Volume 32 — Maryland Reports

This appeal was taken from an order of the Court below, passed upon petitions filed by the- appellees, in the case of Taylor vs. Griffith and others, allowing the claims of the petitioners, and directing the auditor to state an account between the several parties, in áccordance with the principles contained in the opinion accompanying the order, and also from the order ratifying the report and accounts of the auditor filed pursuant to the first order.

This appeal was taken from an order of the Orphans’ Court of Baltimore city, dismissing the caveat of George Schull, a lunatic, by his committee, to the probate of two papers purporting to be last wills of his mother, Margaret Ludeking, executed the one on the 15th of July, 1863, the other on the 25th of April, 1864.

This was an attachment on warrant, by the appellant against the appellee, a corporation not chartered by the State of Maryland, to recover an indebtedness originally due to him by the Manassas Gap Railroad Company, and for which it was claimed the appellee had become responsible. The attachment was dissolved by bond, and the appellee appeared and pleaded to the short note.

<p>Mandamus — Practice.</p> <p>Under the terms of the Act of 1858, ch. 285, a petitioner for a mandamus may properly demur to the answer.</p> <p>The writ of mandamus cannot properly he granted to a party applying therefor, who has previously, for the same causes of complaint, instituted proceedings in equity, under which full, complete and specific relief may he afforded him.</p>

The facts of the case are’ sufficiently stated in the opinion of the Court.

The original petition, filed in this case on the 11th of August, 1868, was in the name of Mary H. Redman, by her next friend,William S. Callahan; to this the appellee filed his answer. Subsequently, the petition was, by consent, amended, so as to make James A. Redman and Mary H. Redman his wife, the parties petitioners, and hy like consent, the answer was also amended so as to conform to the change thus made in the parties to the petition.

<p>Practice in the Court of Appeals — Amendment of the Record.</p> <p>Where it appears upon the face of the record, that the judgment from which the appeal is taken, was rendered without authority of law, the Court below not having jurisdiction, the error is open to inquiry in the appellate Court, and the judgment will he reversed, and a judgment of nonpros, entered.</p> <p>The record of a case in the appellate Court, cannot, hy agreement of counsel, he amended by changing the amount for which the judgment below was rendered, so as to make it appear that the judgment was within the jurisdiction of the Court.</p>

<p>Appeal from the Circuit Court for St. Mary’s County.</p>

The object of the bill of complaint, in this case, was to obtain a decree for the sale of certain real estate, devised by Lyde Griffith, late of Montgomery county, in trust for his daughter, Rachel, and to have the proceeds of sale distributed among her heirs at law.

<p> What constitutes a Gift. </p> <p>A grand-mother, from time to time, during a period of five years, deposited various sums of money in the Savings Bank of Baltimore, to the credit of five grand-children, the accounts in the bank being in the name of each, as a minor, and the deposits made subject to her order, or that of her daughter. She also kept an account in bank in her own name, the deposits being subject to the like order. About the time the grand-mother began to make these deposits to the credit of her grandchildren, she declared-that “ she was going to put the money in bank for the children.” Under the b3'-laws of th'e Savings Bank, guardians could deposit for the benefit of their wards, and parents for their children ; and if desired at the time of deposit, subject the same to the control of such guardian or parent. The grand-mother died, and shortly after her death, the daughter, who was the executrix of her mother, obtained from bank all the money that had been deposited to the credit of the grandchildren, and administered it as a part of the estate of her mother. Upon a bill filed in the name of the grand-children against the daughter, to obtain an account of the moneys so withdrawn by her, it was Held :</p> <p>That the moneys deposited by the grand-mother were perfected gifts, which she had no design to countermand; and the donees were entitled to the several amounts which stoo'd to their credit in bank, when .withdrawn by the defendant, with interest thereon from the date of the withdrawal</p>

. This was an action of assumpsit brought by the appellee to recover the balance of an account alleged to be due him by the appellant. The defendant pleaded three pleas — 1st, that he never was indebted; 2d, that he did not promise as alleged; and 3d, set-off, and filed an account in bar.

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

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The facts of the case are sufficiently presented in the opinion of the Court. The nar., beside the common money counts, contained the following special count, being the seventh:</p> <p>That the defendants, on the 23d day of May, 1866, by their promissory note or due bill, now overdue, promised to pay to one Samuel Turbutt §1000, on demand, but did not pay the same. That on or about December 6th, 1866, said Samuel Turbutt endorsed, assigned and transferred said due bill to said plaintiffs, or order, and delivered the same; and that on or about May 25th, 1867, said plaintiffs gave due notice to said defendants of said endorsement, transfer and delivery, and that they were the holders thereof, and demanded payment of the same, which was refused by the defendants.</p> <p>The plaintiffs asked the following instruction:</p> <p>If the jury find that the due-bill offered in evidence was signed by the defendants, and endorsed in blank by Samuel Turbutt, the person therein named, and that he delivered the same, so endorsed in blank, to the plaintiff, McIlwane, and that the words, “ Pay McIlwane, Goodwin & Co., or order,” were written by the plaintiff, McIlwane, over said blank endorsement, before the institution of this suit, and that before the institution of this suit the defendants were notified that the said due-bill had been assigned to the plaintiffs, then the plaintiffs are entitled to recover so much as the jury may find to have remained unpaid of said due-bill, at the time the defendants received notice of the assignment thereof to the plaintiffs, not exceeding the amount that the jury may find to have been due from the said Turbutt to the said plaintiffs.</p> <p>The defendants offered the following prayers:</p> <p>1. That there is no legal assignment of said due-bill by Samuel Turbutt to the plaintiff as required by the Code, Art. 9, sec. 1, and therefore the plaintiffs cannot recover in this case.</p> <p>2. And if the jury shall find the making and endorsement of the due-bill, and its delivery to said Mcllwaine, then there is no evidence in this cause that the said due bill was assigned and transferred to the plaintiffs, as alleged in the seventh count of their declaration, and the plaintiffs cannot recover in this action.</p> <p>3. If the jury find the making of the due bill in this case, and that the name of Turbutt was written thereon by him, on the 6th of December, 1866, and then and there that said due bill was delivered to the plaintiff, S. O. Mcllwaine, then it was not competent for the said plaintiff to write, over the said signature, the words that are so- written, and the plaintiffs cannot recover.</p> <p>4. If the jury find, from the evidence, that the plaintiff Mcllwaine received the due bill offered in evidence, on December 6th, 1866, and the receipt given therefor, for the purposes therein stated, and' that the assignment for the benefit of creditors, as shown in the evidence, was made and delivered, then the plaintiffs cannot recover in this case.</p> <p>5. And further, if the jury find the facts contained in the first prayer, and shall further find that on the 20th day of November, 1867, the said plaintiffs__ made the assignment offered in evidence, and delivered all their assets to said trustee, the due bill in this case being included in such delivery, then the plaintiff’s cannot recover in this case.</p> <p>6. That, in order to a recovery in this case by the plaintiffs, under their seventh count in the declaration, it is necessary for them to prove the assignment from Turbutt to themselves, in manner and form as therein stated, and that no such evidence has been offered.</p> <p>7. And that the plaintiffs cannot recover, under their seventh count, because the same is defective in not averring that said assignment was made for a sufficient consideration, passing between the plaintiffs and Turbutt.</p> <p>8. That there is no sufficient evidence in this cause that a sale was duly made of gold for Turbutt by the plaintiffs on the 8th of April, 1867, and that a loss resulted therefrom to the plaintiffs, for which they are entitled to hold Samuel Turbutt responsible, and hold the said due bill as a ‘lien therefor.</p> <p>The Court gave the instruction asked by the plaintiffs, but refused the prayers of the defendants, and the verdict and judgment being for the plaintiffs, the defendants appealed.</p>

This was an action of ejectment brought against the appellant by the lessee of the appellees, to recover an undivided .moiety of a tract of land called “Darnell’s Far in,” lying in Kent county, and containing one hundred and seventy-five acres. The usual consent rule was entered into; plea not guilty, and issue joined thereon. There was an agreed statement of facts. A pro forma judgment Avas entered for the plaintiff, and the defendant thereupon appealed.

This case, instituted in the Superior Court of Baltimore city, by the appellant against the appellee, upon a policy of insurance issued by the latter to the former, was, upon the application of the appellee, removed to Howard county. The facts of the case are sufficiently set forth in the opinion of the Court.

<p> Writ of Habere Facias Possessionem. </p> <p>Under the Chancery practice in this State, a writ of habere facia.s possessionem, is not' the appropriate remedy to enable a purchaser to obtain possession of premises, sold under a decree passed in an ex parte proceeding to foreclose a mortgage, in pursuance of Article 4, sections 782, &c., of the Code of Public Local Laws, and which the party in possession refuses to surrender.</p>

This action was instituted to recover from the appellee the sum of $9,07^ paid him by mistake.

In this cause a scire facias was issued by the appellees, the plaintiffs below, against the property of the appellant, Joseph Sodini, to recover the sum of $634.35 — being the amount due on a mechanics’ lien for seventy-eight thousand seven hundred bricks sold and delivered by the appellees to John W. Lei ter, contractor and builder of the house proceeded against.

The appellants, the plaintiffs below, having obtained a judgment against A. B. Davidson, issued an attachment thereon, which was laid in the hands of the appellee; nulla bona was pleaded, and issue joined thereon. At the trial of the cause the plaintiffs offered in evidence a deed, dated March 27, 1867, from Davidson and wife, which, in consideration of $50,000 to them paid by the bank, conveyed to the bank a tract of land in Baltimore county.

<p>Effect of a Motion for a New Trial — Practice— Art. 4, sec. 20, and Art. 15, sec. 2 of the State Constitution.</p> <p>A motion for a new trial does not expire with the term of the Court at which it is made; and until it is disposed of, further proceedings in the cause are suspended.</p> <p>An execution cannot issue upon the mere -verdict of a jury, even after the-expiration of the term at which it was rendered.</p> <p>Under Article I, section 20, and Article 15, section 2, of the present Constitution, all cases pending, undecided and undisposed of, were handed over for decision and disposition to the new Courts, and the new Judges were required to take them up and decide them in the same manner as if the old Judges had continued to act.</p>

<p>Bill for an Account between Partners barred by Limitations — Equity Practice-^Jurisdiction of the Court of Appeals.</p> <p>A partnership having been dissolved, on the 28th of March, 1841, by mutual consent, W, one of the partners, filed, on the 28th of November, 1848, a bill for an account against the other -partner. There being no evidence of any dealing or transaction between the partners themselves, or as between the partners, or either of them, and third persons, on account of the partnership after 12th of June, 1841, Helt> :</p> <p>That the bill for an account was barred by the Statute of Limitations.</p> <p>An account between one partner and another, in reference to their partnership affairs, is not embraced within the exception to the Statute of Limitations in regard to accounts that concern the trade or merchandise between merchant and merchant.</p> <p>Where a Court of Equity has concurrent jurisdiction with a Court of Law, it must equally obey the Statute of Limitations.</p> <p>Where a Court of Equity has sole jurisdiction, it follows, by analogy, the Courts of Law, and refuses to entertain claims when similar claims would be barred by limitations in a Court of Law.</p> <p>A bill for an account in equity is a concurrent remedy with an action of account at law, and is equally barred by the Statute of Limitations; nor is there any reason why a hill for an account, by one partner against another, should be exempted from this rule.</p> <p>A Court of Equity having passed an interlocutory decree, referring the matters in dispute to an Auditor with authority to take testimony and state an account afterwards, on final hearing dismissed the bill as barred by the Statute of Limitations. Held :</p> <p>1st. That the interlocutory decree, having settled no right, and having declared no principle upon which the account was to bo stated, left the whole case open to be disposed of on final hearing.</p> <p>2d. That even if the Court below had, by its interlocutory decree, adjudicated the'complainant’s right to an account, and consequently overruled the defence of the Statute of Limitations, this would not preclude the Court of Appeals from reviewing the interlocutory decree as well as the final decree, under the Act of 1830, ch. 185, as modified by the Acts of 1841, ch. 11, and 1845, ch. 357.</p>

<p>Purchase of Stock through a Broker — Principles Governing the Relation of a Stock Broker and his Customer — Evidence — Practice — Principal and Agent — Admissibility of Evidence.</p> <p>T, a stock broker, was ordered by H to buy one hundred shares of railroad stock, on the joint account of H, G. E and L. R. According to the custom of trade, T wrote to his correspondents, brokers in New York, directing them to purchase, and they accordingly bought, and were, paid by T therefor. H and his confederates failed to pay T for the slock, ho therefore after notice to them, and in accordance with the custom of the business, directed his correspondents to make sale in New York, which was accordingly done. T then sued for the difference between the amount paid in the purchase and that realized from the sale. Held :</p> <p>1st. The order for the purchase being general in its terms, not directing the purchase to be made in any particular place or mode, and not containing any restrictions as to price, T had the right to mako the purolíase in New York through correspondents, brokers or sub-agents residing and doing business in that city.</p> <p>2d. He must show, however, that the stock was actually purchased under his directions by his New York agents, at its fair market price, on the day of purchase, and that he actually paid the purchase money therefor ; that he notified his principals of the purchase, and requested them to receive the stock and pay him the price he had paid for it, with reasonable commissions; that at the time of this notice, he was in condition to deliver the stock by having the stock, or other proper indicia of title, actually in hand, or in the hands of his agents; that, on the failure of his principals to receive the stock, he, after a reasonable time and notice to that effect to the principals, directed it to be sold; and that it was sold by his agents, either at public sale in market overt, or at a sale publicly and fairly made at the stock exchange, or a stock board, or a board - of brokers, where such stocks are usually sold, at a fair market value on the day of sale. Having shown this, he is entitled to recover the amount, if any, of the resulting loss.</p> <p>3d. In a transaction so conducted, there is nothing illegal or contrary to public policy; it is but the proper execution of a legitimate business order for the purchase of a valuable commodity.</p> <p>4th. The usage or custom of the particular business of buying and selling stocks on orders, may be introduced in evidence for the purpose of showing the manner in which an order received, may be performed, but not to imply an authority to execute it in a mode which the law would regard as unreasonable.</p> <p>Sth. Stockbrokers cannot, by force of any such custom or usage, bind persons ordering the purchase of stock by a merely fictitious purchase or sale, such for instance as one not bona fide and actually made, but pretended to be effected by mere entries on books and accounts between the broker and his agent.</p> <p>It is a settled rule of practice under which Courts permit evidence which is per se irrelevant to bo given, on the assurance of counsel that it is to be followed up by proof of other facts and circumstances, material and competent, with which it may have an important connection, and if the assurance is not fulfilled, then, on application of the opposing counsel, to direct the jury, not to regard it. But this rule from its liability to abuse ought not to be enlarged, and should not be extended beyond express adjudications.</p> <p>The declarations of an agent are not admissible to bind his principal under any circumstances until the agency is first clearly established.</p> <p>B employed T, a stock broker, to purchase certain stock for him. T wrote to his correspondents in New York instructing them to make the purehasp, and they, by letter, informed Mm that the stock was purchased. Held :</p> <p>That the letters of T’s correspondents to Mm are inadmissible to prove the purchase in a suit by T against U for the purchase money.</p>

Under a commission to take testimony in this cause, Stephen J. Joice and Emily Joice, his wife, daughter of the appellee, testified on behalf of the appellee. The appellant excepted to the admissibility of their parol testimony to engraft a trust upon the deed of October 22d, 1862, unless upon the ground of fraud. The remaining facts will be found sufficiently detailed in the opinion of the Court.

<p> Parol testimony to aid the Construction of Written Contracts. </p> <p>In 1864, G. S entered into a contract with E. S, hy letter, for the purchase of a farm. The terms of sale, as expressed in a letter of G. S to E. S, dated Jan’y 11th, 1864, were: “ I now offer $11,000 for said farm as it is, including the wheat in the ground * * * * the farm to be paid for as follows: whenthe premises are cleared and the deed made and recorded, with searches of docket, and handed over to mo free of cost, I will pay over $1000, and will give my due bill or surety for balance, after deducting my claim to be paid in all, January, 1865; neither party to charge or claim any interest.” Several letters had passed between the parties in relation to the purchase and the claim of G. S against E S, prior to the one containing the definite offer of terms. An offer was made at the trial to introduce the prior correspondence to explain the terms of the contract. Hbld :</p> <p>1st. That no rule of evidence is infringed by resorting, in the construction of this contract, to all the written correspondence, as well that which preceded the offer as that which preceded its acceptance. The terms, limitations and conditions of the contract must be found in the letter of the 11th of January; one of the essential conditions, however, there found is, that the vendee’s claim shall be deducted from the purchase money, but as to what that claim is in amount, and of what items it consists, the letter itself is silent, and this must of necessity be determined de hors.</p> <p>2d. That the case falls within the general rule that as to the parties or subject-matter of a contract, extrinsic evidence may and must be received and used to make them certain, if necessary for that purpose; the contract must be applied to its subject-matter by evidence from without. Such evidence, however, is not to be used to contradict ,or vary the written instrument, but to aid, uphold and enforce it as it stands.</p> <p>3d. That parol proof to show that the farm was worth $15,000 or $16,000, at the date of the purchase is inadmissible. The price to be paid for the land is definitely fixed by the contract at $11,000, and if this parol testimony does not contradict the agreement in this respect, it is for every other purpose irrelevant.</p> <p>A mistake in the date of a letter may be established and corrected by parol proof.</p> <p>Where an offer is made by letter, an acceptance by written communication takes effect from the time when the letter containing the acceptance is mailed, and not from the time when it is received by the other party.</p> <p>The acts done by one party after the completion of the contract, in furtherance of his understanding of it, cannot bind the other party, nor is it admissible in aid of the construction of the contract.</p> <p>The rule that an offer is to be construed most strongly against the party making it, is one of strictness and rigor to be resorted to only when all other rules of exposition fail.</p>

<p>Equity Jurisdiction — Bight of a Party injured by a Felony, to maintain a Civil Action against the Offender.</p> <p>The iron safe of A was robbed of a large amount of coin and United States compound interest notes, and of one United States bond. B was arrested, charged with the felony, and lodged in jail. Before he was brought to trial, he succeeded in making his escape, and was not again heard of. At the time of his arrest, he had about his person several hundred dollars, which was taken possession of by the sheriff, and, with the exception of a small sum, retained by him. B also owned some real' estate in the county where the robbery was committed; this, together with the money in the possesion of the sheriff, A sought to reach through the intervention of a Court of Equity. Held :</p> <p>That a Court of Equity had no jurisdiction to grant relief; but that if the money and United States bond were taken by B, as charged, he was liable to A in a civil action, in virtue of section 192, Article 30 of the Code of Public General Laws.</p> <p>The absence of a party beyond the reach of process at law, does not of itself, without reference to the subject-matter of the suit, confer jurisdiction upon a Court of Equity.</p>

This was an action of assumpsit, brought originally in the Circuit Court for Caroline county, by the appellee, for the recovery of a sum of money loaned by her to her husband, the testator of the appellants. Upon the suggestion of the defendants, the record was transmitted to the Circuit Court for Talbot county.

Appeals from the Court of Common Pleas. On the 30th of September, 1852, Conrad Leiman conveyed certain leasehold premises to Harman Schaferman. On the 22d of May, 1854, Leiman applied for the benefit of the insolvent laws, and on the 2d of September following, obtained his final discharge; William Seip was appointed his trustee. On the 6th of January, 1857, Schaferman ré-conveyed the premises to Leiman; this deed was recorded on the 9th of June, 1860.

The facts of the case are sufficiently stated in the opinion of the Court. The verdict and judgment were for the plaintiff, and the defendants appealed.

Appeals from the Circuit Court of Baltimore City. The bill of complaint in this cause was a creditor’s bill filed on the 19tli of January, 1867, by Robert B. Johnston and William Jack, trading under the firm name of Johnston, Jack & Co., in the town of Hollidaysburg, in the State of Pennsylvania. After the cause had been argued and submitted for a final decree, Robert B. Johnston died.

The bill of complaint in this case was filed on the 29th of July, 1868, by the appellant, praying for an injunction to restrain the appellees from proceeding with an execution issued against him and levied upon his property. An injunction was issued as prayed. The appellees answered the bill and moved for a dissolution of the injunction. The Court, by its order of the 11th of May, 1869, dissolved the injunction and dismissed the bill.

Court for Washington County. . This action was brought by the appellee against the appellant, who resided in Franklin county, Pennsylvania,‘to recover the value of a certain lot of rye. In May, 1862, an execution was issued to the sheriff of Franklin county, Pennsylvania, out of the Court of Common Pleas of said county, at the suit of Thomas P. Weller against Jacob Myers and the appellant, and levied upon a lot of rye then in a mill in said county.

This was an action instituted by the appellant to recover from the appellee on a subscription to its capital stock. - Exception: The plaintiff offered in evidence the Acts of Assembly of 1852, ch. 304, 1853, chs. 37 and 363, 1856, ch. 289, and all subsequent Acts by way of amendment or supplement to the Act of 1852; and a book of subscriptions, containing the- subscription of the defendant.

The appellant purchased from Henry Brocket', a broker, a promissory note, dated 21st of December, 1868, for $600, drawn by the appellee, payable, three months after date, to the order of William Heck, and by him endorsed. The note was signed by the officers of the appellee, who had before signed and issued notes which had been paid by the appellee, and it had been the habit for notes to be given in the same manner and paid at maturity.

<p>Sufficiency of a Sheriff's return to a Writ of Fieri Facias — Purchaser at a Sheriff's Sale — Habere Facias Possessionem.</p> <p>A writ of fieri facias was issued on the 12th of January, 1864, returnable to the April Term ensuing, of the Circuit Court for Prince George’s county, upon a judgment l'endered against the appellant in favor of the appellee. On the 16th of May, 1864, the sheriff made return of the writ, setting forth his seizure and sale thereunder, of a lot of ground as the property of the appellant, the defendant in the execution, and then in his possession. The return further stated that the said real estate and premises were sold to the appellee, the plaintilf, who was the highest bidder therefor; and that by said sale the sheriff made the debt, interest and costs in said writ specified, and paid the same to the plaintiff. Accompanying the return, as part of it, was an advertisement signed by the sheriff, setting forth that the property would be sold at public sale, to the highest bidder, for cash, at the residence of the appellant, on Friday, the 5th of February, 1864, at 12 o’clock, M. Htsld :</p> <p>1st. That the return of the sheriff to the writ of fieri facias was sufficient.</p> <p>2d. That the return imported that the property was sold at public sale, and that the price at which the sale was made, was the amount due upon the execution.</p> <p>3d. That the purchaser at the sheriff’s sale acquired the title field by the appellant at the time the judgment against him was rendered; and his right to the writ of possession cannot be defeated by any agreement which the appellant may have made with a third party, after the seizure and sale, to become his tenant.</p> <p>The omission by the sheriff to state, affirmatively, that legal notice was given by him of the sale under the fieri facias, or the price at which the property was sold, does not impair the validity of the return to the writ, or the title of the purchaser.</p> <p>The omission by a sheriff to have the property, which was seized under the . execution, appraised before it was sold, is no ground of objection to an application for the writ of possession by the purchaser.</p>

The facts of this case are sufficiently presented in the opinion of the Court.

<p>Accident within the meaning of an Insurance Policy— Negligence of the Assured — Questions of fact— Practice.</p> <p>An unusual and unexpected result attending tlie performance of a usual and necessary act, and an event which takes place without foresight or expectation, is an “ accident ” within the meaning of a policy of insurance.</p> <p>In an action on a policy of insurance against accident, the negligence or carelessness of the assured is no defence.</p> <p>A policy of insurance against accident contained a clause exempting the company from liability for injury, caused by the wilful exposure of the assured to any unnecessary danger or peril. It contained also the condition that “in the event of injury, within the meaning of this policy, occurring to the assured, he, or in case of his death, his legal representatives, shall as soon thereafter as possible, give notice in writing- thereof to the company at their office in Chicago, or to the agent writing this policy, together with the full name, occupation and address of the assured, with full particulars of the accident or injury.” In an action on the policy, the plaintiff’s prayer, which was granted by the Court, left it to the jury to find whether the death of the assured was caused by his wilful exposure to unnecessary danger, and whether proof of the death, with full particulars of the accident, was furnished to the defendant’s agent as soon as possible thereafter ? The jury found against the insurance company. Held :</p> <p>That the granting of the plaintiff’s prayer, which submitted these questions, being questions of fact, to the finding of the jury, furnish no ground for reversing the judgment.</p> <p>A party who has offered testimony which was admitted by the Court against the objection of the opposite party, may afterwards, and before instructions are asked for, and before the case has been argued by counsel, ask to have the same withdrawn from the consideration of the jury, and the Court may allow and direct its withdrawal.</p>

This action was brought by the appellee against the aptpellant to recover the sum of $2,000, claimed to be due to the former upon a policy of insurance, which had been issued to her by the latter, upon the life of her deceased husband, Henry Hoeske. The defendant pleaded, “never was indebted as alleged,” “did not undertake and covenant as alleged,” and non-performance of conditions, Ac., by the plaintiff’s intestate.

<p>Appeal from the Circuit Court for Baltimore County.</p> <p>The facts of the case are sufficently detailed in the opinion of the Court.</p>

On the 15th of January, 1866, the appellant received at Brady’s Mills, to be transported over its road to Baltimore, certain cattle, the property of the appellee. A number of the cattle were killed on the route, and others were injured. This suit was brought by the appellee to recover damages for the loss and injury. The appellant offered in evidence a printed tariff 'of special rates, under which it assumed no responsibility for loss, damage or delay to stock.

<p>Attachment on Warrant — Form of Certificate— When ■ the Affidavit for an Attachment is made before a Judge of another State.</p> <p>An affidavit for an attachment on warrant was made before a Judge of the Supreme Court of New York. Annexed thereto was this certificate: “State of New York, New York City and County, to wit: I, "William C. Conner, Clerk of the Supreme Court of the State of New York, aforesaid, do hereby certify that "W. T. Clerke, whose name is subscribed to the above certificate or affidavit, was on the day of the date thereof, a Judge of the said Supreme Court, duly commissioned and sworn, and had authority to administer the oath therein mentioned.” This certificate was duly signed and attested by the seal of the Court. Held :</p> <p>That this was not a substantial compliance with the form of certificate required by Art. 10, sec. 6, of the Code of Public General Laws, inasmuch as it does not appear from the certificate that the Judge before whom the affidavit was made, was a Judge of a Court of Record.</p> <p>The proceedings in attachment being wholly statutory and in derogation of the common 'law, must strictly follow the provision of the statute under which they are authorized</p> <p>There need not be a literal compliance with the statute, a substantial compliance being all that is necessary</p> <p>A motion to quash an attachment for a substantial defect in the proceedings, goes to the question of jurisdiction and will be entertained at any .stage of the trial.</p>

This was an action on an injunction bond, brought by the appellee against the appellant and George H. Wetter and John Sauerhoff.

<p>Evidence — Color of Title — Adverse Possession by Color of Title — Adverse Possession.</p> <p>It is the duty of a party offering evidence, not appearing of itself to bo relevant, to accompany it with a proffer to follow it with such other proof as will make its relevancy appear; and if lie fail to do this, the Court may properly reject the evidence offered.</p> <p>Color of title is such title as in appearance is good and sufficient, hut which in reality is not good and effectual. The paper title, to give color, must ho so fax pj'ima, f acie good in appearance as to be consistent with the idea of good faith on the part of the person entering under itthe enquirybeing, -whether there existed such an apparent or colorable title, under which claim and entry could have been made in good faith ; the party believing his title to be good, and his claim well founded. If such color and good faith do not exist, the party’s seisin must be confined to his actual possession, which, before the Act of 1852, ch. 177, must have been clearly indicated by enclosures.</p> <p>Adverse possession, by color of title, is made out by the co-existence of two distinct ingredients — the first, such a title as will afford color ; and. secondly, such possession under it as will be adverse to the .right of the true owner; and whether these two essentials exist, are, in all cases, questions of law, to be determined by the Court, though the facts upon which they are founded, are for the finding of the jury.</p> <p>A land office warrant, issued by the State of Virginia, and a patent granted thereon, for land described as and declared to be located within that State, and a deed from the patentee for the same land, are simply void as to titles to lands within the limits of this State, and cannot bo allowed to have the effect even of giving color of title to a party who would otherwise bo in the predicament of a mere trespasser.</p> <p>Possession, to be adverse, must appear to have been actual, hostile, visible, notorious, exclusive and continuous for at least twenty years before suit brought, in order to form a bar to the assertion of the legal title by the owner ; and if these characteristics are not shown, or proof offered from which they may he inferred to exist, the evidence is legally insufficient.</p> <p>If a party claim title to land by possession thereof, in the same manner as it had been held by his predecessor, the imperfect possession of the latter cannot, when united to his own, make it continuous and exclusive, as against the real owner.</p>

The proceedings in this cause were commenced by a writ of summons against Louis Harrison and Samuel K. Davidson, as co-partners, and a writ of attachment against Harrison alone, as an absconding debtor; and a narr. was filed at the time of the issuing of the writs, declaring against Harrison and Davidson.

This suit was brought in the Circuit Court for Washington county, to recover damages for the destruction of the appellee’s printing office by a mob, on the night of the 24th of May, 1862.

<p>Appeal from the Circuit Court for Anne Arundel County.</p> <p>The case is sufficiently stated in the opinion of the Court.</p>

<p>Indictment for an Assault with intent to Rob, under Section 10, Article 30, of the Code of Public General Laws.</p> <p>An indictment which charged that the traverser “upon S, unlawfully did make an assault, and him then and there -did boat, wound and ill-treat, with the intent feloniously to rob,” is sufficient to sustain a conviction under the 10th section of Article 30 of the Code of Public General Laws.</p> <p>“ To rob,” and “ feloniously to rob,” are synonymous.</p>

In addition to the facts of the case, to be found in the opinion of the Court, it may be further stated that, in 1848, the heirs of Isaac Paul brought an action of ejectment against James Owings, and, in 1851, obtained a judgment for the land derived from Richard Odie.

This was an action on the case brought by the appellant, a brakeman, to recover damages for an injury sustained by him while in the employ of the appellee.

Appeals from the Superior Court of Baltimore City. These actions were instituted by the appellee on two policies of insurance issued by the appellants respectively, to recover for a loss resulting from the destruction by fire of the well known buildings called “ Barn urn’s Museum,” on Broadway, New York.

<p>Appeal — Practice under the Act of 1864, ch. 6— Entry of Judgment by Default.</p> <p>In an action under the Act of 1861, ch. 6, after sundry unexecuted writs of summons, the defendant was returned “summoned,” but did not appear at the return day; no motion for judgment by default against him was made, and no order taken by the plaintiff on that day, or on any day previous to the next return day. After several return days had passed, on motion of the plaintiff in writing, a judgment nisi for want of appearance by the defendant was entered. At the succeeding Term, the judgment by default was extended, and during the same Term, the defendant appeared and moved that the judgment by default, and the extension thereof, be stricken out. The motion was overruled. On appeal, Held :</p> <p>1st. That an appeal lies from the order overruling the motion to strike out the judgment.</p> <p>2d. That on failure of the defendant to appear on the day to which ho was returned “summoned,” the plaintiff was entitled, on motion in writing during the time intervening between that day and the next return day thereafter, to have a judgment by default entered against the defendant, hut having failed to do so within that time, ho could not claim the right afterward.</p> <p>8d That the plaintiff having, by his own laches, lost Ms right to claim a judgment by default, the cause must be disposed of by the Court below, as if the suit had been instituted independently of the Act of 1864, ch. 6.</p> <p>4th. That the defendant having appeared, lias the right to plead in the usual form without affidavit.</p>

The bill in this case was filed on the 17th of March, 1869, by the appellees against the appellants and one Edward Powers, who was employed by them as a tax collector in the city of Annapolis, to restrain said Powers from selling the property of the appellees for payment of their proportion of a special tax for paving a street in said city. The injunction was issued as prayed. Afterwards the appellants answered and in their answer moved for a dissolution of the injunction.

<p>Summary Proceedings — Plenary Proceedings — Practice in the Orphans' Court — Proceedings by an Administratrix under Article 93, section 238, of the Code — Incompetency of a Witness lender the Act of 1868, chapter 116 — Depositions of witnesses in the Orphans' Court of Baltimore City.</p> <p>There is a clear distinction between summary proceeding under section 40, Article 5, of the Code of Public General Laws, and plenary proceedings under sections 249 and 250 of Article 93. The test of plenary proceedings, is whether a petition or bill is filed, and the parties against whom it is filed, appear and answer. Summary proceedings are without bill or petition and answer; and in such the Court is authorized and sometimes required to hear testimony, and such testimony is to bo taken orally, and on immediate notification by a party of an intention to appeal from the decree, order, decision or judgment, the testimony is to bo reduced to writing, under the direction of the Court, from its own notes or such memoranda as it may elect; or in case the testimony may not be recollected by the Court, and it have no other means of stating it correctly,-the witness or witnesses maybe re-called for the purpose of refreshing the recollection of the Court.</p> <p>In no case under section 40, Article 5 of the Code, can testimony be taken orally in open Court, the witnesses discharged, and after judgment, recalled, ré-examined, and the testimony then reduced to writing as an original proceeding.</p> <p>On a petition by an administratrix under section 238, Article 98, of tlie Code of Public General Laws, alleging concealment of the property of lier intestate, the proceedings are plenary and must be conducted in the manner prescribed by sections 249 and 250 of tlie same Article.</p> <p>And in the same proceeding a defendant is not competent under the Act of 1868, cli. 116, to testify to any matter of contract between the defendants, or either of them, and the intestate.</p> <p>Under section 182, Article, 4, “ City of Baltimore,” (Act of 1867, cli. 373, sec. 3,) authorizing the Orphans’ Court of Baltimore City, to appoint a stenographer for that Court, the depositions of witnesses taken without the aid of the stenographer, are not required to he signed by the deponents.</p>

The case is stated in the opinion of the Court. The appellee, Humbird, was made a party defendant, as being the mortgagee of the appellant for his undivided fourth part of the ground on which the hotel was erected, with other parts of the whole property, not demised to the appellee, Minke. Humbird never appeared.

Appeals from the Circuit Court for Frederick County. These two actions were separately instituted in the Circuit Court for Carroll county on the official bond of the appellee, Stephen, as collector of taxes for said county; the one dated the 5th of April, 1855, the other dated the 11th of April, 1856.

The bill in this case was filed by the appellant on the 21st of December, 1867, against the Chesapeake and Ohio Canal Company — William W. Corcoran, George W. Riggs, J. B. H. Smith, Horatio Allen and J. Philip Roman, trustees of the preferred bondholders, and John S. Gittings, Allen Bowie Davis, Charles H. Carter and Mrs. Isabella Brown, bondholders.

This appeal was taken from an order of the Court below, ratifying the third report of the auditor, distributing the proceeds of the sale of the real estate of James Hignutt, an insolvent debtor. Other facts in the case needful to an understanding of the questions decided, will be found in the opinion of the Court.

<p>Practice in the Court of Appeals — Contracts in Restraint of Trade or Business— What Constitutes a Breach of the Contract — Grood-will of a Trade or Business.</p> <p>Oil an appeal from an order granting an interlocutory injunction, the Court of Appeals, in determining the propriety of the order, is confined exclusively to the bill and the exhibits filed therewith.</p> <p>The proprietor of a certain dyeing and scouring establishment leased the same for the term of ten years, and, for a valuable consideration, sold the custom and good-will thereof, together with the right to use the same name and style as theretofore, and carry on the business of dyeing and scouring; he likewise covenanted that he would not, at any time thereafter, exercise or conduct, in the city of Baltimore, the trade or profession of a dyer or scourer, nor, directly or indirectly, compete with the lessees and vendees for the good-will and custom so sold. Held :</p> <p>1st. That this covenant was valid, not being too comprehensive in its restriction, and its violation would be restrained by injunction.</p> <p>2d. That the re-establishment or resumption of the business in the name of the son, was a breach of the covenant of the father, the allegation of the bill, -which must be taken as true, being, that the name of the son was used as a mere cover and blind to conceal the interest of the father.</p> <p>The parties to whom the sale of the good-wjll and custom was made, had entered into a partnership which was to continue during the term of the lease. Before the expiration of the time so limited, one of the partners sold and conveyed all his interest in the partnership and the property thereof to his co-partner, who, after the expiration of the lease, and upon liis failure to procure its renewal, continued the business of dyeing and scouring at a house adjoining. Held :</p> <p>That the circumstance of the dissolution of the partnership did not release the covenantor from his obligation to observe his covenant. The party continuing the business became entitled to the benefit of the covenant by virtue of the articles of co-partnership between himself' and his co-partner, and the subsequent assignment of the latter.</p> <p>The good-will of a trade or business is an interest which may be valued as between partners, and may, therefore, be assigned with the premises and the rest of the effects, by the partner retiring, to the one remaining in the business.</p> <p>Contracts restraining the exercise of a trade or profession in a particular locality, when founded upon a sufficient consideration, are good and valid, if there be a fair and reasonable ground for the restriction The restraint, however, to be lawful, must be confined within reasonable limits.</p> <p>The adequacy of the consideration of a contract in restraint of any trade or business, will not be inquired into by the Court. It is sufficient, if the contract show on its face a legal and valuable consideration.</p>

<p>Bill by one Tenant in common against his Co-tenant, for a Sale of the Common Property — Specific description of the Property not needed in the Bill — Who are not proper Parties to the Proceeding — Equity Practice — Partition—Sale.</p> <p>In a bill for the sale of real estate, such a general description only is required as will load to the identification of the property upon which the decree is intended to opera! e: and the pleadings and proof in the cause may be resorted to for this purpose.</p> <p>Asa general rule, in a proceeding by one tenant in common against his co-tenant for the sale of the common property as incapable of a just and equitable partition, a mortgagee or judgment creditor is not a proper party.</p> <p>But in all cases whore the estate is to be sold in order to effect a division among those entitled, and there are incumbrances to which it is subject, if there be any doubt or question as to the extent of the liens, the Court should, either before decree or before sale made thereunder, direct an ascertainment to bo made of the amount of incumbrance, so that no deception bo practised or prejudice done to any party concerned in the sale.</p> <p>“Where, in a proceeding by one tenant in common against his co-tenant for the sale of the common property, the mortgagees of the undivided interests in the estate have been made parties, and have acquiesced therein, the existence of the mortgages presents no substantial objection to decreeing a sale free and clear of these incumbrances, and allowing the claims to be discharged out of the proceeds of sale.</p> <p>And in the same proceeding, the tenants in possession, holding only from year to year, are, in no sense, proper parties, and the omission to make them parties, forms no ground against the decree of sale.</p> <p>In cases of partition, if one tenant in common has demised his undivided share in the estate for a long term, it is necessary that the tenant in possession should be made a party to the bill in order that he may be required to join the lessor in the deed of severance; but in a case where a sale of the estate is to be made, no such necessity exists.</p> <p>An estate in common, although susceptible of partition, will, nevertheless, be decreed to be sold, if it be shown that the division cannot be made without loss or injury to the parties interested.</p>

<p>Appeal — Scire Facias — Practice.</p> <p>No appeal will Ho from an order striking out a judgment on motion made at the same term at which the judgment was rendered.</p> <p>A writ of scire facias is not an original writ within the meaning of the second section of the Act of 1864, ch. 6, and can, therefore, be made returnable only on the return clay of the regular term.</p> <p>"Whore throe years have elapsed after a judgment by default, although there may be no chango of parties, a writ of scire facias is necessary in order to have the judgment revived and extended.</p>

<p>Liability of a Lunatic to a Civil action, for a Tort— Compensatory damages — Practice in the Court of Appeals — Article 4, section 8, of the Constitution —A Lunatic sued for a Tort, capable of submitting his case to the Court for trial, without the aid of a Jury.</p> <p>A lunatic or insane person, though not punishable criminally, is liable to a civil action for any tort he may commit.</p> <p>In an action against a party for setting fire to and burning a barn, neither evidence of his lunacy nor that the burning was the result of accident, is admissible in mitigation of compensatory damages.</p> <p>In a case submitted to the Court below for trial, without the intervention of a jury, the facts as found hy the Court may be considered, on appeal, to the same extent that they could be, if they had been found by the jury, but no further.</p> <p>Under Article 4, section 8, of the Constiution, which provides that “ the parties to any cause may submit the same to the Court for determination without the aid of a jury,” a lunatic who may be sued in a civil action for a tort, and who may therefore appear in person or by attorney, is capable of giving Ms assent to a submission of Ms ease to the Court for trial; and like every other party is bound by the acts of his attorney in the conduct of the case.</p>