Volume 34 — Maryland Reports

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

The bill in this case, filed by the appellant, charged that on or about the 26th of April, 1865, the appellee, Maria A. Miller, then Maria A. Kelsey, having purchased a leasehold interest in a lot of ground on Madison avenue, in the city of Baltimore, of a certain William Applegarth, and not being fully able to pay the entire purchase money, applied to the appellant for a loan of $6,000, which he agreed to make bn condition that she would secure the same by a mortgage to him…

<p>Practice — Nonsuit — Trial of a cause by the Court without the aid of a Jury.</p> <p>An action against tlie drawees of a foreign hill of exchange was, under the Constitution, (Art. 4, see. 8,) submitted to the Court for determination, without the aid of a jury. The plaintiffs, after admission by the defendants of the signatures of the drawees and endorsers of the bill, offered evidence of its protest for non-aecoptance, and notice thereof to the defendants. Objections were made to the admissibility of this testimony, and after argument, the Judge sustained the objection to the protest, and ruled that either by itself or in connection witli the other testimony it was inadmissible, and that “ the plaintiffs were not entitled to recover,” but made no entry in the ease. To this ruling the plaintiffs’ counsel excepted, and asked the Court to suspend further proceedings until they could consult with their clients who resided in New York, whether they should submit to a nonsuit, with the expectation of supplying the requisite testimony, or suffer a judgment to be entered and take an appeal. To this the defendants’ counsel objected, and said it was too late to move for a non pros, in a ease submitted to the Court without a jury, after the Court had decided it. The Judge, however, said the plaintiffs had the right to non pros, the case, and granted the delay asked for. Subsequently, on the same day, the plaintiffs’ counsel directed the entry of non pros., and a judgment of nonpros, was accordingly entered by the Court. On appeal by the defendants, it was Held :</p> <p>That the ruling by the Court, “ that the plaintiffs were not entitled to recover,” was not a verdict either in substance or in form, but the expression of the opinion of the Judge as a- Court, that the plaintiffs wore not entitled to recover, to be afterwards enforced by his verdict or finding, as a jury, for the defendants, and an entry of judgment accordingly, intervening which the plaintiffs had the right to suffer a nonsuit.</p> <p>The submission of a cause to the Court for trial, where the Judge acts both as Court and jury, does not deprive the plaintiff of his right to a nonsuit, and care should be taken to so conduct the trial as to afford him the same opportunity of exercising it, as if a jury were sworn.</p>

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>The bill in this ease was filed by the appellant on the 23d of February, 1867. Tt stated that the complainant and Henry Keerl were married in Baltimore, on the 8th of March, 1842, both at that time being citizens of the State of Maryland; and that they lived together as husband and wife in said city until 1845, when the said Henry deserted the complainant, and subsequently became a resident of Milwaukee, in the State of Wisconsin; and was at the filing of the bill a resident of Philadelphia. The bill then stated that the husband had no property in the State of Pennsylvania, and charged that about $4,000 was on deposit in the First National Bank of Baltimore, subject to the order of the Court, or was in the hands of Thomas M. Keerl, as trustee, arising from the sale of certain real property under the authority of the Superior Court of Baltimore City, in a cause pending in that Court; and that the said sum was the amount of money to which the husband would be entitled as appeared by the auditor’s report, awaiting ratification. The bill prayed for alimony out of this money for the complainant and her children. The bill was subsequently amended, to show that the auditor’s report had been ratified and confirmed. An injunction was issued to restrain the First National Bank and the trustee from paying the said money to the husband. Other proceedings were had not material to the issue involved in this appeal. The question on this appeal grows out of the plea of the husband to the jurisdiction of the Court, alleging that at the time the bill was filed, for three years before, and ever since, the complainant was a resident of the State of Pennsylvania, and domiciled therein; and that he was also for the same space domiciled in ■ Pennsylvania, and there resided. The complainant filed a replication to the plea, alleging that at the time of filing the bill she was not a resident of Pennsylvania, but was a resident of the State of Maryland. A commission was issued, and testimony was taken upon the issue of residence as presented by the plea and replication.</p> <p>Upon the hearing of this issue, the Court sustained the plea of the defendant and dismissed the bill. From the order allowing the plea, and dismissing the bill, the complainant appealed.</p> <p>The cause was argued before Bartol, C. J., Stewart, Grasos and Alvey, J.</p>

The bill in this case was filed by the appellant to enforce an alleged voluntary executed trust, and to compel John T. Morris, the alleged trustee, to restore the trust property or pay the value thereof in default of such restoration. The facts in the case were chiefly disclosed by documentary evidence.

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

Assumpsit. This action was originally instituted in the name of John C. Welch, against the appellee. On demand of the defendant a bill of particulars was filed, showing an indebtedness to Eliza J. Taylor, one of the appellants. After the issue was made up, the plaintiff’s death was suggested, and the cause continued until September Term, 1864, when it was referred to Wm. Sheppard Bryan, Esq., for arbitration.

The nature of the case together with the exceptions which were taken by the defendants, are stated in the opinion of the Court. The verdict and judgment being for the plaintiffs, the defendants on the 26th of February, 1870, the day following the entry of the judgment, made a motion for a new trial, and filed reasons, embracing the exceptions they had taken in support thereof.

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

<p>Appeal from the Circuit Court for Caroline County, in Equity.</p> <p>The ease is stated in the opinion of the Court.</p>

The appellees sued out an attachment against Moses Col-man and-Colman, and it was levied upon their goods; they thereupon, for the purpose of dissolving the attachment, gave a bond, the condition of which was to satisfy any judgment that might bo recovered against them. The attachment case was then proceeded with and a judgment in favor of the plaintiffs was obtained.

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The appeal in this case was taken by the plaintiffs from an order of the Court below, striking out the judgment by default against the casual ejector, quashing the writ of possession, and directing regular continuances from term to term to be entered. The facts of the case are sufficiently stated in the opinion of this Court.</p>

<p>Appeal from the Superior Court of Baltimore City, in Equity.</p> <p>The facts are sufficiently given in the opinion of the Court.</p>

<p>Priority of Mortgages, recorded within six months from their date, over later Judgment liens — Construction of the Code, Article XXIY, section 16, relating to the Recording of Mortgages.</p> <p>A judgment creditor is not a purchaser or mortgagee, within the letter or spirit of Article 24, section 16, of the Code.</p> <p>Where a judgment is recovered subsequent to the date of a ionafide mortgage, not recorded at the time of recovery of the judgment, hut recorded afterwards within the time prescribed by law, the judgment binds only the equity of redemption, and must be postponed to the rights of the mortgagee, without regard to the question of actual notice.</p>

David Kemp, late of Frederick county, in this State, bequeathed to his daughter, Mary Ellen Noonan, then wife of the appellant, and residing with him in the State of Kentucky, certain distributive portions of his personal estate. The testator appointed the appellees, David C. Kemp and E. Louis Cramer, his executors, and died soon after the date of his will.

<p>jEight of a Bailroad Company to divert a Stream of water flowing across the Line of its road — How the Bight to divert such stream may be acquired — Admissibility of Evidence de hors the Inquisition to show that the Attention of the Jury of Inquest was directed to the proposed Diversion — Invalidity of a Claim for damages by the Owner of the Land through which the stream flows, for Injury occasioned by its diversion.</p> <p>Under a charter conferring- on a Railroad company the power to acquire by condemnation, land for the construction of its road, the company have the right to divert, if they see fit to do so, a stream of water flowing across the line of their road.</p> <p>The right thus to divert a stream of water, does not depend upon an express grant to be made and specified in the inquisition itself, hut may be acquired by condemnation of the land, duly confirmed, and payment or tender of the damages awarded ; and proof de hors the inquisition is admissible to show that at the time of taking and before they signed the same, the attention of the jury of inquest was directed to the intended diversion.</p> <p>And where the attention of the jury is directed to such diversion, and the same is within the lines of the land condemned for the construction of the road, the owner of the land through which the road passes, has no remedy, either at law or in equity, for any injury that may result therefrom.</p>

<p>Judgment lien — Judgment creditor — Remedy by Attachment.</p> <p>Certain mortgaged property was sold under a decree of foreclosure, and the proceeds of sale, after allowance of expenses, &c., wore audited to the mortgagee, but were insufficient to pay the whole of the mortgage debt. A judgment creditor of the mortgagor and mortgagee, whose judgment was subsequent to the dates of the mortgages, issued an execution after the decree for the sale of the mortgaged property had been passed, and had it levied thereon. The sheriff forbore to sell in consideration of a promise by the debtors to pay the amount of the judgment at a time designated. The money not having been so paid, a veniti was issued, to which the sheriff made'return that the property had been sold at trustee’s sale. The judgment creditor then filed a petition in the equity case, seeking to have his judgment paid out of the amount audited to the mortgagee, and also filed exceptions to the auditor’s report and account. Held :</p> <p>1st. That the judgment was not a lien upon the interest or estate of the mortgagee in the mortgaged premises.</p> <p>2d. That the judgment creditor had no right to come into the case pending between the mortgagor and mortgagee, and have his judgment paid out of the fund audited to the mortgagee; he should have pursued his remedy at law by attachment against the fund in tho hands of the trustee.</p>

Appeae from tlie Superior Court of Baltimore City. On the 24th of February, 1868, a scire facias was issued to revive a judgment which the appellants had recovered on the 29th of June, 1855, against the appellee. The defendant pleaded the Statute of Limitations.

This was an action by the appellant against the appellee to recover an alleged indebtedness of her testator. The defendant demurred to the declaration which contained four counts. The Court sustained the demurrer, and the plaintiff appealed.

This appeal was taken from a decree of the Orphans’ Court of Baltimore city, refusing letters of administration, d. b. n. e. t. a., on the estate of Thomas Henning, to the appellant, and granting them to the appellee.

In addition to the facts of the case as given in the opinion of the Court, it may be further stated that after the final ratification of the sales, the proceedings were referred to the auditor, who stated four Accounts, viz: A, B, C and D, the last upon instructions of the complainant’s counsel. To Accounts A, B and C, and in part to Account D, the complainant excepted.

Appeals from the Circuit Court of Baltimore City. Augustus Mathiot, trustee, and Susan M. Gale, afterwards Anspach, being joint-tenants of certain lands, demised a portion thereof to Archibald C. Gibbs for a term of eleven years, ending July 31st, 1869. The lease contained, a covenant, that the lessee, at the end of his term, should be paid for his buildings'and improvements, their'value to be settled by arbitration.

The facts are sufficiently given in the opinion of the Court. At the trial below the plaintiff offered the following prayers, which wore rejected, and the instructions set out in the opinion of the Court given instead : 1.

Robert Swan died 6th of August, 1835. By his will he named James Swan and Dr. Smith, his executors, and made them devisees in trust, for certain specified purposes, of all his estate, charging it with the payment of his debts, and authorizing them to sell the real estate for that purpose.

The facts are sufficiently given in the opinion of the Court. At the trial below, the defendant, the Canal Company offered the following prayers, of which the Court (Motter, J.) rejected the second, sixth, seventh, eighth, ninth and tenth, and granted the first, third, fourth and fifth: 1.

The question involved in this cause was the right of the Washington County Commissioners to levy a tax on certain property, situated in that county, belonging to the Franklin Rail Road Company. The Company claimed exemption from taxation in virtue of certain Maryland statutes. The case was submitted to the Court below on an agreed statement of facts, and judgment was given for the Company.

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

<p>Appeal from the Court of Common Pleas.</p>

This action brought by the appellee against the appellant, was instituted in the Circuit Court for Baltimore County, was removed upon the application of the plaintiff to the Superior Court of Baltimore City, and thence at the instance of the defendant, removed to the Circuit Court for Carroll County.

<p>Practice — Liability of Comm,on Carriers modified by Special Contract — Presumption of Negligence</p> <p>The Court may properly refuse to allow the plaintiff’s counsel to argue a case before the jury, where there is no evidence in the cause legally sufficient, from which they could legitimately find a verdict for the plaintiff.</p> <p>B entered into a contract with the Baltimore and Ohio Railroad Company, for the transportation of certain live stock over its road, and in consideration of a reduction in the charge for freight, agreed to “release the railroad company from any and all claims which might arise for damage or injury to staid stock, whilst in the ears of the company, or for delay in its carriage, or for escape thereof from the cars, and generally from all claims relating thereto; except such as might arise from the gross negligence or default of the agents or officers of the company acting in the discharge of their several official duties.” In an action by B, against the railroad company to recover damages for certain cattle, which were lost and injured in their transportation over its road, it was Held :</p> <p>1st. That'by the contract the burden was imposed on the plaintiff of proving not merely that the live stock was injured and damaged by accident and delay occurring in their transportation, but also that these were caused by the gross negligence or default of the defendant’s agents.</p> <p>2nd. That the fact that some of the cattle were injured and lost by accidents oil the railroad, while in the course of transportation, that considerable delays occurred in their carriage, and that they were damaged and lessened in weight and value from this cause, does not raise the presumption of negligence or default on the part of the agents of the railroad company within the meaning of the contract.</p>

The facts of the ease are sufficiently stated in the opinion of the Court. At the trial of the cause below, the defendant took four exceptions to the rulings of the Court in relation to the admissibility of testimony.

<p>Construction of a Contract — Breach — Measure of Damages.</p> <p>A mercantile house in New York, by letter, dated the 19th of February, 1869, engaged the services of K from that date to the 30th of .Tune following, as their salesman in the city of Baltimore, at a certain rate per month. K entered upon the service and discharged its duties without complaint, until he was dismissed therefrom hy a letter dated the 8th of May, 1869, on the alleged ground that ho had been attending to the business of another house. In a suit brought by K against Ins employers to recover damages for his wrongful dismissal from their service, it was Held :</p> <p>1st. That hy the true construction of the contract, the plaintiff did not agree to give his whole time to the business of the defendants, but engaged to serve them in good faith, and to the extent of his ability as salesman in the city of Baltimore, in the sale of their goods; but if doing this did not require his whole time, he could, without violating his engagement with them, occupy the remainder in any other pursuit which was not inconsistent with his contract, not injurious to their interests, and which did not impair the value of his services to them as salesman of their goods in that market.</p> <p>2d. That the measure of damages was fixed hy the contract — a stipulated salary for a specified period — and the plaintiff was entitled to recover his whole salary under the contract, from the 1st of May (the date to which he had been paid) to the 30th of June inclusive, and the defendants could not claim a reduction therefrom of the amount which the plaintiff earned subsequent to his discharge and before the 30th of June, in another employment, they having failed to show that he could not have earned it without a violation of his duty under the contract, if ho liad not been discharged.</p>

This was au action brought by the appellees to recover upon a policy of insurance issued by the appellant. The facts of the case are sufficiently set out in the opinion of the Court. The verdict and judgment were for the plaintiffs and the defendant appealed.

On the 22d of January, 1866, Dunning B. McNair, the grandfather of tho appellee, acting for his daughter, Annie Coyle, mother and guardian of the appellee, deposited with the appellants, hjyikprs and brokers in thTTcfEy'of Washington, for safe keeging,..thirteen coupon bonds of the United States, for $1000 each, dated the 1st of November, 1865, the interest thereon payable in gold semi-annually on the 1st of May and November.

George Hoblitzell, of Alleghany county, in 1842, was indebted to Hopkins Bros. & Co., in the sum of $5,010.95. To secure this sum, he passed to Hopkins Bros. & Co. four single bills, each for the sum of $1,252.73, payable respectively June 1st, 1843; June 1st, 1844; June 1st, 1845, and June 1st, 1846, with interest on each from the day of their date.

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

<p>Nuisance — Obstruction of a Highway — When right of Action arises — What constitutes Special damage.</p> <p>The obstruction of a highway is a common nuisance and being a wrong of a public nature, tlie remedy is by indictment; it is not in itself a ground of civil action by an individual, unless be has suffered from it some special and particular damage, different not merely in degree, but different in kind from that experienced in common with other citizens. In such case the actual damage constitutes the gist of the action, and must bo averred and proved.</p> <p>The more fact that by reason of the obstruction, the plaintiff was obliged to travel a longer and more circuitous route, is not such special damage as to entitle him to maintain an action.</p> <p>Though the plaintiff may suffer more inconvenience than others from the obstruction, by reason of his proximity to the highway, that will not entitle him to maintain an action.</p> <p>The rules of law allowing such actions ought not to he extended.</p>

First Exception: The plaintiff, to support the issue on his part joined, offered in evidence and proved the execution and delivery by the defendant of the policy of insurance, dated the 5th of October, 1858, insuring certain property of the plaintiff, situate in the town of Hillsborough, and that he had regularly paid the interest on his premium note, and the taxes assessed by, the company to August, 1862, inclusive; and that a pari of the property insured, consisting of a…

The facts of the case, together with the exceptions taken by the defendants, are sufficiently stated in the opinion of the Court.

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

Motion to rescind an order quashing a writ of restitution. The present proceeding is supplementary to the case between the same parties, reported in 33 Md., 246. Upon the reversal by this Court of the judgment appealed from, a writ of restitution was issued by the clerk of this Court upon the application and direction of the attorney for the appellant.

<p>Appeal from tlie Circuit Court for Baltimore County, in Equity.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The ease is stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Allegany County, in Equity.</p> <p>The opinion of the Court sets forth the facts of the case sufficiently.</p>

This is an action of assumpsit brought by the appellant against the appellee. The declaration professed to contain the common money counts, and a count for money found to be due from the defendant to the plaintiff, upon an account stated between them, but there was an omission of the words “ and for” directed by the Code, (Art. 75, sec. 22,) to be prefixed to each successive count or statement of a cause of action, after the first.

<p>Removal of Causes — Construction of section 8 of Article 4 of the Constitution of 1867 — From what an Appeal will lie.</p> <p>Under the 8th section of Article 4 of the Constitution of 1867, which makes it the duty of the Judges, upon suggestion in writing, supported by affidavit, that a fair or impartial trial cannot be had in such Court, to order the record of proceedings, “to be transmitted to some other Court (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases,” the Judges may in their discretion order the record of proceedings to be transmitted to a Court of a different circuit, even though the party applying should state in his suggestion that ho did not elect such Court.</p> <p>From an order striking out a judgment solely upon the ground that the Court had no jurisdiction of the cause, and remanding the record to the Court whence the cause had been removed, an appeal will lie, notwithstanding that the motion to strike out the judgment was made during the term at which it was rendered.</p>

<p>Appeal from the Baltimore City Court.</p> <p>The case is sufficiently stated in the opinion of the Court.</p>

Ejectment instituted by the appellee against the appellants, to try the title to and obtain possession of a lot of ground on Lombard street, in the city'of Baltimore. Plea “ not guilty” and issue thereon.

Ejectment instituted by the appelknts against the appellee, to recover possession of a tract of land in Kent county. George Real, on the 22d of May, 1828, made and executed his will, and died the same year without issue. The testator had adopted as his son, his wife’s nephew, George Real Hines, and treated and educated him as such; and by a clause in his will, which will be found in the opinion of this Court, he devised to this adopted son the land in controversy.

<p>Appeal from the Commissioner of the Land Office.</p>

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

This was an action of assumpsit brought by the appellant, to recover from the appellee an alleged over-payment, made under the circumstances set forth in the opinion of the Court.

<p> When an Injunction should not issue. </p> <p>A bill by the assignee of the original lessee of certain promises, for an injunction to restrain the landlord from proceeding by distraint, to collect certain rent which he claimed to bo due to him and in arrear, charged that the rent had been paid to the landlord by his lessee, and that such payment was evidenced by an account furnished by the former to the latter. The account was not exhibited with the bill, and no reason assigned for its non-production; the injunction issued as prayed. On an appeal by the landlord, it was Held :</p> <p>1st. That to support the averment of payment, the account should have been exhibited, or some satisfactory reason assigned for its non-production, and in the absence of such prima facie proof, the injunction ought not to have been granted.</p> <p>'2d. That the injunction ought not to have been granted for the further reason that the complainant had a full, complete and adequate remedy at law, by an action of replevin, of trespass, or by a special action on the case, and by a suit against his assignor for a breach of his contract in failing to pay the rent as it accrued.</p>

This was an action of assumpsit brought by the appellee, a property agent or broker, to recover from the appellant commissions for services rendered in procuring a purchaser for a certain house in the city of Baltimore. The pleas were, never indebted as alleged, and did not promise as alleged.

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>This case was before this Court on a former appeal, {vide Stonebraker, et al. vs. Stonebraker, 33 Md., 252.) 'This Court reversed the decree of the Circuit Court, and remanded the cause that a new decree might be passed in conformity with the opinion of the Appellate Court, filed in the case. A decree was passed by the Circuit Court, without further proceedings, in accordance with the directions of this Court. From this decree the present appeal was taken.</p> <p>A motion was made to dismiss the appeal.</p>

On the 15th of August, 1844, Mary E. Browne made her • will, devising and bequeathing all her property to the Rev. Thomas Lilly, and appointing him h@r sole executor.

This is an appeal from an order of the Court below overruling a motion to quash the attachment issued at the suit of the appellee against the goods, &c., of De Witt C. Cary. The motion to quash Avas made by a claimant of the property attached under a subsequent attachment.

This was au action of trespass brought by the appellant against the appellee, to recover damages for alleged injury to certain leasehold property of the former, in Baltimore comity. The facts of the case are sufficiently stated iu the opinion of the Court.

<p>Corporations — Individual Liability of Stockholders of a Manufacturing Company, under Section 52 of Article 26 of the Code of Public General Laws — Extent of such Liability — How enforced.</p> <p>The individual liability of a stockholder of a manufacturing company, (organized under Article 20 of the Code of Public General Laws,) for debts due by the company, may be enforced in an action at law against such stockholder, by one creditor, even where others are shown to exist.</p> <p>The extent of the liability of each stockholder is measured by the par value of the stock held by him at the time the debts were contracted, continues at least until all the capital stock is paid in, and is in no way affected by the amount thereof that mav at any time remain unpaid.</p> <p>[The counsel for tlie appellee further relied on the argument made by Mr. Howland, in behalf of the appellee, in the succeeding case of Norris vs. Wrenschall, argued at the same time —Hep ]</p>

The appellee in this case having'recovered judgment against The Baltimore City Concrete Stone Company, (incorporated under the provisions of Article 26 of the Code, relating to manufacturing companies,) for services rendered the company as superintendent, instituted on the 23d of June, 1870, an action under the Act of 1864, ch. 6, against the appellant, a stockholder, to enforce his individual liability for the debt, under section 52 of Article 26 of the Code.

This was an action brought by the appellants, creditors of a corporation known as “The Baltimore Chrome Mining and Manufacturing Company,” against the appellee, a stockholder therein, to charge him for the debt due by the company under the provisions of section 52 of Article 26 of the Code of Public General Laws. Judgment was rendered for the defendant and the plaintiffs appealed.

Tlie facts of the ease, together with the exceptions which were taken in the Court below by the defendant, are sufficiently stated in the opinion of this Court. The verdict and judgment being for the plaintiffs, the defendant appealed.

This was an action brought in the Circuit Court for Baltimore county, by the appellee, against the appellant, to recover a bill for tolls incurred during the years 1867, 1868, and a part of 1869. The defendant pleaded the general issue. Upon the suggestion and affidavit of the defendant, the case was removed to the Superior Court of Baltimore city on the 22d of May, 1869; it was submitted to the Court for determination, without the aid of a jury, on the 18th of March, 1870.

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The facts are given in the opinion of the Court.</p> <p>At the trial below, the plaintiff offered the following prayers:</p> <p>1. 'Even should the jury find from the evidence that the conductor of the train in question had a right under the regulations of the company, and the contract made with the plaintiff, should they find such contract, to put the plaintiff off the train in question, the plaintiff is entitled to recover, if they find that in so doing he acted in an unwarrantable manner, as to time or place or mode thereof.</p> <p>2. That even should the jury find from the evidence that the plaintiff would have been confined by the terms of his ticket to the particular train on which he then was; still, if they further find that before leaving said train, the plaintiff, as a matter of precaution, enquired of an authorized agent of the company, whether he would be permitted to lie over under the check he then held, and was informed that “he would be,” that said cheek was good until taken up, then the fact of his ticket or check having contained any such instruction, would not of itself prevent the plaintiff from recovering.</p> <p>3. Even should the jury find from the evidence that the conductor of the train in question had a right to put the plaintiff off; the plaintiff is entitled to recover, if they find from the evidence, that in so doing, the conductor required him to leave while the train was in motion, or put him off at a place where there was no station.</p> <p>4. Even if the jury should find from the evidence that the conductor of the train in question, had a right to put the plaintiff off, the plaintiff is entitled to recover, if they find from the evidence, that in so doing, the said conductor put him off at a place where there was no station or house near at hand, or any adjacent place for shelter or food, or at any unusual place.</p> <p>The following instruction was asked by the defendant:</p> <p>If the jury shall find from the evidence that the plaintiff, on the 1st day of May, 1867, purchased at New York, a through ticket from that place to Baltimore, over the New Jersey railroad and P. W. & B. R. Road, and on that day proceeded on his journey as far as Perryville, on the last named road, where he left the train; and if the jury shall further find that after passing Philadelphia, the then conductor of the train took up said through ticket and gave plaintiff the cheek in lieu thereof, which has been offered in evidence; and if the jury shall further find that the plain tiffj on the 6th day of said May, got upon the defendant’s train for Baltimore at Havre-de-Grace, and the then conductor refused to take said check, but informed the plaintiff that he must pay his fare to Baltimore, or he would be obliged to stop the cars and put him off, and that the defendant refused to pay said fare, and the said plaintiff was then put off, then the plaintiff is not entitled to recover in this case; provided the jury shall find that no more force than was necessary was used in putting said plaintiff off the train, even if the jury shall further find, that on arriving at Perryville on the train, on the said first day of May, the plaintiff enquired from a man at the window of the ticket office of the defendant at that place, whether said check would be good to take him on to Baltimore another day, and was told by said man that it would.</p> <p>The Court rejected the first, second and third prayers of the plaintiff, and granted the fourth, as also the prayer of the defendant. The plaintiff excepted to the ruling of the Court in rejecting his prayers and granting the prayer of the defendant, and the verdict and judgment being against him, he appealed.</p>

Cross-Appeals from the Superior Court of Baltimore City. This was an action brought by the appellant in the first of the above cases, to recover damages growing out of an alleged breach of a contract with the appellees for the sale of gold.

The facts are given iu the opinion of the Court. At the trial below, the following bills of exception were taken: First Exception: The appellant in order to prove that he had not been benefited by the condemnation of the parcels of ground, mentioned in the proceedings of the Commissioners for Opening Streets as having been condemned, offered in evidence the ordinances of the Mayor and City Council of Baltimore, of 1826, ch. 11, section 46, and Article 22, section 46, of the…

This was an action of debt on three several bonds of William Button, as collector of county taxes for the eleventh collection district of Baltimore county, for the years 1864, 1865 and 1866 respectively. The action was against the appellee as one of the sureties in each of the bonds. The declaration contained three counts. The defendant demurred generally to each count. The Court (Scott, J.,) sustained the demurrer, and gave judgment for the defendant.

This action was brought by the appellees against the appellant upon the following check : “$1,200. Baltimore, June 16th, 1869. “ Cecil National Bank of Port Deposit, Md., pay to Moses Moses, or order, twelve hundred dollars. “Jacob Tome & Co.” “ Endorsed — Moses Moses, Elliott & Blacklar, pay J. B. Ramsay, Cash, lor collection account, Franklin Bank, Baltimore. Chas.

This suit was instituted in the Superior Court of Baltimore city by the appellee against the appellant, and subsequently upon the affidavit of the latter, was removed to the Circuit Court for Howard county. The cause of action was a policy of insurance eifected by the appellee in the office of the appellant, on the 17th of May, 18o7, upon the life of her husband, the Rev. Henry A. Wise of Baltimore city, for the sum of $20,000.

■The material allegations of the hill of complaint in this' case, which was filed by the appellants against the appcliees, are stated in the opinion of the Court.

<p>W. R conveyed to M. R a tract of land by deed, executed and acknowledged on the 28th of October, 1839, and recorded on the following day. As a security for the purchase money, M. It executed a deed of mortgage, of like date, of the same tract, hut the mortgage deed was not acknowledged and delivered until the 14th of November, following. The tract was afterwards sold to L, in 1862; and W. R having died in 1867, his widow brought suit against L to recover dower in the tract. lltiLU :</p> <p>That the widow was entitled to dower.</p>

<p>Appeals from the Superior Court of Baltimore City, in Equity.</p> <p>The facts are stated in the opinion of the Court.</p>

This was a proceeding by scire facias, instituted by the appellees, to enforce a mechanic’s lien for a furnace, range and hot-air fixtures, &c., furnished by them, and used in the construction of a house in the city of Baltimore, of which the appellant was the owner. While the house was being built, on the 9th of October, 1868, the appellant agreed to sell the same to Charles Ranstead upon the terms mentioned in the agreement. The house was to be finished like one adjoining.

This suit was instituted by the appellants, to recover from the appellee the sum of $700 for one year’s rent, from the 1st of July, 1869, of a dwelling house on Fayette street, upon the theory that the defendant rented the house from the plaintiffs for one year, held over for a second year, and left without legal notice, thereby becoming liable for a third year. To recover rent for this third year, was the object of this suit.

This suit was instituted by the appellee against the appellant. The cause of action was a single bill of the appellant, dated the 24th of October, 1868, for one thousand dollars, with interest, payable twelve months after date, to the order of the appellee, and by him endorsed. There were subsequent endorsements thereon. A further statement of the ease will be found in tlie opinion of the Court.

Appeals from the Circuit Court for Montgomery County, in Equity. These appeals having been dismissed without argument upon their merits, a motion was made to re-instate them.

<p>Guardian and Ward — Foreign Guardian — Proceeds of the Sale of an Infant's real estate under sections 36 and 37, of Article 16, of the Code.</p> <p>Where the real estate of a non-resident infant has been sold by a decree of a Court of Equity, under the provisions of sections 36 and 37, of Article 16, of the Code, on the application of the guardian, appointed and resident in this State, the funds arising from such sale, will not bo transferred to the guardian, appointed in the State where the infant resides.</p>