was taken from an order of the Court refusing to grant an injunction. The facts are sufficiently detailed in the opinion of the Court. The .loans made by the individual defendants, directors and officers of the bank, being ultra vires and in violation of the charter of the bank, were void, and the securities taken therefor were void, and the bank acquired no title to the securities taken for such loans.

This was an attachment on judgment issued out of the Superior Court by the appellants, and laid in the hands of the appellee on the 11th of May, 1867. The garnishee pleaded nulla bona, on which plea issue was joined, and on the 11th May, 1868, the case was tried, and a verdict rendered in favor of the garnishee. The judgment on which the attachment was issued was obtained against Penn, Mitchell and Oliver, then constituting the firm of Penn & Mitchell, in April, 1864.

This suit -was brought in October, 1867, by the appellants, to recover the sum of $514.44, for goods sold and delivered to Julia Lowenthal, the appellee’s wife, by them, in 1860. The defendant pleaded non assumpsit and limitations, on the former of which pleas issue was joined, and the plaintiffs replied to the plea of limitations, a new promise on the part of the defendant, on which he joined issue, and the verdict was for the defendant.

Tills was an action of trespass de bonis asportatis, brought by the appellee, a married woman, through her next friend, against the appellants, for attempting, by means of attachment on original process, to subject her separate property to the debt of her husband, At the trial below, Louisa Schultz, the plaintiff, testilied that in the latter part of 1865, she was carrying on the tailoring business on her separate account, having started on November 22d, with a stock of…

Cross Appeals from the Circuit Court of Baltimore City. By the decree of this Court pronounced on the first appeal, 21st December, 1866 (vide 26 Md., 119), and the opinion accompanying that decree, it was definitively adjudged, that the first clause in the will of David Barnum, the testator, was void and inoperative; that the third, eighth, ninth and tenth clauses, and the last paragraph of the fourth clause, and the entire codicil, shared the same fate, and that the…

' This was au action to recover damages from the defendant, because of an accident to the plaintiff, Elizabeth Altvater, which happened under the circumstances detailed in the following statement of facts: The plaintiff, Elizabeth Altvater, when passing along Saratoga street, in the winter of 1868, was thrown down by being run against by a sled going along that street at a rapid rate of speed. She was seriously injured by the accident.

A foreign attachment is not mesne process. It is original. The attachment is the principal, and the writ of summons, representing the old capias, ancillary. The judgment upon the summons is only a judgment for the purposes of the attachment, and is incapable of operating as a judgment in personam. The common trustee process of New England, which gave rise to much litigation under the Bankrupt Act of 1841, is quite different.

On the 31st December, 1855, B. T. Johnson executed a mortgage on a certain house and lot, in the town of Frederick, to Barbara Robertson, and on the 13th May, 1861, he conveyed the mortgaged property to ¥m. J. Ross, in trust for Jane C. Johnson, his wife.

Appeals from the Superior Court of Baltimore City. At tlio trial below, the plaintiff offered the following' prayers: 1.

At tlie trial below the plaintiffs offered the following prayer: If the j ury find from the evidence that the draft in controversy was discounted by the defendant for the plaintiffs as partners, trading as J. W. Grafflin & Son, on the 5th of J une, 1867, and was forwarded by the defendant to be presented to the drawee for acceptance, and was accordingly so presented on the 22d day of July, 1867, to the said drawee, who refused to accept the same, and that said draft was…

Appeals from tbe Superior Court of Baltimore City. These appeals are taken from orders refusing to quash, a writ of fieri facias and a writ of attachment, issued out of the SujDerior Court of Baltimore City,' upon a judgment recited in the writs to have been rendered in the Circuit Court for Prince George’s County. The facts of the case sufficiently appear in the opinion of the Court.

The facts are sufficiently detailed in the opinion of the Court. The petitions for discovery and production of books should have been granted; the petition for discovery is one thing — the production of books discovered is another. In any Chancery cause, petitions and interrogatories to be answei’ed under oath, can be respectively exhibited by either party against the other.

This was an action of ejectment, instituted 10th of March, 1868, in the Superior Court of Baltimore City, by the lessee of the appellants against the appellee, the tenant in possession, to recover a lot of ground on Philpot street, in the city of Baltimore. The defendant appeared, and the usual consent rule was entered into, a plea of not guilty filed, and issue joined thereon.

The facts are sufficiently detailed in the opinion.of the Court. Three questions arise in the decision of this case: The first is, was the claim purchased from Hanson negotiable or assignable, so as to vest in a holder or assignee of it a good legal title? The second, had Hanson power, by endorsing or assigning the certificate of claim on the treasury of Maryland, to transfer the property therein to the holder or assignee ?

The facts of the case are sufficiently stated in the opinion of the Court. The case of Green Sp Trammell vs. Trieber, 3 Md., 11, has no resemblance to this case. There, the Court decided the deed of trust void, on account of reservations in the deed in favor of the grantor.

The facts of the case are sufficiently detailed in the opinion of the Court.

The facts of the case arc sufficiently stated in the opinion of the Court. The Commissioners of Charles county neglected and failed to have the Act of 1867, ch. 341, complied with or executed in Charles county.

• On the 1st of November, 1858, a certain Maulden Perine executed and delivered to the appellant a bond of conveyanee for the premises referred to in this case. The consideration named was $600, which the bond prescribed should be paid in monthly instalments of $20.

<p>Construction of a Bond and Mortgage — Condition not a Penalty or Forfeiture — Effect of a tender of Interest after breach of Condition — Assignees of the Equity of Redemption.</p> <p>A and B being indebted to 0, on their bill obligatory, bearing date the 24th day of July, 1866, on the same day, with their respective wives, executed a mortgage to secure the payment thereof, according to its terms. The bill obligatory provided, “ that the said sum of money •should bear interest from the 12th day of July, 1866,'at six per cent, per annum, and be payable annually from the said 12th day of July, 1866; and that if said interest should be punctually paid when the same falls due, the obligors should have five years from said 12th day of July in said year, in which to pay the principal; but that if default should be made in the punctual payment of the interest, the whole principal should become due and demandable.” The mortgage also contained a covenant to the same effect. There was a sale of the equity of redemption and default in the payment of the interest. Upon a bill filed to foreclose the mortgage and to procure a sale of the mortgaged premises. Huid :</p> <p>1st. That upon the failure to pay the interest annually, according to the terms of the covenant, as contained in the bond and mortgage, the whole debt became due and demandable.</p> <p>2d. That the condition of the mortgage was not in the nature of a penalty or forfeiture.</p> <p>3d. That the tender of the interest, in August, 1867, being after the same fell due, did not avoid the consequences of the breach of the condition,</p> <p>4th. That the assignees of the equity of redemption took the land subject to the mortgage and the covenants therein, which may be enforced against, the land in the same manner and to the same extent, as if the assignment had not been made.</p>